Delhi High Court
Shri Bharat Bhushan vs State & Anr. on 22 August, 2022
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: August 08, 2022
Decided on: August 22, 2022
+ CRL.M.C. 11/2019
SHRI BHARAT BHUSHAN ..... Petitioner
Through: Mr. Vikram Dua, Advocate.
versus
STATE & ANR. ..... Respondents
Through: Mr. Hitesh Vali, APP for the
State with ASI Ramesh
Chand, P.S. Tilak Nagar.
Mr. Shashank Khurana,
Advocate for R-2.
%
CORAM:
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present petition is filed under section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code") to
set aside the orders dated 16.07.2018 and 26.09.2018 passed by the
Court of Ms. Sonam Gupta, MM-02 (Mahila Court), West Tis Hazari
Courts, Delhi in FIR bearing no.950/14, under sections
354/354D/392/120B/34 IPC registered at P.S. Tilak Nagar. The
petitioner prayed as under:
a. Set aside the Orders dated 16.07.2018 &
26.09.2018, passed by Ms. Sonam Gupta, Ld. MM.,
West, Tis Hazari Courts, Delhi in FIR No.950/14,
U/s. 354/354D/392/120B/34 IPC, P.S. Tilak Nagar
titled as State V Bharat Bhushan Bharti.
b. Pass such other further order as this Hon'ble
Court deems fit in the interest of justice as per the
facts and circumstances of this case.
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
2. FIR bearing no. 950/14 dated, 26.08.2014 was got registered
under sections 354/354D/392/120B/34 IPC at P.S. Tilak Nagar on the
complaint made by the respondent no. 2 in pursuance of directions
given by the Court of Ms. Colette Rashmi Kujur, M.M. (Mahila
Court), West, Tis Hazari Courts vide order dated 04.08.2014 under
section 156(3) of the Code in complaint bearing CC no. 104/1/14 titled
as Geeta V Bharat Bhushan Bharti. The order dated 04.08.2014
reads as under:
Arguments have been heard on the application
u/s 156 (3) CrPC. As per the report of the I.O./ SHO,
P.S. Tilak Nagar no complaint was made by
Ms.Geeta on the date of the incident about sexual
harassment, therefore, no FIR has been registered.
However, the call is stated to be made by the
father is law from U.P. at the 100 number. Copy of
the Form I - Control Room received under RTI Act
is placed on record.
SHO, PS concerned is directed to register an
FIR in the present case and compliance report be file
in the court on 27.08.2014 at 02:00 PM.
3. The charge-sheet was filed after completion of the investigation.
In the charge-sheet the petitioner along with Vinod Kumar Vaid was
placed in column no. 12 as no sufficient incriminating material could
be collected during the course of investigation them.
4. A cross FIR bearing no.499/2014 under sections
332/341/379/356/34 IPC was also registered on the complaint made
by the petitioner against the husband of the respondent no. 2.
5. In FIR bearing no. 950/2014 after completion of investigation a
Final Report under section 173(2) of the Code. The Court of
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
Ms.Sonam Gupta, MM-02, (Mahila Court), West, Tis Hazari, Delhi
vide order dated 16.07.2018 ordered for issuance of bailable warrants
in the sum of Rs. 5,000/- against the petitioner as the petitioner was
not present before the court on that date and the case was adjourned
for 26.09.2018. The order dated 16.07.2018 reads as under:
None for the accused.
Bailable warrant in the sum of Rs.5000/- be
issued against accused to be executed through IO /
SHO concerned for the next date of hearing.
Put up for appearance of accused on
26.09.2018.
6. The court vide order dated 26.09.2018, after perusing the
charge-sheet along with annexed documents took the cognizance of
the offence committed and adjourned the case for arguments on charge
on 17.12.2018. The order dated 26.09.2018 reads as under:
I have perused the chargesheet a/w documents
annexed. I take cognizance of the offence committed.
Put up for scrutiny of docs./arguments on charge
on 17.12.18.
7. The petitioner being aggrieved by the orders dated 16.07. 2018
and 26.09.2018 filed the present petition and challenged these orders
on the grounds that the impugned orders were passed in haste and
without application of law. The trial Court has failed to appreciate the
factual position of the case and issued the process without taking
cognizance of the offence. The trial Court has failed to appreciate that
after investigation, the Investigating Officer has placed the petitioner
and Mr. Vinod Kumar Vaid in column number 12 of the charge-sheet
as there was no evidence in support of the allegations made by the
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
respondent no. 2. The impugned orders are liable to be set aside being
contrary to the provisions of law. It is prayed that the impugned orders
dated 16 .07.2018 and 26.09.2018 be set aside.
8. The counsel for the petitioner argued that the Trial Court should
not have issued the bailable warrants against the petitioner vide order
dated 16.07.2018 as at that time the cognizance of the alleged offence
was not taken. The counsel for the petitioner also challenged the order
dated 26.09.2018 on the ground that the Trial Court has taken the
cognizance without specifying the offence for which the cognizance
has been taken and as such the order dated 26.09.2018 was passed in a
very casual and cursory manner and is liable to be set aside. The
counsel for the petitioner referred the judgment dated 19.05.2022
passed by this Court in Crl. M.C. 4177/2019 titled as Sanjit Bakshi V
State of NCT of Delhi and Others. The counsel for the respondent
no. 2 argued that the present petition is liable to be dismissed.
9. The Additional Public Prosecutor for the respondent no. 1/State
stated that the concerned Court was within the power to issue the
bailable warrants against the petitioner before taking cognizance of the
offence on the basis of the charge sheet. The Additional Public
Prosecutor relied upon the judgments titled as State of U.P. V Poosu
and another (1976) 3 SCC1 and Mona Panwar V High Court of
Judicature of Allahabad (2011) 3 SCC 496 . The Supreme Court in
State of U.P. V Poosu and another (1976) 3 SCC1 observed that
whether in the circumstances of the case the attendance of the accused
respondent can be best secured by issuing a bailable warrant or non-
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
bailable warrant, is a matter which rests entirely in discretion of the
Court.
10. In the judgment titled as Mona Panwar V. High Court of
Judicature of Allahabad (2011) 3 SCC 496 the Supreme Court
observed that a Magistrate can under Section 190 of the Code before
taking cognizance ask for investigation by the police under Section
156(3) of taking cognizance. If after cognizance has been taken and
the Magistrate want any investigation, it will be under section 202 of
the Code.
11. A Magistrate is not empowered to summon or secure the
attendance of the accused before taking cognizance as per the section
190 of the Code. The chapter XVI of the Code deals with
commencement of proceedings before Magistrates. Section 204 of the
Code deals with the issuance of process Sub section (1) provides that
if in the opinion of a Magistrate taking cognizance of an offence, there
is sufficient ground for proceedings and the case appears to be a
warrant trial, he may issue a warrant or summon for causing the
appearance of the accused before the Magistrate. The combined
reading of the section 190 and 204 of the code reflects that the
magistrate is empowered to secure presence of the accused in warrant
case only after taking cognizance of an offence. The order dated
16.07.2018 is liable to be set aside as the Court was not competent to
issue bailable warrants against the petitioner before taking cognizance.
Accordingly order dated 16.07.2018 is set aside.
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
12. Section 190 of the code empowers a Magistrate to take
cognizance of an offence in certain circumstances. Sub-section (1)
reads as under:-
Cognizance of offences by Magistrates.-1) 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.
13. This Court in Sanjit Bakshi V State of NCT of Delhi passed in
Crl.M.C.4177/2019 dated 19.05.2022 observed that cognizance
implies application of judicial mind by the Magistrate to the facts as
stated in a complaint or a police report or upon information received
from any person that an offence has been committed. The Court before
taking cognizance needs to be satisfied about existence of prima facie
case on basis of material collected after conclusion of investigation
and the magistrate has to apply his mind to the facts stated in the
police report or complaint before taking cognizance for coming to the
conclusion that there is sufficient material to proceed with the case.
Taking of cognizance is a judicial function and judicial orders cannot
be passed in a mechanical or cryptic manner. At time of taking
cognizance a Magistrate is not required to consider the defence of the
proposed accused or to evaluate the merits of the material collected
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
during investigation. The order taking cognizance should only reflect
application of judicial mind.
14. In R.R. Chari V State of Uttar Pradesh, 951CriLJ 775 the
question before the Supreme Court was as to when cognizance of the
offence could be said to have been taken by the Magistrate under
Section 190 of the Code. It was observed as under:-
It is clear from the wording of the section that the initiation
of the proceedings against a person commences on the
cognizance of the offence by the Magistrate under one of the
three contingencies mentioned in the section. The first
contingency evidently is in respect of non-cognizable
offences as defined in the Criminal Procedure Code on the
complaint of an aggrieved person. The second is on a police
report, which evidently is the case of a cognizable offence
when the police have completed their investigation and come
to the Magistrate for the issue of a process. The third is
when the Magistrate himself takes notice of an offence and
issues the process. It is important to remember that in
respect of any cognizable offence, the police, at the initial
stage when they are investigating the matter, can arrest a
person without obtaining an order from the Magistrate.
Under Section 167(b) of the Criminal Procedure Code the
police have of course to put up the person so arrested before
a Magistrate within 24 hours and obtain an order of remand
to police custody for the purpose of further investigation, if
they so desire. But they have the power to arrest a person
for the purpose of investigation without approaching the
Magistrate first. Therefore in cases of cognizable offence
before proceedings are initiated and while the matter is
under investigation by the police the suspected person is
liable to be arrested by the police without an order by the
Magistrate.
15. The Supreme Court in Fakhruddin Ahmad V State of
Uttaranchal, (2008) 17 SCC 157 also held as under:-
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
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.
16. The Supreme Court also observed in S.K. Sinha, Chief
Enforcement Officer V Videocon International Ltd., (2008) 2 SCC
492 held as under:-
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.
'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 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
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
application can be laid down as to when a Magistrate can be
said to have taken cognizance.
17. The order dated 26.09.2018 is cryptic, non-speaking and is
passed without application of judicial mind. The order dated
26.09.2018 was passed in casual and cursory manner and even the
offences regarding which the cognizance was taken are not mentioned.
Accordingly the order dated 26.09.2018 is set aside. The Trial Court is
directed to re-consider the issue of taking the cognizance afresh and to
pass the speaking order on the basis of charge sheet.
18. The present petition alongwith pending applications, if any,
stands disposed of.
SUDHIR KUMAR JAIN
(JUDGE)
AUGUST 22, 2022
SK/SD
Signature Not Verified
Digitally Signed
BHATIA
Signing Date:25.08.2022
13:20:01
