Delhi High Court
Shaham Azad vs The State Nct Of Delhi & Anr. on 10 October, 2022
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: October 10, 2022
+ CRL.M.C. 5118/2022, CRL.M.As. 20441/2022 & 20440/2022 (Stay)
SHAHAM AZAD ..... Petitioner
Through: Mr. Niraj Kumar Mishra, Advocate.
versus
THE STATE NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Hitesh Vali, APP for the State
with Ms. Akanksha Sharma,
Advocate alongwith SI Mohit Kumar,
P.S. Jamia Nagar.
CORAM:
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
J U D G M E N T (oral)
1. The present petition is filed under section 482 Cr.P.C for setting aside
the order dated 01.10.2022 passed by the Court of Shri Anuj Agrawal, ASJ,
District South East, Saket Court, New Delhi in criminal revision petition
bearing no. 403/2022 titled as Shaham Azad V State & Another and the
orders dated 24.03.2022, 13.04.2022 passed by the Successor Court of Shri
Rajat Goyal, Metropolitan Magistrate-08, South East, Saket Courts and
subsequent orders dated 01.07.2022, 03.08.2022 passed by the Successor
Court of Shri Snehil Sharma, Metropolitan Magistrate-08, District, South
East, Saket Courts, New Delhi, in criminal case bearing no. 2947/2022
titled as State V Shaham Azad arising out of FIR bearing no. 976/2015
registered under sections 323/451/506/34 IPC at P.S. Jamia Nagar.
2. Issue notice to respondent no. 1.
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:13.10.2022
11:05:39
3. Mr. Hitesh Vali, Additional Public Prosecutor assisted by
Investigating Officer, SI Mohit Kumar appearing on behalf of the
respondent no.1/State accepts notice.
4. The perusal of the record reflects that the FIR bearing no. 976/2015
was got registered under sections 323/506/451/34 IPC at P.S. Jamia Nagar
on the basis of the complaint made by the respondent no. 2 pertaining to the
incident happened on 05.07.2015.
5. After completion of investigation, the chargesheet was filed for the
offences punishable under sections 323/506/451/34 IPC and the trial of
which is stated to be pending in the Court of Mr. Snehil Sharma, MM-08,
South East, Saket Courts. The concerned Trial Court after filing of the
chargesheet vide order dated 24.03.2022 took the cognizance and ordered
for summoning of the petitioner for 13.04.2022. The order dated 24.03.2022
is reproduced as under:
Heard. File perused.
Based on the contents of chargesheet and documents
filed along with it, commission of certain offences is reflected
against the accused. I hereby take cognizance of the offences
alleged against the accused.
Accused is stated to be on anticipatory bail.
Issue summon against the accused and notice to his
surety through IO/ SHO for 13.04.2022.
6. The concerned Trial Court vide order dated 13.04.2022 after
observing that the petitioner is deliberately avoiding service ordered for
issuance of NBW against the petitioner with the notice to surety and finally
vide order dated 03.08.2022 due to non-execution of NBW issued against
the petitioner, ordered for issuance of process of section 82 Cr.P.C. The
petitioner being aggrieved by the orders dated 24.03.2022, 13.04.2022,
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:13.10.2022
11:05:39
01.07.2022 and 03.08.2022 filed a criminal revision petition bearing no.
403/2022 titled as Shaham Azad V State & Another which was dismissed
by the Court of Shri Anuj Agrawal, ASJ, District South East, Saket Court,
New Delhi vide judgment dated 01.10.2022. The relevant portion of the
order dated 01.10.2022 passed by the Revisional Court is reproduced
hereunder:
15. In my considered view, the said orders have been
passed by Ld Trial Court in order to secure presence of
revisionist in the pending criminal case. It appears that instead
of submitting himself to the jurisdiction of Ld. Trial Court, the
revisionist is trying to subvert the course of justice by filing the
present revision petition. I may hasten to add here that the
revisionist is not absolutely remediless. If the revisionist feels
that he has a good case on merit, nothing deters him from
appearing before concerned Court thereby submitting himself
to its jurisdiction and seek appropriate remedy as per law
including bail. Needless to say, in such a scenario, Ld Trial
Court shall be well guided by the principles of law as laid
down by Hon'ble Delhi High Court 'Court on its own motion Vs
CBI, 109 (2003) DLT 494'.
7. The counsel appearing on behalf of the petitioner argued that the
order dated 24.03.2022 passed by the Court of Shri Rajat Goyal, MM-08
South East, Saket Courts, New Delhi, was passed in a cursory and casual
manner and without due application of the judicial mind. He further argued
that the offences for which the cognizance alleged to have been taken was
not mentioned in the order dated 24.03.2022. He in support of arguments
cited Sanjit Bakshi V State of NCT of Delhi & Another in CRL. M.C.
4177/2019 decided on 19.05.2022 and Shri Bharat Bhushan V State and
Another in CRL.MC.11/2019 decided on 22.08.2022 by this Court.
8. Section 190 empowers a Magistrate to take cognizance of an offence
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:13.10.2022
11:05:39
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.
9. 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. It is the stage
when a Magistrate applies his mind to the suspected commission of an
offence. The cognizance of an offence is stated to be taken once the
Magistrate applies his mind to the offence alleged and decides to initiate
proceeding against the proposed accused. The Court before taking
cognizance needs to be satisfied about existence of prima facie case on basis
of material collected after conclusion of investigation. 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. It is
not only against the settled judicial norms but also reflects lack of
application of judicial mind to the facts of the case. It is equally important to
note that 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
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:13.10.2022
11:05:39
material collected during investigation. It is not necessary to pass a detail
order giving detailed reasons while taking cognizance. The order taking
cognizance should only reflect application of judicial mind.
10. 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.
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:13.10.2022
11:05:39
11. The Supreme Court in Fakhruddin Ahmad V State of Uttaranchal,
(2008) 17 SCC 157 also held as under:-
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.
12. 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 application can be laid down as to when a Magistrate
can be said to have taken cognizance.
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:13.10.2022
11:05:39
13. This Court in cases titled as Sanjit Bakshi V State of NCT of Delhi
& Another in CRL. M.C. 4177/2019 decided on 19.05.2022 and Shri
Bharat Bhushan V State and Another in CRL.MC.11/2019 decided on
22.08.2022 by this Court also directed the concerned Trial Court to pass
speaking order regarding the issue of cognizance on the basis of
chargesheet.
14. The order dated 24.03.2022 was passed without application of judicial
mind and is appearing to be the non-speaking order. The concerned Trial
Court has not mentioned the offences regarding which the cognizance was
taken. Accordingly, the order dated 24.03.2022 is set aside as a consequence
of which the subsequent orders passed by the said Trial Court dated
13.04.2022, 01.07.2022, 03.08.2022 and the order dated 01.10.2022 passed
by Shri Anuj Agrawal, ASJ-05, District South East, Saket Courts, New
Delhi are set aside. The Trial Court of MM-08 South East, is directed to
reconsider the issue of taking cognizance afresh and thereafter to pass the
speaking order on the basis of the chargesheet regarding cognizance.
15. The copy of this order be sent to the concerned trial Court for
information and compliance.
16. The present petition alongwith pending applications, if any, stands
disposed of.
(SUDHIR KUMAR JAIN)
JUDGE
OCTOBER 10, 2022/sk/m
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:13.10.2022
11:05:39
