Allahabad High Court
Makkee Hasan And 5 Others vs State Of U.P. And Another on 31 October, 2022
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- APPLICATION U/S 482 No. - 19061 of 2022
Applicant :- Makkee Hasan And 5 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Abhishek Ankur Chaurasia
Counsel for Opposite Party :- G.A.
Hon'ble Narendra Kumar Johari,J.
Learned counsel for the applicants and learned A.G.A. for the State are present.
This petition under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings of the Case No. 350 of 2022 (State Vs. Makkee Hasn and others) as well as charge sheet dated 25.9.2021 including cognizance/summoning order dated 19.1.2022 arising out of Case Crime No. 80 of 2021 under Sections 498A, 323 IPC and 3/4 of D.P. Act, P.S. Chilhiya, District Siddharth Nagar pending in the Court of Additional Civil Judge (J.D.)/Judicial Magistrate, Court No. 2, Siddharth Nagar and further to stay the further proceedings of Case No. 350 of 2022 as well as charge sheet and summoning order.
Learned counsel for the applicants submits that in the case F.I.R. has been lodged by police under Sections 498A, 323 IPC and 3/4 of D.P. Act, P.S. Chilhiya, District Siddharth Nagar against the applicants. Thereafter, charge-sheet has been submitted after investigation on 25.09.2021 and learned Magistrate has taken cognizance of offence on 19.1.2022. He further submits that during investigation, one of the accused Noor Hasan has died on 4.5.2021. The description of death of Noor Hasan has also been entered in the charge sheet dated 25.9.2021 but the Trial Court did not pay the attention towards the death of Noor Hasan and took the cognizance against all the accused persons as shown in the FIR that too on printed proforma. So far as the description of accused are concerned, the Trial Court neither mentioned the parentage of accused nor mentioned the address of accused persons.
Learned counsel for the applicants has based his argument on the ground that according to law learned Magistrate has not applied his judicial mind for taking cognizance of offence, which is contrary to law. Hence, impugned order dated 19.1.2022 is liable to be quashed.
Learned A.G.A. has opposed the aforesaid prayer. However, he did not dispute that the impugned order is on printed proforma.
On the basis of First Information Report lodged by the complainant Smt. Sahin on 25.08.2021, a Criminal Case No. 350 of 2022 (State Vs. Makkee Hasn and others), under Sections 498A, 323 IPC and 3/4 of D.P. Act, F.I.R./Crime No. 80 of 2021 has been filed. After investigation, charge-sheet has been filed on 25.09.2021 and learned Magistrate concerned (Judicial Magistrate, Siddharth Nagar) has passed the cognizance order dated 19.1.2022 upon the police report. It shows that cognizance order has been passed on the printed proforma by filling the date and sections.
The word cognizance is used to indicate the point of time when the Magistrate or Judge, first takes judicial notice of an offence. It is the application of judicial mind to the averments in the police report/complaint, that constitutes the cognizance. It is apparent on record that summoning order after taking cognizance on 19.1.2022 has been passed by the Magistrate concerned on printed proforma by filling up the gap.
Learned counsel for the applicants placed reliance on the case laws Basaruddin and others vs. State of U.P. and others 2011 (1) GIC 335 (ALLD.) (LB) in which the court has held that by filling the typed proforma, the accused has been summoned by the court in mechanical way. It is required by law that there must be application of judicial mind and Magistrate has to satisfy himself regarding prima facie case upon which cognizance can be taken and accused can be summoned. Apparently, the summoning order passed by the learned Magistrate suffers from non-application of mind while taking cognizance of the offence.
Learned counsel for the applicants has also placed reliance on the judgment passed in Kavi Ahmad vs. State of U.P. and others (Criminal Revision No. 3209 of 010) and Abdul Rasheed and others vs. State of U.P. and others 2010 (3) GIC 761 (ALLD.) that whenever, any police report/complaint is filed before Magistrate, it is mandatory for Magistrate to apply his mind to the fact stated in the report/complaint for taking cognizance and the Magistrate may summon the accused if he finds that prima facie there is sufficient material on record to proceed with the matter. It has been held in the case of Arvind Pandey and others vs. State of U.P. and others (Application U/s 482 Cr.P.C. No. 15372 of 2019) by this Court that judicial orders cannot be allowed to be passed in a mechanical manner either by filling in blank on a printed proforma or by affixing a ready made seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot be allowed to perpetuate. This reflects not only lack of application of mind to the facts of the case but is also against the settled judicial norms.
In view of the above, the summoning order dated 19.1.2022 is hereby quashed and matter is remanded back to the court concerned to pass a fresh order upon police report dated 25.09.2021, expeditiously in accordance with law.
At this stage, the petition is allowed.
Order Date :- 31.10.2022
AKK
