Allahabad High Court
Gulam Hasan And 2 Others vs State Of U.P. And Another on 26 April, 2023
Bench: Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 66
Case :- APPLICATION U/S 482 No. - 6008 of 2023
Applicant :- Gulam Hasan And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Pavan Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Varma,J.
Heard learned counsel for the applicants and learned A.G.A. for the State. Perused the record.
This application under Section 482 Cr.P.C. has been filed to quash the order dated 18.12.2021 passed by Civil Judge (Jr. Div.)/ Fast Track Court, Court No.2 Deoria and further proceeding thereof in case no.18149/2021 (State vs. Gulam Hasan and other) and charge-sheet dated 22.9.2020 submitted by the investigating officer in case crime no.23/2019, under Sections 498A, 323, 504, 506, 406 I.P.C. and 3/4 D.P. Act, P.S. Mahila Thana, District Deoria.
It has been submitted by learned counsel for the applicants that the concerned Judicial Magistrate did not apply his judicial mind at the time of passing the summoning order dated 18.12.2021 as the impugned summoning order has been passed on a printed proforma, only the blanks have been filled up, which is not permissible under the law. A certified copy of the impugned summoning order is annexed as Annexure-4 to the affidavit.
Elaborating his submissions, learned counsel for the applicants submitted that in the printed proforma the name of the applicants, the charged sections, police station, the date of the order and date of appearance have been filled by hand. Learned counsel for the applicants further submits that the court below while summoning the applicants has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling the material and visualizing the case on the touchstone of probability should not summon accused persons to face the trial.
Learned counsel for the applicants has confined his argument only to the extent that the impugned summoning order is a proforma based order and the same has been passed without applying his judicial mind, therefore, is illegal and liable to be quashed.
On the other hand, learned AGA has opposed the present application made by learned counsel for the applicants but could not dispute the submissions made by learned counsel for the applicants.
The arguments advanced on behalf of the applicant have substance. The use of proforma in passing the judicial order is not proper and the order of summoning the applicants has been passed without application of mind.
In the case of Fakhruddin Ahmad Vs. State of Uttranchal and another, (2008) 17 SCC 157, the Hon'ble Supreme Court has observed that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by "taking cognizance". Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs title emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender.
This Court in the case of Ankit Vs. State of U.P. and another, [2009 (9) ADJ 778], while relying upon a number of decisions of the Apex Court has held as under:
"Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind." (Emphasis supplied)
The summoning of an accused in a criminal case is a serious matter and the order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto.
In light of the judgments referred to above, it is explicitly clear that the order dated 18.12.2021 passed by Civil Judge (Jr. Div.)/ Fast Track Court, Court No.2 Deoria does not stand the test of the law laid down by the Apex Court.
Accordingly, the impugned summoning order dated 18.12.2021 is hereby quashed. The court concerned is directed to pass a fresh order on the police report, preferably within a period of six weeks from today.
With the above direction, the application stands allowed.
A copy of this order be sent to the court concerned forthwith for compliance.
Order Date :- 26.4.2023
S.S.
