Dismissed

Kaju and Anr. v. State of U.P. and Anr.

Allahabad HC27 Jan 2020A482/2071/2020

Case brief

AI extract

What is this about?

The high court refused to quash criminal proceedings initiated under Sections 308 and 504 IPC. Holding that disputed facts could not be adjudicated under Section 482 Cr.P.C. and a prima facie case existed, the court dismissed the application but stayed coercive action for 30 days if applicants surrendered.

What did the court decide?

Prayer for quashing criminal proceedings, cognizance order, and charge sheet refused. Coercive action stayed for 30 days if applicants surrender and apply for bail.

Kaju and Anr. Vs State of U.P. and Anr. — Criminal Trial and Appeal | Allahabad HC (2020)

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A.F.R.

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Court No. - 83

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Case :- APPLICATION U/S 482 No. - 2071 of 2020

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Applicant :- Kaju And Anr Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Brij Raj,Ramsagar Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Suresh Kumar Gupta,J.

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Heard learned counsel for the applicants and learned A.G.A. for the State.

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This application under Section 482, Cr.P.C. has been filed for quashing the entire criminal proceedings of complaint case No. 2018 of 2018 arising out of case crime No. 163 of 2017, under Sections 308, 504 IPC, police station- Kotwali Katra, district Mirzapur as well as charge sheet dated 17.12.2017 and cognizance order dated 6.4.2018, pending in the court of Chief Judicial Magistrate, District Mirzapur.

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The contention of the counsel for the applicants is that the applicants have been falsely implicated in this case and the learned trial court without disclosing the words that the prima facie no case is made out against the applicants, cognizance order is passed by the learned Magistrate without application of mind and on this basis the learned counsel for the applicant submitted that the congizance order is bad in the eye of law and is liable to quash.

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Learned counsel for the applicant also relied upon paragaraph Nos. 6 and 12 of the judgement passed by Hon'ble Allahabad High Court in the case of Akash Garg Vs. State of U.P. reported in [2011 (11) ADJ 849] .

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"6. It is well settled that the Magistrate is not bound by the conclusion of the Investigating Officer. He is competent under law to form his own independent opinion on the basis of the materials collected during the investigation. The Magistrate may or may not agree with the conclusion of the Investigating Officer. If the Investigating Officer submits charge sheet, in that eventuality the Magistrate may differ from the charge sheet and refuse to take cognizance by holding that no case is made out. In a case where the final report is submitted the Magistrate may on perusal of the materials placed in support of the final report opine that the

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conclusion of the Investigating Officer is not correct and the offence is made out. In that eventuality, the Magistrate may reject the final report and take cognizance of the offence.

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12. It is also well settled that at the stage of taking cognizance of an offence, the Magistrate is not required to examine thoroughly the merits and demerits of the case and to record a final verdict. At that stage he is not required to record even reasons, as expression of reasons in support of the cognizance may result in causing prejudice to the rights of the parties (complainant or accused) and may also in due course result in prejudicing the trial. However, the order of the Magistrate must reflect that he has applied his mind to the facts of the case. In other words at the stage of taking cognizance what is required from the Magistrate is to apply his mind to the facts of the case including the evidence collected during the investigation and to see whether or not there is sufficient ground (prima facie case) to proceed with the case. The law does not require the Magistrate to record reasons for taking cognizance of an offence."

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What is meant by 'taking cognizance' in regard to an offence by a competent Magistrate is not defined or described in the Code of Criminal Procedure, 1973 (Cr.P.C.) or any other act. However the term has acquired a definite connotation through well settled judicial pronouncements.

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The term 'taking cognizance' actually means 'become aware of', but in reference to a Court or a Judge, it means 'to take notice of judicially'. The term has no mystic significance in criminal law. In practice 'taking cognizance' means taking notice of an offence for initiation of proceedings under Section 190 Cr.P.C.

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'Cognizance' refers to the point when the court first takes judicial notice of an offence by not only applying its mind to the contents of the complaint/police report, but also proceeding further as provided further in Chapter XIV of the Cr.P.C.

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Taking cognizance includes either taking steps to see whether there is basis for initiating a judicial proceeding or initiating a judicial proceeding against an offender by the Magistrate.

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Ordinarily, a citizen can initiate criminal proceedings against an offence by two means. He may either lodge an FIR before the Police Officer (Station House Officer) if the offence is a cognizable one, or he may lodge complaint before a competent Judicial Magistrate irrespective of whether the offence is cognizable or non-cognizable. Any Magistrate of the first class and the duly empowered second class Magistrate may take cognizance of any offence for further proceedings.

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As per Section 190(1) an empowered Magistrate may take cognizance of any offence-

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a). Upon receiving a complaint of facts which constitute such an offence.

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b). Upon a police report of such facts.

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

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Thus the cognizance is taken 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 person regarding an offence.

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The issuance of process by the court occurs at a subsequent stage duly after considering the materials placed before it. It happens when the Magistrate decides to proceed against the offender whom a prima facie case is clearly made out. Taking cognizance of an offence is not equivalent to issuance of process: issuance of process takes place only after taking cognizance of the offence. When a Magistrate applies his mind for issue of process, he must be held to have taken cognizance of the offences the complaint put forth.

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The cognizance and summoning order passed by learned Magistrate dated 18.11.2019 is read as under:-

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आज वविविवेचक दद्वारद्वा अपरद्वाध ससं० 163/2017 कवे दद्वारद्वा अवभिययक्तगण कद्वाजज वि वविकद्वास पद्वाण्डवेय कवे वविरूद्ध धद्वारद्वा -308,504 भिद्वा.द.ससं. कवे अपरद्वाध मम आररोप पत्र प्रस्तयत वकयद्वा गयद्वा हहै। आररोप पत्र एविसं समस्त कवेस डद्वायररी कद्वा अविलरोकन वकयद्वा। अपरद्वाध कद्वा प्रससंजद्वान ललए जद्वानवे कवे ललए आधद्वार पयद्वार्याप्त हहै। अततः अपरद्वाध कद्वा प्रससंजद्वान ललयद्वा जद्वातद्वा हहै।

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दद्वाणण्डक विद्वाद पसंजरीककत हरो।

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वविविवेचक दद्वारद्वा अवभिययक्तगण करो आररोप पत्र कवे समय न्यद्वायद्वालय उपणस्स्थित हरोनवे हवेतय सजचनद्वा प्रवेलसत ककी स्थिरी , अवभिययक्तगण न्यद्वायद्वालय मम उपणस्स्थित नहहीं आयद्वा। अततः अवभिययक्तगण वदनद्वासंक 06-07-2018 कवे ललए दद्वारद्वा अजमद्वानतरीय अलधपत्र तलब हरो।

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At the stage of taking congnizance, Magistrate can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In this present case, learned trial court clearly express his opinion that he perused all the records and clearly indicated that the material placed before him are sufficient to proceed with the case.

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In the present case detail cognizance order as well as summoning order is passed by the learned Magistrate with judicial application of mind as the same reflects that the learned Magistrate has applied his mind to material available on record and materials are sufficient to proceed against the applicants. The cognizance order is not a proforma order, every aspect is touched by the learned Magistrate and applicants failed to adduce any evidence which caused prejudice to them so cognizance order is perfectly valid and there is no occasion to quash the same.

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So the case law relied by the learned counsel for the applicants, is not applicable in the present case.

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From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 . The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge according to the provisions prescribed in Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

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The prayer for quashing the entire proceedings of criminal case, cognizance order as well as charge sheet is refused .

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However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicant be considered and decided expeditiously in view of the settled law laid by Hon'ble Supreme

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Court. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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With the aforesaid directions, this application is finally disposed of .

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Order Date :- 27.1.2020

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Ankita

Kaju and Anr. v. State of U.P. and Anr.

Case brief

What is this about?

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Kaju and Anr. v. State of U.P. and Anr.

Case brief

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