Smt. Viju Mishra And 5 Others vs State Of U.P. And Another
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Allahabad High Court

Smt. Viju Mishra And 5 Others vs State Of U.P. And Another on 20 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:90306
 
Court No. - 91
 

 
Case :- APPLICATION U/S 482 No. - 21078 of 2021
 

 
Applicant :- Smt. Viju Mishra And 5 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Arun Kumar Pandey
 
Counsel for Opposite Party :- G.A.,Shri Krishna Mishra
 

 
Hon'ble Prashant Kumar,J.
 

1.Heard Shri Arun Kumar Pandey, learned Counsel for the applicants, Shri S.K. Chandraul, learned A.G.A. for the State-opposite party No., Sri Shri Krishna Mishra, learned counsel for the opposite party no.2 and perused the record..

2.The present application under Section 482 Cr.P.C. has been filed on behalf of the applicants seeking quashing of the charge-sheet dated 28-02-2020, cognizance order dated 09-06-2020 as well as entire proceedings of Criminal Case No. 12187 of 2020 (State Vs. Viju Mishra and others) arising out of case crime no. 236 of 2019, under Sections 147, 452, 323, 504, 506 IPC, P.S. Kidwai Nagar, district Kanpur Nagar, pending in the court of C.M.M. Kanpur Nagar.

3.Learned Counsel for the applicants submits that the charge sheet in the aforesaid case was filed against the applicants, but while taking cognizance vide order dated 09-06-2020, learned Magistrate has committed a gross error and proceeded without application of mind whereby he did not mention in the first portion of the impugned order that under what section the charge sheet has been filed and thereafter, in the operative portion of the impugned order, he has only taken cognizance against the accused-applicants and has accordingly summoned them, thus, he submits that the impugned order appears to be passed without application of mind and has been passed in a cursory manner.

4. Learned counsel for the applicants further submits that by the order dated 09-06-2020 cognizance taken by the learned Magistrate on printed proforma without assigning any reason is abuse of process of law.

5. Learned counsel for the applicants further submits that after submission of charge sheet the applicants have not been summoned and the trial court while summoning the applicant have 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 trial court without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the trial court has not taken into consideration the material placed before the trial court along with charge sheet and, therefore, the trial court has materially erred in summoning the applicants. The trial court has summoned the applicants through a printed order, which is wholly illegal.

6. It is vehemently urged by learned counsel for the applicants that the impugned cognizance order dated 09-06-2020 is not sustainable in the eye of law, as the same has been passed in mechanical manner without applying the judicial mind, because on the face of record itself it is apparent that impugned cognizance order dated 09-06-2020 has been passed by the Magistrate concerned on printed proforma by filling up the gaps, therefore, the same is liable to be quashed by this Court.

7. Learned counsel for the applicants has given much emphasis that if the cognizance has been taken on the printed proforma, the same is not sustainable.

8. Per contra, Sri S.K. Chandraul, learned A.G.A. for the State submits that considering the material evidences and allegations against the applicants on record, as on date, as per prosecution case, the cognizable offence against the applicants is made out, therefore, application is liable to be dismissed but conceded that the leaned Magistrate has taken cognizance on the printed proforma. This case can be decided, at this stage, without issuing notice to opposite party no.2 and without calling for a counter affidavit.

9. I have heard the learned counsel for the parties and perused the record.

10. The main issue for consideration before this Court is that whether the learned Magistrate may summon the accused person on a printed proforma without assigning any reason and take cognizance on police report filed under Sections 173 of Cr.P.C. In this regard, it is relevant to mention here that a Court can take cognizance of an offence only when condition requisite for initiation of proceedings before it as set out in Chapter XIV of the Code are fulfilled. Otherwise, the Court does not obtain jurisdiction to try the offences under section 190 (1) of the Cr.P.C. provided that "subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

"(a) upon receiving a complaint of facts which constitute such offence,

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."

11. At this juncture, it is fruitful to have a look so far as the law pertaining to summoning of the accused persons, by taking cognizance on a police report filed under section 173 of the Cr.P.C., is concerned and the perusal of the case law mentioned herein below would clearly reveal that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since, it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the material collected by the Investigating Officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the law on the subject and the orders of Magistrate does not suffers from non-application of judicial mind while taking cognizance of the offence.

12. In the case of Bhushan Kumar and Anr. v. State (NCT of Delhi) and Anr., AIR 2012 SC 1747, the Hon'ble Apex Court was pleased to observe that section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.

13. In the case of Kavi Ahmad Vs. State of U.P. and another passed in Criminal Revision No. 3209 of 2010, wherein order taking cognizance of offence by the Magistrate under Section 190(1)(b) on printed proforma without applying his judicial mind towards the material collected by the Investigating Officer has been held illegal.

14. In view of the above, this Court finds and observes that the conduct of the judicial officers concerned in passing orders on printed proforma by filling up the blanks without application of judicial mind is objectionable and deserves to be deprecated. 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, whereas the impugned summoning order was passed in mechanical manner without application of judicial mind and without satisfying himself as to which offence were prima-facie being made out against the applicant on the basis of the allegations made by the complainant. the impugned cognizance order passed by the learned Magistrate is against the settled judicial norms.

15. In light of the judgments referred to above, it is explicitly clear that the order dated 09-06-2020 passed by the court concerned is cryptic and does not stand the test of the law laid down by the Hon'ble Apex Court. Consequently, the cognizance order dated 09-06-2020 cannot be legally sustained, as the Magistrate failed to exercise the jurisdiction vested in him resulting in miscarriage of justice.

16. Accordingly, the present Application U/S 482 Cr.P.C succeeds and is partly allowed. The impugned cognizance order dated 09-06-2020 passed in Criminal Case No. 12187 of 2020 (State Vs. Viju Mishra and others) arising out of case crime no. 236 of 2019, under Sections 147, 452, 323, 504, 506 IPC, P.S. Kidwai Nagar, district Kanpur Nagar is hereby set aside and the court concerned, is directed to decide afresh after taking cognizance and summoning the applicant and pass appropriate orders in accordance with law keeping in view the observations made by this Court as well as the direction contained in the judgments referred to above within a period of two months from the date of production of a copy of this order.

Order Date :- 20.5.2024

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