Allahabad High Court
Shahban @ Kallu And Another vs State Of U.P. Thru. Addl. Chief Secy. ... on 2 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2024:AHC-LKO:9862
Court No. - 27
Case :- APPLICATION U/S 482 No. - 928 of 2024
Applicant :- Shahban @ Kallu And Another
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home And Another
Counsel for Applicant :- Manish Singh Chauhan,Gyanendra Singh
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Gyanendra Singh, the learned counsel for the applicants, Sri Akhilesh Kumar Vyas, the learned AGA for the State and perused the record.
2. By means of the instant application filed under Section 482 Cr.P.C., the applicants have sought quashing of the order dated 10.07.2023 passed by the Special Chief Judicial Magistrate (Customs), Lucknow in Criminal Case No. 126569 of 2022 (State v. Shaban @ Kallu & Anr.) arising out of Case Crime No. 704 of 2021, under Sections 323, 406, 506, 392 IPC and Section 67, 67a of the IT Act, Police Station Chinhat, District Lucknow, taking cognizance of offences and summoning the applicants to face trial.
3. Submission of the learned counsel for the applicants is that the order dated 10.07.2023 is bad as it takes cognizance of different sets of offences against the applicants whereas Section 190 Cr.P.C. requires the court to take cognizance of offence. His submission is that it is settled law that cognizance is taken of offence and not of the offender. As per the learned counsel for the applicants, it was open for the trial court to have taken cognizance of the offences and thereafter to have proceeded to summon different applicants for trial of different offences.
4. Earlier, the trial court had passed an order dated 22.12.2022, taking cognizance of offences under Sections 323, 406, 506 IPC and 67, 67a of IT Act and had summoned the accused persons. The applicants had challenged the order dated 22.12.2022 by filing an application under Section 482 Cr.P.C. No. 5388 of 2023 which was allowed by means of an order dated 29.05.2023. The submission of learned counsel for the applicants is that by means of the order dated 29.05.2023, merely the order summoning the accused persons had been set aside and the order of taking cognizance of the offences has not been interfered with.
5. A perusal of the order dated 29.05.2023 indicates that the submissions were advanced on behalf of the applicants challenging validity of the summoning order only and no submissions were advanced assailing validity of the order taking cognizance of the offences. Therefore, the order dated 22.12.2022, so far as it takes cognizance of the offences sunder Sections 323, 406, 506 IPC and Sections 67, 67a of the IT Act, remains intact.
6. The learned counsel for the applicants has challenged the order dated 10.07.2023 on the ground that the trial court has again taken cognizance of the offences, which offences had already been taken cognizance of by the order dated 22.12.2022. He has placed reliance on the judgments of the Hon'ble Supreme Court in the cases of Fakhruddin Ahmad v. State of Uttaranchal, (2008) 17 SCC 157 and Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609.
7. In Fakhruddin Ahmad (supra), the Hon'ble Supreme Court answered in the following words the question as to 'what is meant by the expression "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190 of the Code?'
"14. The expression "cognizance" is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit v. State of W.B.: (AIR 1963 SC 765)
"19. ... The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means--become aware of and when used with reference to a court or Judge, to take notice of judicially."
Approving the observations of the Calcutta High Court in Emperor v. Sourindra Mohan Chuckerbutty [ILR (1910) 37 Cal 412], the Court said that "taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence."
(emphasis supplied)
15. Recently, this Court in Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492, speaking through C.K. Thakker, J., while considering the ambit and scope of the phrase "taking cognizance" under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Supdt. & Remembrancer of Legal Affairs v. Abani Kumar Banerjee AIR 1950 Cal 437 which were approved by this Court in R.R. Chari v. State of U.P. AIR 1951 SC 207. The observations are:
"7. ... What is 'taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g. ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
16. From the aforenoted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by "taking cognizance". Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action.
17. 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 little 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."
8. In Sunil Bharti Mittal (supra), the Hon'ble Supreme Court held that: -
"47....The expression "taking cognizance" has not been defined in the Code. However, when the Magistrate applies his mind for proceeding under Sections 200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in Chief Enforcement Officer v. Videocon International Ltd.(2008) 2 SCC 492, in the following words:
"19. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a court or a Judge, it connoted 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. 'Taking cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence."
48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."
9. In case the submission of the learned counsel for the applicants that by means of the order dated 29.05.2023 passed by this Court in application under Section 482 Cr.P.C. No. 5388 of 2023, merely the summoning order was set aside and the cognizance order was not set aside, the earlier cognizance order would stand and the trial court was well within its rights to summon the accused persons, which has been done by the impugned order dated 10.07.2023.
10. So far as the contention of the learned counsel for the applicant that by means of the order dated 10.07.2023, the Court has taken cognizance of offenders and not offences, in view of the law laid down by the Hon'ble Supreme Court in Fakhruddin Ahmad (supra) and Sunil Bharti Mittal (supra) cited by the learned counsel for the applicants himself, there is no specific form prescribed for an order taking cognizance. The order dated 10.07.2023 reflects that the trial court has taken cognizance of offences committed by each of the applicants. In defect in form of the order would not cause a failure of justice to the applicants.
11. The jurisdiction under Sections 482 Cr.P.C. is to be exercised to prevent the abuse of the process of law or otherwise to secure the ends of justice. Even if the impugned order suffers from some formal defects, the same does not in any manner defeat the ends of justice or cause a failure of justice.
12. The application lacks merit and the same is accordingly dismissed.
Order Date :- 2.2.2024
Pradeep/-
