[Cites 27, Cited by 0]
Bombay High Court
Mahavir Singh Charan And Anr vs State Of Maharashtra And Anr on 23 March, 2026
2026:BHC-AS:13804
WP-1716-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1716 OF 2025
1. Mahavir Singh Charan,
Male, Aged about 60 years, Occ: Retd.,
Residing at 217, Block 5,
Rangoli Gardens, Panchyawala,
Jaipur - 302034.
2. Garima Charan,
Female, Aged about 55 years, Occ: Nil,
Residing at 217, Block 5,
Rangoli Gardens, Panchyawala,
Jaipur - 302034 ...Petitioners
Versus.
1. The State of Maharashtra,
Through Station House Officer,
Santacruz Police Station, Linking Road,
Santa Cruz West, Mumbai
2. Dimple Barhat @ Dimple Achlawat
73, Narendra Apartments,
Near Rajesh Khanna Garden,
Gazdhar Bandh, Santacruz (W),
Mumbai - 400052 ...Respondents
Ms. Tasmiya Taleha, learned Advocate for the Petitioners.
Mr. Rahul Aarote, learned Advocate for Respondent.
Mr. Sukanta Karmakar, learned APP for the Respondent -
State.
Arjun 1
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CORAM : ASHWIN D. BHOBE, J.
Date : 23rd March, 2026
JUDGMENT :
1. Heard Ms. Tasmiya Taleha, learned Advocate for the
Petitioners, Mr. Sukanta Karmakar, learned APP for the Respondent
- State and Mr. Rahul Aarote, learned Advocate for the Respondent
No. 2.
2. By order dated 04.12.2025, this Court took the view that an
arguable case was made out to impel the Court to entertain this
Petition.
3. Though the Petitioners have raised several challenges
regarding the proceedings arising from Criminal Case No.
06/SW/2022 for offences punishable under Sections 498A, 406,
read with Section 34 of the Indian Penal Code, 1860, (hereafter
"IPC"), pending before the file of the Metropolitan Magistrate, 71 st
Court, Bandra, Mumbai, (hereafter "Magistrate"), Ms. Tasmiya
Taleha, Mr. Sukanta Karmakar, learned APP, and Mr. Rahul Aarote
have limited their arguments to contest the Order dated
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19.04.2024 passed by the Magistrate in Criminal Case No.
06/SW/2022 (hereafter "impugned order"), whereby the
Magistrate issued process against the Petitioners.
4. Rule. Rule made returnable forthwith and with the consent
of the parties, heard finally.
5. Material facts relevant for the adjudication of the present
Petition are that the marriage between the Petitioner's Son and
Respondent No. 2 (Complainant) was solemnized on 12.12.2016
in Jodhpur. In June 2021, matrimonial disharmony led the
Petitioner's son to file divorce proceedings against Respondent No.
2 in the Family Court, Jodhpur, which were subsequently
transferred to the Mumbai Family Court. Respondent No. 2,
alleging harassment, filed a complaint before the Senior Inspector
in Santacruz West, Mumbai. Based on the complaint filed by
Respondent No. 2, the Magistrate issued process on 19.04.2024
under Section 498A , 406 read with Section 34 of the IPC, in
Criminal Case No. 06/SW/2022.
6. Ms. Tasmiya Taleha, learned Advocate for the Petitioners,
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submits that the impugned order, in issuing the process, reveals a
lack of judicial consideration by the Magistrate. She submits that
the impugned order was issued mechanically without considering
the facts of the case or examining the documents. She argues that
the impugned order is illegal and therefore liable to be set aside,
which should result in the dismissal of the entire proceedings
bearing C.C. No. 06/SW/2022. In the alternative, she submits that
this Court, in its writ jurisdiction, should consider the case on its
merits to determine whether a case for issuance of process has
been established.
7. Mr. Sukanta Karmakar, learned APP for the Respondent -
State, supports the impugned Order and submits that no
interference is warranted.
8. Mr. Rahul Aarote, learned Advocate for Respondent No. 2,
submits that the impugned order shows that the Magistrate
applied his mind and limited the issuance of process to Sections
498A, 406 read with Section 34 of IPC. He submits that the
Magistrate, having not issued process under Sections 505 and 506
of IPC, demonstrates his considered decision. Without prejudice to
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the above contentions, he submits that if this Court finds the
impugned order requires interference, then the matter should be
remanded to the Magistrate for reconsideration. He argues that
when exercising jurisdiction under Article 226 of the Constitution
of India, this Court should not assume the role of the Magistrate in
deciding whether to issue process, this responsibility should
remain with the Magistrate at the initial stage. He relies on the
decision of this Court in the case of Krishnagopal
Raghunathprasad Maheshwari and Ors. v. Food Inspector And
Anr.1
9. Heard Arguments. Perused records.
10. The Hon'ble Supreme Court in the case of Mahmood Ul
Rehman v. Khazir Mohammad Tunda and Ors.2 in paragraph Nos.
8 to 20 has made the following observations: -
8.The question is: how does a Magistrate, while
taking cognizance of an offence on complaint,
indicate his satisfaction regarding the ground for
proceeding against the accused?
1 (2019) SCC OnLine Bom 1162
2 (2015) 12 SCC 420
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9. In Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi
Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 :
1998 SCC (Cri) 1400] , this Court has held that
exercise under Section 204 CrPC of summoning an
accused in a criminal case is a serious matter and that
the process of criminal law cannot be set into motion
in a mechanical manner. It was also held that the
order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the
case and the law governing the issue. To quote: (SCC
p. 760, para 28)
"28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that
he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home to
the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused."
10. In taking recourse to such a serious process, this
Court has consistently held that the Magistrate must
apply his mind on the allegations on commission of
the offence. In Darshan Singh Ram Kishan v. State of
Maharashtra [Darshan Singh Ram Kishan v. State of
Maharashtra, (1971) 2 SCC 654 : 1971 SCC (Cri)
628] , it was held that the process of taking
cognizance does not involve any formal action, but it
occurs as soon as the Magistrate applies his mind to
the allegations and thereafter takes judicial notice of
the offence. To quote: (SCC p. 656, para 8)
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"8. As provided by Section 190 of the Code of
Criminal Procedure, a Magistrate may take
cognizance of an offence either, (a) upon receiving a
complaint, or (b) upon a police report, or (c) upon
information received from a person other than a
police officer or even upon his own information or
suspicion that such an offence has been committed.
As has often been held, taking cognizance does not
involve any formal action or indeed action of any
kind but occurs as soon as a Magistrate applies his
mind to the suspected commission of an offence.
Cognizance, therefore, takes place at a point when a
Magistrate first takes judicial notice of an offence.
This is the position whether the Magistrate takes
cognizance of an offence on a complaint, or on a
police report, or upon information of a person other
than a police officer. Therefore, when a Magistrate
takes cognizance of an offence upon a police report,
prima facie he does so of the offence or offences
disclosed in such report."
11.In one of the early decisions, Emperor v.
Sourindr[Emperor v. Souri, ILR (1910) 37 Cal 412] ,
a Division Bench of the Calcutta High Court has taken
the same view: (ILR p. 417)
"... 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."
12. In Nagawwa v. Veeranna Shivalingappa Konjalgi
[Nagawwa v. Veeranna Shivalingappa Konjalgi,
(1976) 3 SCC 736 : 1976 SCC (Cri) 507] , this Court
took the view that in the process of taking cognizance
and issue of process to the accused, the Magistrate
has to form an opinion that a prima facie case is
made out against the accused. At that stage, the
Magistrate is also competent to consider whether
there are inherent improbabilities appearing on the
face of the complaint or in the evidence led by the
complainant. To quote: (SCC p. 741, para 5)
"5. ... It is true that in coming to a decision as to
whether a process should be issued the Magistrate
can take into consideration inherent improbabilities
appearing on the face of the complaint or in the
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evidence led by the complainant in support of the
allegations but there appears to be a very thin line of
demarcation between a probability of conviction of
the accused and establishment of a prima facie case
against him. The Magistrate has been given an
undoubted discretion in the matter and the discretion
has to be judicially exercised by him. Once the
Magistrate has exercised his discretion it is not for
the High Court, or even this Court, to substitute its
own discretion for that of the Magistrate or to
examine the case on merits with a view to find out
whether or not the allegations in the complaint, if
proved, would ultimately end in conviction of the
accused."
13. In Kishun Singh v. State of Bihar [Kishun
Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC
(Cri) 470] , this Court reiterated the position that
where, on application of mind, the allegations in the
complaint, according to the Magistrate, if proved,
would constitute an offence, cognizance is to be
taken of the offence so as to proceed further against
the accused. To quote: (SCC p. 23, para 7)
"7. ... Even though the expression 'take cognizance' is
not defined, it is well settled by a catena of decisions
of this Court that when the Magistrate takes notice of
the accusations and applies his mind to the
allegations made in the complaint or police report or
information and on being satisfied that the
allegations, if proved, would constitute an offence
decides to initiate judicial proceedings against the
alleged offender he is said to have taken cognizance
of the offence. It is essential to bear in mind the fact
that cognizance is in regard to the offence and not
the offender. Mere application of mind does not
amount to taking cognizance unless the Magistrate
does so for proceeding under Sections 200/204 of the
Code...."
14. In State of W.B. v. Mohd. Khalid [State of
W.B. v. Mohd. Khalid, (1995) 1 SCC 684 : 1995 SCC
(Cri) 266] , it has been held by this Court that while
exercising the power to take cognizance, a Magistrate
has to see whether there is any basis for initiating
judicial proceedings. At para 43, it has been held as
follows: (SCC p. 696)
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"43. ... Section 190 of the Code talks of cognizance of
offences by Magistrates. This expression has not been
defined in the Code. In its broad and literal sense, it
means taking notice of an offence. This would
include the intention of initiating judicial proceedings
against the offender in respect of that offence or
taking steps to see whether there is any basis for
initiating judicial proceedings or for other purposes.
The word 'cognizance' indicates the point when a
Magistrate or a Judge first takes judicial notice of an
offence. It is entirely a different thing from initiation
of proceedings; rather it is the condition precedent to
the initiation of proceedings by the Magistrate or the
Judge. Cognizance is taken of cases and not of
persons."
15. In Kanti Bhadra Shah v. State of W.B. [Kanti
Bhadra Shah v. State of W.B., (2000) 1 SCC 722 :
2000 SCC (Cri) 303] , this Court has taken the view
that it is quite unnecessary to write detailed orders at
the stage of issuing process. In U.P. Pollution Control
Board v. Mohan Meakins Ltd. [U.P. Pollution Control
Board v. Mohan Meakins Ltd., (2000) 3 SCC 745] ,
the position was further clarified that it was not
necessary to pass a speaking order at the stage of
taking cognizance. In Chief Controller of Imports and
Exports v. Roshanlal Agarwal [Chief Controller of
Imports and Exports v. Roshanlal Agarwal, (2003) 4
SCC 139 : 2003 SCC (Cri) 788] , this Court
considered the situation where the impugned order
passed by the Magistrate reads as follows: (SCC p.
145, para 8)
"8. ... 'Cognizance taken. Register the case. Issue
summons to the accused.'"
It was held that: (SCC p. 145, para 9)
"9. ... At the stage of issuing the process to the
accused, Magistrate is not required to record
reasons."
Kanti Bhadra Shah [Kanti Bhadra Shah v. State of
W.B., (2000) 1 SCC 722 : 2000 SCC (Cri) 303]
and U.P. Pollution Control Board [U.P. Pollution
Control Board v. Mohan Meakins Ltd., (2000) 3 SCC
745] were also referred to in the said decision.
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16. In Jagdish Ram v. State of Rajasthan [Jagdish
Ram v. State of Rajasthan, (2004) 4 SCC 432 : 2004
SCC (Cri) 1294] , the law was restated holding that
at the stage of issuing process to the accused, the
Magistrate is not required to record reasons.
However, he has to be satisfied that there is sufficient
ground for proceeding and such satisfaction is not
whether there is sufficient ground for conviction. To
quote: (SCC p. 436, para 10)
"10. ... The taking of cognizance of the offence is an
area exclusively within the domain of a Magistrate.
At this stage, the Magistrate has to be satisfied
whether there is sufficient ground for proceeding and
not whether there is sufficient ground for conviction.
Whether the evidence is adequate for supporting the
conviction, can be determined only at the trial and
not at the stage of inquiry. At the stage of issuing the
process to the accused, the Magistrate is not required
to record reasons."
17. In Chief Enforcement Officer v. Videocon
International Ltd. [Chief Enforcement
Officer v. Videocon International Ltd., (2008) 2 SCC
492 : (2008) 1 SCC (Cri) 471] , this Court held that
taking cognizance has no esoteric or mystic
significance in criminal law and it connotes that a
judicial notice is taken of an offence, after application
of mind. To quote: (SCC p. 499, paras 19-20)
"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 connotes '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. Cognizance is taken prior to commencement
of criminal proceedings. Taking of cognizance is thus
a sine qua non or condition precedent for holding a
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valid trial. Cognizance is taken of an offence and not
of an offender. Whether or not a Magistrate has taken
cognizance of an offence depends on the facts and
circumstances of each case and no rule of universal
application can be laid down as to when a Magistrate
can be said to have taken cognizance."
18. In U.P. Pollution Control Board v. Bhupendra
Kumar Modi [U.P. Pollution Control
Board v. Bhupendra Kumar Modi, (2009) 2 SCC
147 : (2009) 1 SCC (Cri) 679] , at para 23, the
position has been discussed as follows: (SCC p. 154)
"23. It is a settled legal position that at the stage of
issuing process, the Magistrate is mainly concerned
with the allegations made in the complaint or the
evidence led in support of the same and he is only to
be prima facie satisfied whether there are sufficient
grounds for proceeding against the accused."
19. In Bhushan Kumar v. State (NCT of
Delhi) [Bhushan Kumar v. State (NCT of Delhi),
(2012) 5 SCC 424 : (2012) 2 SCC (Cri) 872] , the
requirement of application of mind in the process of
taking cognizance was reiterated. It was further held
that summons is issued to notify an individual of his
legal obligation to appear before the Magistrate as a
response to the alleged violation of law. It was further
held that in the process thus issued, the Magistrate
need not explicitly state the reasons. Paras 11 to 13
contain the relevant discussion, which read as
follows: (SCC pp. 428-29)
"11. In Chief Enforcement Officer v. Videocon
International Ltd. [Chief Enforcement
Officer v. Videocon International Ltd., (2008) 2 SCC
492 : (2008) 1 SCC (Cri) 471] (SCC p. 499, para 19)
the expression 'cognizance' was explained by this
Court as 'it merely means "become aware of" and
when used with reference to a court or a Judge, it
connotes "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.' It is entirely a different
thing from initiation of proceedings; rather it is the
condition precedent to the initiation of proceedings
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by the Magistrate or the Judge. Cognizance is taken
of cases and not of persons. Under Section 190 of the
Code, it is the application of judicial mind to the
averments in the complaint that constitutes
cognizance. At this stage, the Magistrate has to be
satisfied whether there is sufficient ground for
proceeding and not whether there is sufficient
ground for conviction. Whether the evidence is
adequate for supporting the conviction can be
determined only at the trial and not at the stage of
enquiry. If there is sufficient ground for proceeding
then the Magistrate is empowered for issuance of
process under Section 204 of the Code.
12. A 'summons' is a process issued by a court calling
upon a person to appear before a Magistrate. It is
used for the purpose of notifying an individual of his
legal obligation to appear before the Magistrate as a
response to violation of law. In other words, the
summons will announce to the person to whom it is
directed that a legal proceeding has been started
against that person and the date and time on which
the person must appear in court. A person who is
summoned is legally bound to appear before the
court on the given date and time. Wilful disobedience
is liable to be punished under Section 174 IPC. It is a
ground for contempt of court.
13. 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, 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 prerequisite for deciding the validity of
the summons issued."
20.The extensive reference to the case law would
clearly show 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
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allegations in the complaint, when considered along
with the statements recorded or the inquiry
conducted thereon, would constitute violation of law
so as to call a person to appear before the criminal
court. It is not a mechanical process or matter of
course. As held by this Court in Pepsi Foods
Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998)
5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion
the process of criminal law against a person is a
serious matter.
11. The Hon'ble Supreme Court in the case of Pawan Kumar
Sharma v/s. State of Uttaranchal3, in paragraphs 3, has held as
under:-
"3. A distinction exists between an order taking cognizance and an
order issuing process. Before process is issued, the Court concerned
must apply its judicial mind. It may, not only apply its mind as to
whether on the basis of the allegations made in the complaint petition
and the statements made by the complainant and his witnesses, a prima
facie case has been made out for issuing processes but also must
consider as to whether a case has been made out in terms of proper
provisions of the Penal Statute for issuance of process for alleged
commission of the offences vis-a-vis, the allegations made.
12. The Hon'ble Supreme Court in the case of State of Karnataka
3. 2007 SCC OnLine SC 1599.
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v. Pastor P. Raju4, in paragraph 13, has held as under:-
"13. It is necessary to mention here that taking
cognizance of an offence is not the same thing as
issuance of process. Cognizance is taken at the initial
stage when the Magistrate applies his judicial mind to
the facts mentioned in a complaint or to a police
report or upon information received from any other
person that an offence has been committed. The
issuance of process is at a subsequent stage when after
considering the material placed before it the court
decides to proceed against the offenders against
whom a prima facie case is made out."
13. From the dictum of the aforementioned cases, at the stage of
issuing process, the Magistrate primarily considers the allegations
in the complaint or the supporting evidence. Though, there is no
need to issue detailed orders at this stage, it is only necessary to be
satisfied prima facie that there are sufficient grounds to proceed
against the accused.
14. The impugned order in the case at hand merely states that
the Magistrate perused the report submitted by the Police and the
verification statement of Respondent No. 2, which led to the
issuance of process. The impugned order does not reflect that the
4 (2006) 6 SCC 728
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Magistrate has applied his mind to the facts of the case and the
law governing the issue. There is no indication in the impugned
order that the Magistrate examined the nature of the allegations in
the complaint or the supporting evidence, oral or documentary.
The issuance of the process is done mechanically without the
application of the mind. Thus, the Magistrate failed to exercise
judicious discretion.
15. The contention of Mr. Rahul Aarote, learned Advocate for
Respondent No. 2, that the application of mind must be inferred
from the impugned order, since the Magistrate did not take
cognizance or issue process for all the offences mentioned in the
complaint and that the process was limited only to the offences
specified in the impugned order, cannot be accepted. This is
because the impugned order-issuing process under Sections 498A
and 406, read with Section 34 of the Indian Penal Code, 1860,
does not indicate that the Magistrate explicitly applied his mind to
the matter while ordering the issuance of process for those
offences.
16. The case of Krishnagopal Raghunathprasad Maheshwari
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(supra) involved the Magistrate's order issuing process being set
aside by the Sessions Court on the ground that it was issued
mechanically without application of mind, and the matter was
remanded to the Magistrate for reconsideration. The challenge to
the order passed by the Sessions Court, to the limited extent of
remanding the matter for reconsideration by the Accused therein,
was dismissed by this Court, which held that the Magistrate's
order-issuing process lacked application of mind, thereby justifying
intervention by the Sessions Court. The request, similar to the one
made by Ms Tasmiya Taleha, learned Advocate for the Petitioner,
for this Court to consider the merits of the matter in exercise of
writ jurisdiction, was raised in Krishnagopal Raghunathprasad
Maheshwari (supra), which request was rejected by this Court on
the grounds that it would cause injustice to the complainant.
17. Since the process of issuing the impugned order against the
Petitioners does not meet the legal requirements and suffers from
the vice of non-application of mind, the impugned order is illegal
and warrants interference.
18. Issuance of process is within the domain of a Magistrate.
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Since the impugned order is found to be illegal, the matter must be
reconsidered by the Magistrate. It is appropriate for the Magistrate
to carefully assess the case in accordance with the law. The scheme
of BNSS provides effective remedies to the aggrieved party against
the order-issuing process. Therefore, the request by Ms. Tasmiya
Taleha for this Court to examine the merits of the case in its writ
jurisdiction and/or to dismiss C.C. No. 06/SW/2022 is rejected.
19. In view of the above, the impugned order dated 19.04.2024,
passed by the Metropolitan Magistrate, 71 st Court, Bandra,
Mumbai in C.C. No. 06/SW/2022 is quashed and set aside. The
matter is remitted to the Metropolitan Magistrate, 71st Court,
Bandra, for fresh consideration and further action, if required to be
taken in accordance with law.
20. Rule is made absolute in the above terms. No orders as to
costs.
21. Criminal Writ Petition No. 1716 of 2025 disposed of.
(ASHWIN D. BHOBE, J.)
Digitally
signed by
ARJUN
ARJUN KRISHNA
KRISHNA RODGE
RODGE Date:
2026.03.23
21:58:37
+0530
