(ii) However, it is made clear that the observations made
in the course of the order are only for the purpose of
consideration of the case of petitioners under Section 482 of
Cr.P.C., and the same shall not bind or influence the
proceedings pending before the trial Court or any other fora.
Consequently, I.A.No.2 of 2023 also stands disposed."
of the afore-quoted offences against the petitioners. This occasion,
from vice of application of mind. This Court accepts the plea, and
passes an order allowing the petition in part. The reasons so
section (1) of such offences as are within his competence to
inquire into or try.
... ... ....
204. Issue of process.--(1) If in the opinion of a
Magistrate taking cognizance of an offence there is sufficient
ground for proceeding, and the case appears to be--
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he
thinks fit, a summons, for causing the accused to be brought
or to appear at a certain time before such Magistrate or (if
he has no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against
the accused under sub-section (1) until a list of the
prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made
in writing, every summons or warrant issued under sub-
section (1) shall be accompanied by a copy of such
complaint.
(4) When by any law for the time being in force any
process-fees or other fees are payable, no process shall be
issued until the fees are paid and, if such fees are not paid
within a reasonable time, the Magistrate may dismiss the
complaint.
(5) Nothing in this section shall be deemed to affect
the provisions of Section 87."
Section 190(1)(a) deals with cognizance being taken on a
complaint, which would be a private complaint presented
before the concerned Court. Section 190(1)(b) deals with
cognizance taken on a police report, which would be a final
report/charge sheet filed before the concerned Court.
Therefore, cognizance can be taken only under Section 190
of the Cr.P.C. Section 204 deals with issue of process.
13. After the concerned Court takes cognizance under
Section 190 of the Cr.P.C., process is issued under Section
204 Cr.P.C. Sub-section (1) thereof mandates that if in the
opinion of the Magistrate taking cognizance of an offence,
there is sufficient ground for proceeding, it shall issue
process. Therefore, the words 'there is sufficient ground'
assume importance. The necessity of recording reasons for
existence of sufficient ground is thus imperative, and those
reasons are discernible only if they are recorded in writing.
It is only then such orders would reflect application of mind,
on the part of the Court, taking cognizance and issuing
summons. Therefore, the judgments relied on by the learned
senior counsel for the petitioners are all overwhelming, to
the judgments relied on by the learned senior counsel for the
2nd respondent, as all the judgments that are quoted
hereinabove, fallen from the arsenal of the learned senior
counsel for the petitioners, are all of 2024 and consider the
very issue as against the judgments, which are little earlier
cited by the learned senior counsel for the 2nd respondent
and the law as laid down by the Apex Court is that order of
taking cognizance and issuing summons, must bear
application of mind.
14. With the law being thus, I now deem it
appropriate to notice the order taking cognizance in the case
at hand. It reads as follows:
Issue summons to accused by 11-07-2024."
The Court observes 'perused the charge sheet and all the
documents'. On perusal of the same, the Court is satisfied
that prima facie offence has been committed by the accused
as alleged. Therefore, cognizance is taken under Section 190
(1)(b) and summons issued ostensibly under Section 204 of
the Cr.P.C. The order of taking cognizance and issuing of
process does not bear even a semblance of application of
mind. It runs completely counter to the necessity under
Section 190(1)(b) or Section 204 of the Cr.P.C. as elucidated
by the Apex Court in the aforesaid judgments.
15. The learned senior counsel for the
respondents submits that in 80% of cases, the Courts
would take cognizance in the same manner, while that
would not impress this Court to dismiss the petition
and permit perpetration of irregularity or illegality by
the concerned Court, just because it has become a
habit to take cognizance and issue summons in this
manner. Not for nothing is the elucidation by the Apex
Court in regard to existence of sufficient grounds and
application of judicial mind. The Court is expected to
record reasons for taking of cognizance. Though the
reasons need not be so elaborate like when it records
framing of charges or conviction, nonetheless, it must
bear application of mind to set further proceedings
into motion, as taking of cognizance or issuance of
process has some judicial sanctity. It cannot be a
frolicsome act on the part of the learned
Magistrate/concerned Court, which would take
cognizance and issue summons.
16. Therefore, it is made clear that the learned
Magistrates/concerned Court who take cognizance
and issue process, shall henceforth follow the law laid
down by the Apex Court as quoted hereinabove and
pass orders that would bear application of mind,
failing which, the learned Magistrates/concerned
Court are contributing docket explosion in this Court,
as every order of taking cognizance and issuance of
process is brought before this Court on the score that
it does not bear application of mind. Wherefore, the
impugned order of taking cognizance is necessarily to
be obliterated and the matter remitted back to the
hands of the learned Magistrate to redo the exercise
bearing in mind the observations made hereinabove.
17. For the aforesaid reasons, the following:
ORDER
(i) Criminal petition is allowed-in-part.
(ii) The order taking cognizance dated
04-04-2024 passed in C.C.No.2600 of 2024 by the
Principal Civil Judge and JMFC, Anekal stands
quashed.
(iii) The matter is remitted back to the hands of
the Principal Civil Judge and JMFC, Anekal to redo
the exercise of passing an order of taking
cognizance and issuing process, bearing in mind
the observations made in the course of the order.
(iv) The aforesaid exercise shall be concluded
within a period of four weeks' from the date of
receipt of a copy of this order.
(v) All other contentions except the one
considered in the course of the order shall remain
open.
Pending applications, if any, also stand disposed."
(Emphasis supplied)
3. In terms of the afore-quoted order, the matter was
remitted to the hands of the concerned Court to pass necessary
orders bearing in mind the observations made in the course of the
order. Pursuant to the order so passed by the Court, the concerned
Court now takes cognizance of the offences. The order of taking of
cognizance reads as follows:
"The defacto complainant/CW1 lodged complaint
before the SHO of Sarjapura PS alleging that 13 sites
as described in the complaint belongs to him. He
mortgaged the said 13 properties with SBICAP on 07-
10-2021. The accused No.1 was the witness of said
mortgage deed.
It is further alleged that accused No.3 & 4 are
sons of accused No.1. Accused No.5 is the brother of
accused No.1. Accused No.2, 6, 7 & 8 are employees of
accused No.1.
with criminal conspiracy and with an intention to cause
wrongful loss to the defacto complainant/CW1 forged
the signature of CW1/defacto complainant by creating
SPA as his SPA holder is accused No.2 herein and the
accused No.2 executed sale deeds in respect of said 13
sites in favour of accused No.3, 4, 5, 6, 7, 8 and to the
said sale deeds the accused No.1, 5, 6, 7 were
subscribed their signatures as witnesses.
After investigation, the investigating officer clearly
stated in the charge-sheet as "ಈ ೋ ಾ ೋಪ ಾ ಪ ಾಲಂ. ನಂ. 12ರ
ನಮೂದು ಾ ರುವ ಎ.1 ಆ ೋ . .ಆಂಜ ೇಯ ೆ ರವ!"ೆ ಮ#ದ ಾ $ಾಚೂ&' ( $ೇ) 1
ರ *ಾ+ 01 ರವರ ,ಾಗ ೆ. ಬಂ0ರುವ 45 12ೇಶನಗಳನು5 0 ಾಂಕ 07-10-2021 ರಂದು *ಾ+
01ರವರು ಎ).7.ಐ ಟ:( ಕಂಪ1"ೆ ಾ "ೇ; ಾ ಆ ೇಕ< ಸ> !?ಸ @ ಕAೇ!ಯ
!?ಸ @ ಾ ರುವ Bಾಗೂ ಾ "ೇ; !?ಸ @ ಪತ: ೆ. Dಾನು *ಾ+EಾF ಸ# ಾ ರುವ
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ಾ ೊ ದK 12ೇಶನ ಸಂZೆS 214, 229, 230, 313, 331, 332, 348, 349, 350, 351, 410,
418, 419 ನಂಬ!ನ ಒಟು 13 12ೇಶನಗಳನು5 *ಾ+ 01 ರವರು ಎ.3 ಅಜು&' ಆಂಜ ೇಯ ೆ ,
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.ಆಂಜ ೇಯ ೆ ಎ.5 ಆ ೊ Q:ೕ12ಾಸ ೆ , ಎ.6 ಆ ೋ ಸುಂದರಮೂI&, ಎ.7 ಆ ೋ
ಮು1 ಾಜು ರವರುಗbೇ *ಾ+EಾF ಸ# ಾ 12ೇಶನಗಳ ಅಸಲು ಾ ಕ ಾದ *ಾ+ 01
ರವ!"ೆ ವಂV( Wೕಸ ಾ ರುDಾJ ೆಂತ Bಾಗೂ *ಾ+ 01 ರವರ ಸ#ಯು ನಖ
ಸ#EಾFರುವR ಾF ಲಭSGರುವ *ಾde ಾರಗ[ಂದ ಎf.ಎ)
ಎf ಎ).ಎ<
ಎ) ಎ< ವರ0gಂದ Bಾಗೂ
ತ1Zೆgಂದ ಆ ೋ ತರ hೕ]ೆ ಆ ೋ ಗಳT ದೃಡ ಪ ರುDೆJ".
Further, the witnesses as described in the
charge-sheet are also deposed in support of
prosecution case in their statements recorded by the
investigating officer U/s.161 of Cr.P.C. Further, the
investigating officer procured the certified copies of
sale deeds executed by accused No.2 in favour of
accused No.3, 4, 5, 6, 7 & 8 by using alleged
forged/created SPA in respect of aforesaid 13 sites and
produced the same along with FSL report in support of
prosecution case.
In the circumstance, this court of the firm view
that at this stage there are sufficient grounds for
proceeding against the accused for the aforesaid
offences. Therefore, this court proceeds to pass the
following:
ORDER
Cognizance taken for the offence punishable
U/s.418, 420, 464, 120(b) R/W 34 of IPC.
Office shall register the criminal case against the
accused No.1 to 8 in Register No.III for the offence
punishable U/s.418, 420, 464, 120(b) R/w 34 of IPC
and issue summons to the accused No.1 to 8.
R/by 18-01-2025."
(Emphasis added)
4. The petitioners are again at the doors of the Court
singing the same Swan song that formed the fulcrum of the earlier
lis that the order of the learned Magistrate suffers from want of
application of mind.
5. The learned Senior Counsel Sri.C.V.Nagesh would
contend that the order of cognizance by the concerned Court does
not bear even a semblance of application of mind, as what the
concerned Court would do is copy and paste the summary of the
charge sheet, so filed and then, on an erroneous presumption,
takes cognizance of the offences. He would contend that if the order
of cognizance suffers from the vice of non-application of mind, the
only consequence would be obliteration of the said order including
the crime so registered as the cognizance is taken upon the
investigation report. Investigation report is filed upon a crime
registered.
6. He would in-effect seek the quashment of the order by
placing reliance upon two judgments of the Apex Court which are
rendered after the order passed by this Court, the second one in
line. He would seek to place reliance upon the judgment of the
Apex Court in the case of S.C. GARG vs. STATE OF UTTAR
PRADESH, 2025 SCC OnLine SC 791 and JM LABORATORIES
vs. STATE OF ANDHRA PRADESH, 2025 SCC OnLine SC 208.
7. Per contra, the learned Senior Counsel Sri.Sandesh J
Chouta representing the respondent-complainant vehemently
contend that the order of the learned Magistrate nowhere suffers
from non-application of mind. Petitioners-accused are repeatedly
approaching this Court on the same ground that is urged every
time. This Court while dismissing the petition at the stage of crime
had clearly observed with regard to the nature of offences. He
would contend that the offence of forgery is writ large in the case at
hand. The Forensic Science Laboratory report is clear that those
documents were not signed by the complainant; who has signed, is
a matter of trial. He would also seek to place reliance upon plethora
of judgments rendered by the Apex Court which are as follows:
(i) STATE OF GUJARAT vs. AFROZ MOHAMMED
HASANFATTA, 2019 SCC OnLine SC 132.
(ii) PRADEEP S. WODEYAR vs. STATE OF KARNATAKA,
2021 SCC OnLine SC 1140.
(iii) PRAMILA DEVI AND OTHERS vs. STATE OF
JHARKHAND AND ANOTHER, 2025 SCC OnLine SC 886.
8. I have given my anxious consideration to the
submissions made by the learned counsel for the parties and have
perused the material on record.
9. The only issue that is projected before this Court, now
lies in a narrow compass, as to whether the order of cognizance
quoted supra suffers from want of application of mind.
10. Before considering the said issue, it is necessary to
notice the judgments of the Apex Court which elucidated the
principle of application of mind or otherwise in an order of taking
cognizance based upon the police report and not on a complaint.
The earlier judgments need not be reiterated as it would only result
in the bulk of the present order. It would suffice if the later
judgments bear consideration. The learned Senior Counsel for the
petitioners has placed heavy reliance on two judgments noted
supra. In the two judgments, the Apex Court has held as follows:
(i) JM LABORATORIES vs. STATE OF ANDHRA
PRADESH, 2025 SCC OnLine SC 208 - para 8:
"8. In the judgment and order of even date in criminal
appeal arising out of SLP (Crl.) No. 2345 of 2024 titled "INOX
Air Products Limited Now Known as INOX Air Products Private
Limited v. The State of Andhra Pradesh", we have observed
thus:
"33. It could be seen from the aforesaid order that
except recording the submissions of the complainant, no
reasons are recorded for issuing the process against the
accused persons.
34. In this respect, it will be relevant to refer to the
following observations of this Court in the case of Pepsi
Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC
749 (supra):
"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."
35. This Court has clearly held that summoning of an
accused in a criminal case is a serious matter. It has been
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 applicable thereto. This Court held that the
Magistrate is required to examine the nature of allegations
made in the complaint and the evidence, both oral and
documentary in support thereof and as to whether that would
be sufficient for proceeding against the accused. It has been
held that the Magistrate is not a silent spectator at the time
of recording of preliminary evidence before summoning the
accused.
36. The said law would be consistently following by this
Court in a catena of judgments including in the cases of Sunil
Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC
609, Mehmood Ul Rehman v. Khazir Mohammad
Tunda (2015) 12 SCC 420 and Krishna Lal Chawla v. State of
Uttar Pradesh (2021) 5 SCC 435.
37. Recently, a Bench of this Court to which one of us
(Gavai, J.) was a Member, in the case of Lalankumar
Singh v. State of Maharashtra 2022 SCC OnLine SC
1383 (supra), has observed thus:
"38. The order of issuance of process is not an
empty formality. The Magistrate is required to apply
his mind as to whether sufficient ground for
proceeding exists in the case or not. The formation
of such an opinion is required to be stated in the
order itself. The order is liable to be set aside if no
reasons are given therein while coming to the
conclusion that there is a prima facie case against
the accused. No doubt, that the order need not
contain detailed reasons. A reference in this respect
could be made to the judgment of this Court in the
case of Sunil Bharti Mittal v. Central Bureau of
Investigation9, which reads thus:
"51. On the other hand, Section 204 of the
Code deals with the issue of process, if in the
opinion of the Magistrate taking cognizance of an
offence, there is sufficient ground for proceeding.
This section relates to commencement of a
criminal proceeding. If the Magistrate taking
cognizance of a case (it may be the Magistrate
receiving the complaint or to whom it has been
transferred under Section 192), upon a
consideration of the materials before him (i.e. the
complaint, examination of the complainant and
his witnesses, if present, or report of inquiry, if
any), thinks that there is a prima facie case for
proceeding in respect of an offence, he shall issue
process against the accused.
52. A wide discretion has been given as to
grant or refusal of process and it must be
judicially exercised. A person ought not to be
dragged into court merely because a complaint has
been filed. If a prima facie case has been made out,
the Magistrate ought to issue process and it cannot be
refused merely because he thinks that it is unlikely to
result in a conviction.
53. However, the words "sufficient ground for
proceeding" appearing in Section 204 are of immense
importance. It is these words which amply suggest that
an opinion is to be formed only after due application of
mind that there is sufficient basis for proceeding
against the said accused and formation of such an
opinion is to be stated in the order itself. The order is
liable to be set aside if no reason is given therein while
coming to the conclusion that there is prima facie case
against the accused, though the order need not contain
detailed reasons. A fortiori, the order would be bad in
law if the reason given turns out to be ex facie
incorrect."
39. A similar view has been taken by this Court in the
case of Ashoke Mal Bafna (supra).
40. In the present case, leaving aside there being no
reasons in support of the order of the issuance of process,
as a matter of fact, it is clear from the order of the learned
Single Judge of the High Court, that there was no such
order passed at all. The learned Single Judge of the High
Court, based on the record, has presumed that there was
an order of issuance of process. We find that such an
approach is unsustainable in law. The appeal therefore
deserves to be allowed."
(Emphasis supplied)
(ii) S.C. GARG vs. STATE OF UTTAR PRADESH, 2025 SCC
OnLine SC 791 - paras 17, 18 and 19:
"17. We shall now have a look at the subsequent
matters Devendra (supra) and Muskan Enterprises (Supra)
wherein it is held that principle of res judicata is not
applicable in criminal proceedings. In Devendra (supra) was
a case where after dismissal of first petition under
Section 482 Cr. P.C. seeking quashing of the FIR, the
appellants therein preferred another application under
Section 482 Cr. P.C., after the Magistrate took cognizance of
the matter, which was dismissed by the High Court. In this
Court, it was argued by the opposite party that the first
order of the High Court dismissing the petition under
Section 482 Cr. P.C. would operate as res judicata. Negating
the said argument, a two Judge Bench of this Court held in
para 25 as under:
"25. Mr. Das, furthermore, would contend that the order
of the High Court dated 17-10-2005 would operate as res
judicata. With respect, we cannot subscribe to the said view.
The principle of res judicata has no application in a criminal
proceeding. The principles of res judicata as adumbrated in
Section 11 of the Code of Civil Procedure or the general
principles thereof will have no application in a case of this
nature."
18. In Muskan Enterprises (supra), similar was the
position. The first petition under Section 482 Cr. P.C. was
dismissed as withdrawn without liberty obtained to apply
afresh, the High Court dismissed the second petition under
Section 482 Cr. P.C. as not maintainable. Referring
to Devendra (supra), a two Judge Bench of this Court of
which one of us was a member (Prashant Kumar Mishra, J.)
observed thus in para 17:
"17. That the principle of res judicata has no application
in a criminal proceeding was reiterated by this Court
in Devendra v. State of U.P."
19. Reading three earlier decisions vis-à-vis the two later
decisions parallelly, we do not think that considering the
context and the stage of the proceedings in which the
matters stood and agitated before this Court, there is any
diversion in the applicability of the principle of res
judicata. While three earlier decisions in Pritam
Singh (Supra), Bhagat Ram (supra) and Tarachand
Jain (supra) were decided basis acquittal in previous trial,
the subsequent decision in Devendra (supra) and Muskan
Enterprises (supra) have been decided at the stage of
quashing petition under Section 482 Cr. P.C., thus, in both
the matters, there was no final adjudication of merits. While
in Devendra (supra), the first petition was for quashing of
the FIR and the second petition was preferred after the
Magistrate took cognizance of the matter; in Muskan (supra),
the first petition was dismissed as withdrawn whereas the
second petition was held not maintainable due to earlier
withdrawal without any liberty. Thus, these two cases are
totally distinguishable.
In addition, it is important to bear
that Sambasivam (supra) was decided by Five Judges of the
Judicial Committee and Pritam Singh (supra) was decided by
a three Judge Bench, whereas all subsequent decisions have
been rendered by the two Judges Bench. Therefore, Pritam
Singh (supra) is binding insofar as the issue concerning the
applicability of principle of res judicata in a criminal
proceeding is concerned."
In JM LABORATORIES v. STATE OF ANDHRA PRADESH supra,
the Apex Court was considering a private complaint being
registered and was taking cognizance of a complaint. The issue
sprung from the violation of the Drugs and Cosmetics Act, 1940. In
S.C. GARG vs. STATE OF UTTAR PRADESH supra, the Apex
Court was considering whether the company should be made a
party in the criminal proceedings and whether the subsequent writ
petition would be maintainable or the second petition would be
maintainable, not the same cause of action. Both the judgments
would not in any way assist the learned Senior Counsel for the
petitioners. The issue in the lis is the Court taking cognizance on a
police report. On a police report, what the concerned Court has
done now, is not suffering from non-application of mind but has
abundant application of mind.
11. The order of taking of cognizance should undoubtedly
bear application of mind, but should not result in the concerned
Court undertaking a roving enquiry at the stage of taking of
cognizance. If the contention of the learned Senior Counsel
Sri.C.V.Nagesh is accepted, it would be virtually directing the
concerned Court to conduct a roving enquiry, of the merit of the
charges, so laid against the accused. The order nowhere suffers
from non-application of mind. It therefore becomes apposite to
notice the judgments relied by the learned Senior Counsel for the
respondent-Complainant. The Apex Court in STATE OF
GUJARAT vs. AFROZ MOHAMMED HASANFATTA, 2019 SCC
OnLine SC 132, has held as follows:
"14. The charge-sheet was filed in Criminal Case No.
47715 of 2014 on 18-8-2014 against the accused persons,
namely, Sunil Agrawal and Ratan Agrawal. In the first
charge-sheet, the respondent Afroz Mohammad Hasanfatta
(Afroz Hasanfatta) was referred to as a suspect. In the
second supplementary charge-sheet filed on 15-11-2014 in
Criminal Case No. 62851 of 2014, the respondent Afroz is
arraigned as Accused 1 and Amit alias Bilal Haroon Gilani as
Accused 2. In the second supplementary charge-sheet,
prosecution relies upon the statement of witnesses as well as
on certain bank transactions as to flow of money into the
account of the respondent Afroz Hasanfatta and his Company
Nile Trading Corporation. The order of taking cognizance of
the second supplementary charge-sheet and issuance of
summons to the respondent Afroz Hasanfatta reads as
under:
"I take in consideration charge-sheet/complaint for the
offence of Sections 420, 465, 467, 468 IPC, etc. Summons to
be issued against the accused."
16. It is well settled 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 the Magistrate is only to be
satisfied that there are sufficient grounds for
proceeding against the accused. It is fairly well settled
that when issuing summons, the Magistrate need not
explicitly state the reasons for his satisfaction that
there are sufficient grounds for proceeding against the
accused. Reliance was placed upon Bhushan
Kumar v. State (NCT of Delhi) [Bhushan
Kumar v. State (NCT of Delhi), (2012) 5 SCC 424 :
(2012) 2 SCC (Cri) 872] wherein it was held as under :
(SCC pp. 428-29, paras 11-13)
"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 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."
22. In summoning the accused, it is not necessary for
the Magistrate to examine the merits and demerits of
the case and whether the materials collected is
adequate for supporting the conviction. The court is
not required to evaluate the evidence and its merits.
The standard to be adopted for summoning the
accused under Section 204 CrPC is not the same at the
time of framing the charge. For issuance of summons
under Section 204 CrPC, the expression used is "there
is sufficient ground for proceeding..."; whereas for
framing the charges, the expression used in Sections
240 and 246 IPC is "there is ground for presuming
that the accused has committed an offence...". At the
stage of taking cognizance of the offence based upon a
police report and for issuance of summons under
Section 204 CrPC, detailed enquiry regarding the
merits and demerits of the case is not required. The
fact that after investigation of the case, the police has
filed charge-sheet along with the materials thereon
may be considered as sufficient ground for proceeding
for issuance of summons under Section 204 CrPC.
23. Insofar as taking cognizance based on the police report
is concerned, the Magistrate has the advantage of the
charge-sheet, statement of witnesses and other evidence
collected by the police during the investigation. Investigating
officer/SHO collects the necessary evidence during the
investigation conducted in compliance with the provisions of
the Criminal Procedure Code and in accordance with the
rules of investigation. Evidence and materials so collected
are sifted at the level of the investigating officer and
thereafter, charge-sheet was filed. In appropriate cases,
opinion of the Public Prosecutor is also obtained before filing
the charge-sheet. The court thus has the advantage of the
police report along with the materials placed before it by the
police. Under Section 190(1)(b) CrPC, where the Magistrate
has taken cognizance of an offence upon a police report and
the Magistrate is satisfied that there is sufficient ground for
proceeding, the Magistrate directs issuance of process. In
case of taking cognizance of an offence based upon the
police report, the Magistrate is not required to record
reasons for issuing the process. In cases instituted on a
police report, the Magistrate is only required to pass an order
issuing summons to the accused. Such an order of issuing
summons to the accused is based upon subject to
satisfaction of the Magistrate considering the police report
and other documents and satisfying himself that there is
sufficient ground for proceeding against the accused. In a
case based upon the police report, at the stage of issuing the
summons to the accused, the Magistrate is not required to
record any reason. In case, if the charge-sheet is barred by
law or where there is lack of jurisdiction or when the charge-
sheet is rejected or not taken on file, then the Magistrate is
required to record his reasons for rejection of the charge-
sheet and for not taking it on file."
(Emphasis supplied)
The Apex Court later in PRADEEP S. WODEYAR vs. STATE OF
KARNATAKA, 2021 SCC OnLine SC 1140, has held as follows:
"76. The counsel for the appellant has contended that
the order of the Special Judge taking cognizance has
not sufficiently demonstrated application of mind to
the material placed before him. To substantiate this
contention, the appellant relied on the decisions
in Pepsi Foods Ltd. v. Special Judicial Magistrate [Pepsi Foods
Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998
SCC (Cri) 1400] , Fakhruddin Ahmad v. State of
Uttaranchal [Fakhruddin Ahmad v. State of Uttaranchal,
(2008) 17 SCC 157 : (2010) 4 SCC (Cri) 478] , Mehmood Ul
Rehman v. Khazir Mohammad Tunda [Mehmood Ul
Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 :
(2016) 1 SCC (Cri) 124] , Sunil Bharti Mittal v. CBI [Sunil
Bharti Mittal v. CBI, (2015) 4 SCC 609 : (2015) 2 SCC (Cri)
687] and Ravindranatha Bajpe v. Mangalore Special
Economic Zone Ltd. [Ravindranatha Bajpe v. Mangalore
Special Economic Zone Ltd., (2022) 15 SCC 430 : 2021 SCC
OnLine SC 806] The respondent argued that this Court
has made a distinction on application of mind by the
Judge for the purpose of taking cognizance based on a
police report on the one hand and a private complaint
under Section 200CrPC on the other, and that the
requirement of a demonstrable application of mind in
the latter case is higher. For this purpose, the counsel
relied on this Court's decisions in Bhushan Kumar v. State
(NCT of Delhi) [Bhushan Kumar v. State (NCT of Delhi),
(2012) 5 SCC 424 : (2012) 2 SCC (Cri) 872] and State of
Gujarat v. Afroz Mohammed Hasanfatta [State of
Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539
: (2020) 3 SCC (Cri) 876] .
91. While distinguishing the decision in Pepsi Foods
Ltd. [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5
SCC 749 : 1998 SCC (Cri) 1400] on the ground that it
related to taking of cognizance in a complaint case, the Court
in Afroz Mohammed Hasanfatta case [State of
Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539
: (2020) 3 SCC (Cri) 876] held since in a case of
cognizance based on a police report, the Magistrate
has the advantage of perusing the materials, he is not
required to record reasons : (Afroz Mohammed
Hasanfatta case [State of Gujarat v. Afroz Mohammed
Hasanfatta, (2019) 20 SCC 539 : (2020) 3 SCC (Cri) 876] ,
SCC p. 552, para 23)
"23. Insofar as taking cognizance based on the police
report is concerned, the Magistrate has the advantage of the
charge-sheet, statement of witnesses and other evidence
collected by the police during the investigation. Investigating
officer/SHO collects the necessary evidence during the
investigation conducted in compliance with the provisions of
the Criminal Procedure Code and in accordance with the
rules of investigation. Evidence and materials so collected
are sifted at the level of the investigating officer and
thereafter, charge-sheet was filed. In appropriate cases,
opinion of the Public Prosecutor is also obtained before filing
the charge-sheet. The court thus has the advantage of the
police report along with the materials placed before it by the
police. Under Section 190(1)(b)CrPC, where the Magistrate
has taken cognizance of an offence upon a police report and
the Magistrate is satisfied that there is sufficient ground for
proceeding, the Magistrate directs issuance of process. In
case of taking cognizance of an offence based upon the
police report, the Magistrate is not required to record
reasons for issuing the process. In cases instituted on a
police report, the Magistrate is only required to pass an order
issuing summons to the accused. Such an order of issuing
summons to the accused is based upon satisfaction of the
Magistrate considering the police report and other documents
and satisfying himself that there is sufficient ground for
proceeding against the accused. In a case based upon the
police report, at the stage of issuing the summons to the
accused, the Magistrate is not required to record any reason.
In case, if the charge-sheet is barred by law or where there
is lack of jurisdiction or when the charge-sheet is rejected or
not taken on file, then the Magistrate is required to record
his reasons for rejection of the charge-sheet and for not
taking it on file."
(emphasis supplied)"
108. In view of the discussion above, we summarise our
findings below:
108.1. The Special Court does not have, in the absence
of a specific provision to that effect, the power to take
cognizance of an offence under the MMDR Act without the
case being committed to it by the Magistrate under Section
209CrPC. The order of the Special Judge dated 30-12-2015
taking cognizance is therefore irregular.
108.2. The objective of Section 465 is to prevent the
delay in the commencement and completion of trial. Section
465CrPC is applicable to interlocutory orders such as an
order taking cognizance and summons order as well.
Therefore, even if the order taking cognizance is irregular, it
would not vitiate the proceedings in view of Section
465CrPC.
108.3. The decision in Gangula Ashok [Gangula
Ashok v. State of A.P., (2000) 2 SCC 504 : 2000 SCC (Cri)
488] was distinguished in Rattiram [Rattiram v. State of
M.P., (2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481] based on
the stage of trial. This differentiation based on the stage of
trial must be read with reference to Section 465(2)CrPC.
Section 465(2) does not indicate that it only covers
challenges to pre-trial orders after the conclusion of the trial.
The cardinal principle that guides Section 465(2)CrPC is that
the challenge to an irregular order must be urged at the
earliest. While determining if there was a failure of justice,
the courts ought to address it with reference to the stage of
challenge, the seriousness of the offence and the apparent
intention to prolong proceedings, among others.
108.4. In the instant case, the cognizance order was
challenged by the appellant two years after cognizance was
taken. No reason was given to explain the inordinate delay.
Moreover, in view of the diminished role of the committal
court under Section 209 of the Code of 1973 as compared to
the role of the committal court under the erstwhile Code of
1898, the gradation of irregularity in a cognizance order
made in Sections 460 and 461 and the seriousness of the
offence, no failure of justice has been demonstrated.
108.5. It is a settled principle of law that cognizance is
taken of the offence and not the offender. However, the
cognizance order indicates that the Special Judge has
perused all the relevant material relating to the case before
cognizance was taken. The change in the form of the order
would not alter its effect. Therefore, no "failure of justice"
under Section 465CrPC is proved. This irregularity would
thus not vitiate the proceedings in view of Section 465CrPC.
108.6. The Special Court has the power to take
cognizance of offences under the MMDR Act and conduct a
joint trial with other offences if permissible under Section
220CrPC. There is no express provision in the MMDR Act
which indicates that Section 220CrPC does not apply to
proceedings under the MMDR Act.
108.7. Section 30-B of the MMDR Act does not impliedly
repeal Section 220CrPC. Both the provisions can be read
harmoniously and such an interpretation furthers justice and
prevents hardship since it prevents a multiplicity of
proceedings.
108.8. Since cognizance was taken by the Special Judge
based on a police report and not a private complaint, it is not
obligatory for the Special Judge to issue a fully reasoned
order if it otherwise appears that the Special Judge has
applied his mind to the material.
108.9. A combined reading of the Notifications dated 29-
5-2014 and 21-1-2014 indicate that the Sub-Inspector of
Lokayukta is an authorised person for the purpose of Section
22 of the MMDR Act. The FIR that was filed to overcome the
bar under Section 22 has been signed by the Sub-Inspector
of Lokayukta Police and the information was given by the
SIT. Therefore, the respondent has complied with Section
22CrPC.
108.10. The question of whether A-1 was in charge of
and responsible for the affairs of the company during the
commission of the alleged offence as required under the
proviso to Section 23(1) of the MMDR Act is a matter for
trial. There appears to be a prima facie case against A-1,
which is sufficient to arraign him as an accused at this
stage."
(Emphasis supplied)
The Apex Court holds the following judgments of STATE OF
GUJARAT vs. AFROZ MOHAMMED HASANFATTA, 2019 SCC
OnLine SC 132 supra that on a police report, if the order of
cognizance bears application of mind, that would suffice. The Apex
Court in its latest judgments in the case of PRAMILA DEVI AND
OTHERS vs. STATE OF JHARKHAND AND ANOTHER, 2025 SCC
OnLine SC 886, has held as follows:
"ANALYSIS, REASONING AND CONCLUSION:
13. We have considered the matter in its entirety. Two
basic issues arise for consideration.
14. Firstly, whether the Additional Judicial
Commissioner while taking cognizance has to record
detailed reasons for taking cognizance? Secondly,
whether the FIR itself was instituted with mala
fide intention and was liable to be quashed?
15. Coming to the first issue, we have no hesitation
to record that the approach of the High Court was
totally erroneous. Perusal of the Order taking cognizance
dated 13.06.2019 discloses that the Additional Judicial
Commissioner has stated that the 'case diary and case record'
have been perused, which disclosed a prima facie case made
out under Sections 498(A), 406 and 420 of the IPC and
Section 3 (1)(g) of the SC/ST Act against the accused
including appellants. Further, we find the approach of the
Additional Judicial Commissioner correct inasmuch as
while taking cognizance, it firstly applied its mind to
the materials before it to form an opinion as to whether
any offence has been committed and thereafter went
into the aspect of identifying the persons who
appeared to have committed the offence. Accordingly,
the process moves to the next stage; of issuance of
summons or warrant, as the case may be, against such
persons.
16. In the present case, we find that the Additional
Judicial Commissioner has taken cognizance while
recording a finding that - from a perusal of the case
diary and case record, a prima facie case was made out
against the accused, including the Appellants.
In Bhushan Kumar v. State (NCT of Delhi), (2012) 5
SCC 424, this Court held that an order of the Magistrate
taking cognizance cannot be faulted only because it
was not a reasoned order; relevant paragraphs being as
under:
'14. Time and again it has been stated by this Court
that the summoning order under Section 204 of the Code
requires no explicit reasons to be stated because it is
imperative that the Magistrate must have taken notice of
the accusations and applied his mind to the allegations
made in the police report and the materials filed
therewith.
15. In Kanti Bhadra Shah v. State of W.B. [(2000) 1
SCC 722 : 2000 SCC (Cri) 303] the following passage will
be apposite in this context : (SCC p. 726, para 12)
"12. If there is no legal requirement that the trial court
should write an order showing the reasons for framing a
charge, why should the already burdened trial courts be
further burdened with such an extra work. The time has
reached to adopt all possible measures to expedite the
court procedures and to chalk out measures to avert all
roadblocks causing avoidable delays. If a Magistrate is to
write detailed orders at different stages merely because
the counsel would address arguments at all stages, the
snail-paced progress of proceedings in trial courts would
further be slowed down. We are coming across
interlocutory orders of Magistrates and Sessions Judges
running into several pages. We can appreciate if such a
detailed order has been passed for culminating the
proceedings before them. But it is quite unnecessary to
write detailed orders at other stages, such as issuing
process, remanding the accused to custody, framing of
charges, passing over to next stages in the trial."
(emphasis supplied)
16. In Nagawwa v. Veeranna Shivalingappa
Konjalgi [(1976) 3 SCC 736 : 1976 SCC (Cri) 507] this
Court held that it is not the province of the Magistrate
to enter into a detailed discussion on the merits or
demerits of the case. It was further held that in
deciding whether a process should be issued, the
Magistrate can take into consideration improbabilities
appearing on the face of the complaint or in the
evidence led by the complainant in support of the
allegations. The Magistrate has been given an
undoubted discretion in the matter and the discretion
has to be judicially exercised by him. It was further held
that : (SCC p. 741, para 5)
"5. ... 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."
17. In Chief Controller of Imports & Exports v. Roshanlal
Agarwal [(2003) 4 SCC 139 : 2003 SCC (Cri) 788] this Court,
in para 9, held as under : (SCC pp. 145-46)
"9. In determining the question whether any process is
to be issued or not, what the Magistrate has to be
satisfied is 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. This question was considered
recently in U.P. Pollution Control Board v. Mohan Meakins
Ltd. [(2000) 3 SCC 745] and after noticing the law laid
down in Kanti Bhadra Shah v. State of W.B. [(2000) 1
SCC 722 : 2000 SCC (Cri) 303] it was held as
follows: (U.P. Pollution case [(2000) 3 SCC 745], SCC p.
749, para 6)
'6. The legislature has stressed the need to record
reasons in certain situations such as dismissal of a
complaint without issuing process. There is no such legal
requirement imposed on a Magistrate for passing detailed
order while issuing summons. The process issued to the
accused cannot be quashed merely on the ground that the
Magistrate had not passed a speaking order.'"
18. In U.P. Pollution Control Board v. Bhupendra Kumar
Modi [(2009) 2 SCC 147 : (2009) 1 SCC (Cri) 679] this Court,
in para 23, held as under : (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. This being the settled legal position, the order
passed by the Magistrate could not be faulted with only on
the ground that the summoning order was not a reasoned
order.'
(emphasis supplied)
17. The view in Bhushan Kumar (supra) was reiterated
in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015)
12 SCC 420 and State of Gujarat v. Afroz Mohammed
Hasanfatta, (2019) 20 SCC 539. This Court in Rakhi
Mishra v. State of Bihar, (2017) 16 SCC 772 restated the
settled proposition of law enunciated in Sonu
Gupta v. Deepak Gupta, (2015) 3 SCC 424, as under:
'4. We have heard the learned counsel appearing for
the parties. We are of the considered opinion that the
High Court erred in allowing the application filed by
Respondents 2, 4, 5, 6, 7, 8, 9 and 10 and quashing the
criminal proceedings against them. A perusal of the FIR
would clearly show that the appellant alleged cruelty
against Respondents 2, 4, 5, 6, 7, 8, 9 and 10. This Court
in Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak
Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] held
as follows : (SCC p. 429, para 8)
"8. ... At the stage of cognizance and summoning
the Magistrate is required to apply his judicial mind
only with a view to take cognizance of the offence ... to
find out whether a prima facie case has been made out
for summoning the accused persons. At this stage, the
learned Magistrate is not required to consider the
defence version or materials or arguments nor is he
required to evaluate the merits of the materials or
evidence of the complainant, because the Magistrate
must not undertake the exercise to find out at this
stage whether the materials would lead to conviction or
not."
5. The order passed by the trial court taking
cognizance against R-2 and R-4 to R-9 is in conformity
with the law laid down in the above judgment. It is settled
law that the power under Section 482 CrPC is exercised
by the High Court only in exceptional circumstances only
when a prima facie case is not made out against the
accused. The test applied by this Court for interference at
the initial stage of a prosecution is whether the
uncontroverted allegations prima facie establish a case.'
(emphasis supplied)
18. Coming to the second point which the Appellants
canvassed before this Court viz. the background of lodging of
the FIR to impress that the same is mala fide, an afterthought
and at best, a civil dispute being tried to be settled through
criminal proceedings by way of arm-twisting. On this point,
need for a detailed discussion is obviated in view of our
answer on the first point supra and the paragraphs infra.
19. Perusal of the entire gamut of the pleadings of the
Appellants does not disclose any categorical statement to the
effect that during investigation by the police, no evidence has
emerged to warrant taking of cognizance, much less against
the Appellants. The only averment which has been made is
that the Trial Court had not recorded the prima facie material
against the Appellants because it does not exist. This is too
simplistic an argument and does not shift the burden from the
Appellants of taking a categorical stand that no material
whatsoever for taking cognizance is available in the police
papers/case diary against the Appellants. Be it noted, the
State has argued that sufficient material warranting
cognizance has been unearthed during the course of
investigation.
20. Here, the Court would pause to delve on what is
the scope of the exercise of application of mind on the
police papers/case diary for deciding as to whether to
take cognizance or not - it has only to be seen whether
there is material forthcoming to indicate commission of
the offence(s) alleged. The concerned Court is not
empowered to go into the veracity of the material at
that time. That is why, the law provides for a trial
where it is open to both the parties i.e., the
prosecution as well as the defence to lead evidence(s)
either to prove the materials which have come against
the accused or to disprove such findings. This
Court vide Order dated 13.09.2024 directed the Appellants to
file a translated copy of the chargesheet, as the State filed
the chargesheet in Hindi along with an application seeking
exemption from filing official translation (I.A. No.
198073/2024). As this Court [Coram : Sudhanshu Dhulia and
Ahsanuddin Amanullah, JJ.] is well-conversant with Hindi, the
language in which the chargesheet is and which has been
brought on record, we have examined the same. However,
the Appellants failed to comply with the specific direction
issued on 13.09.2024. Be that as it may, we find that
chargesheet mentions that on the basis of investigation, site
inspection and statements of the complainant, the police has
found the allegations true against all the accused including
appellants.
21. For reasons aforesaid and on an overall
circumspection of the facts and circumstances of the
case and submissions of learned counsel for the
parties, we find that the Order taking cognizance dated
13.06.2019, being in accordance with law, was not
required to be interfered with by the High Court.
22. Though no cross-appeal against the Impugned
Judgment has been filed by Respondent No. 2, yet to render
complete justice as also set right the error committed by the
High Court, on the legal issue of requirement of recording
detailed grounds/reasons for taking cognizance, the
Impugned Judgment is set aside in toto."
(Emphasis supplied)
If the order of taking of cognizance, as quoted supra, is considered
on the bedrock of the principles elucidated by the Apex Court in the
cases of AFROZ, PRADEEP WODEYAR and PRAMILA DEVI
supra, unmistakable inference, is that the order impugned does not
suffer from the vice of non-application of mind, but has application
of mind in its abundance, to the stage before it.
Finding no merit in the petition, the petition stands rejected.
Sd/-
(M.NAGAPRASANNA)
JUDGE
cbc
CT:MJ
