Partly allowed

Hariom Singh v. State of U.P. and Another

Allahabad HC11 May 2022A482/29006/2021

Case brief

AI extract

What is this about?

This High Court petition applicant challenged the charge sheet and summoning order in a criminal case alleged to be passed mechanically on a printed proforma without judicial application of mind. The court held such mechanical orders illegal. The charge sheet and summoning order were quashed, matter remitted to Magistrate to apply judicial mind afresh.

What did the court decide?

Charge sheet dated 12.01.2020 and summoning order dated 18.08.2020 quashed; matter remitted to Judicial Magistrate to decide afresh within two months.

Hariom Singh Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 92

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Case :- APPLICATION U/S 482 No. - 29006 of 2021

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Applicant :- Hariom Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pankaj Dwivedi Counsel for Opposite Party :- G.A.

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Hon'ble Manish Kumar,J.

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Heard learned counsel for the applicant, learned AGA for the State and perused the record.

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The present petition has been filed to quash the impugned charge sheet dated 12.01.2020, cognizance/ summoning order dated 18.08.2020 passed by learned Judicial Magistrate, Fatehabad, District - Agra as well as entire proceeding of Case No.576 of 2020, arising out of Case Crime No.373 of 2018, under Section 147, 148, 149, 336, 353, 341, 342 IPC & Section 7 Criminal Law (Amendment) Act, Police Station - Pinhat, District - Agra, pending before the Civil Judge/ Judicial Magistrate, Fatehabad, District - Agra.

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Learned counsel for the applicant has submitted that the applicant is teacher in a coaching, namely, Bright Future Classes, sitated at Agra Road, Pinhat, District - Agra where the incident is alleged to be occurred. It is further submitted that the police had given the names of almost all the persons who are either residing or doing their business in the locality. Learned counsel for the applicant has submitted that the cognizance has been taken without applying its judicious mind and summoning order dated 18.08.2020 has been passed by the Judicial Magistrate, Fatehabad, District - Agra on a printed proforma. It is further submitted that before taking cognizance and issuing summons, the court has to apply its judicious mind and it cannot be passed in a mechanical and routine manner after filing of the charge-sheet, as it has been done in the present case, and hence, the summoning order is liable to be quashed. In support of submissions, learned counsel for the applicant placed reliance on the judgment of this Court passed in the Case of Smt. Rubina Khan Vs. State of U.P. and another (Application Under Section 482 No.7854 of 2021, decided on 10.08.2021 . Reliance has further been placed on the judgments of this Court passed in the cases of Ankit Vs. State of Uttar Pradesh reported in 2009 4 ADJ 778, Pankaj Jaiswal Vs. State of Uttar Pradesh and another (Application under Section 482 No. - 11334 of 2021 decided

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on 09.08.2021 , Ashu Rawat Vs. State of Uttar Pradesh and others ( Application under Section 482 No. 13883 of 2020) and Vishnu Kumar Gupta Vs. State of U.P. reported in 2020 0 Supreme (All)784.

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On the other hand, learned AGA has submitted that since the controversy has already been attained finality by the Hon'ble Apex Court as well as by this Court in the cases of Ankit (supra), Pankaj Jaiswal (supra), Rubina (supra), Ashu Rawat(supra) and Vishnu Kumar Gupta (supra), the present matter may be decided finally at this stage.

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After hearing the learned counsel for the parties and going through the record, the statutory provisions and as per the law settled, the position which emerges out is that a Court can take cognizance of an offence only when condition requisite for initiation of proceedings before it as set out in Chapter XIV of the Code are fulfilled. Otherwise, the Court does not obtain jurisdiction to try the offences under section 190 (1) of the Cr.P.C. provided that "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-

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(a) upon receiving a complaint of facts which constitute such offence, (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 offence has been committed.

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(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

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As per the law settled by Hon'ble Supreme Court and this Court in the cases mentioned herein below would clearly reveals 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 material collected by the Investigating Officer resulted in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the law on the subject and the orders of Magistrate does not suffers from nonapplication of judicial mind while taking cognizance of the offence.

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In the case of Basaruddin & others Vs. State of U.P. and others, 2011 (1) JIC 335 (All)(LB) , the Hon'ble Court was pleased to observe as under:-

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"From a perusal of the impugned order, it appears that the learned Magistrate on the complaint filed by the complainant has summoned the accused in a mechanical way filling the date in the typed proforma. Learned Magistrate while taking cognizance of the offence on complaint was expected to go through the allegations made in the complaint and to satisfy himself as to which offences were prima facies, being made out against the accused on basis of allegations made in the complaint. It appears that the learned Magistrate did not bother to go through the allegations made in the complaint and ascertain as to what offences were, prima facie, being made out against the accused on the basis of allegations made in the complaint. Apparently, the impugned order passed by the learned Magistrate suffers from non-application of mind while taking cognizance of the offence. The impugned order is not well reasoned order, therefore, the same is liable to be quashed and the petition deserves to be allowed and the matter may be remanded back to the learned Chief Judicial Magistrate, Lakhimpur Kheri with direction to him to go through the allegations made in the complaint and ascertain as to what offences against the accused were prima facie being made out against the accused on the basis of allegations made in the complaint and pass fresh order, thereafter, he will proceed according to law."

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In the case of Bhushan Kumar and Anr. v. State (NCT of Delhi) and Anr., AIR 2012 SC 1747 , the Hon'ble Apex Court was pleased to observe that 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 pre-requisite for deciding the validity of the summons issued.

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In the case of Sunil Bharti Mittal v. Central Bureau of Investigation, AIR 2015 SC 923 , the Hon,ble Apex Court was pleased to observe in paragraph no.47 of the judgment as under:

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"47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application

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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.."

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In the case of Darshan Singh Ram Kishan v. State of Maharashtra , (1971) 2 SCC 654 , the Hon'ble Court was pleased to observe 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. 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.

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In the case of Ankit Vs. State of U.P. And another passed in Application U/S 482 No.19647 of 2009 decided on 15.10.2009 , this Court was pleased to observe in paragraph No.8 of the judgment as under:-

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"8. In the beginning, the name of the court, case number, state vs. ....... under section ......... P.S. ......... District ......... case crime No. ........ /2009 also have been printed and blanks have been filled up by mentioning the case number, name of the accused, section, P.S. District etc. by some employee. Below afore cited printed matter, the following sentence has been mentioned in handwriting " अभभियय्ሹ अअंभकित किक भगिरफ्तताररी मता 0 उच्च न्यतायतायल दतारता Crl. Writ No. 19559/08 अअंभकित बनताम रताज्य मम पताररत आददेश भदनताअंकि 5.11.08 दतारता आररोप प्ቔ पता्቎ हरोनदे तकि स्थभगित थरी। "

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Below aforesaid sentence, the seal of the court containing name of Sri Talevar Singh, the then Judicial Magistrate-III, has been affixed and the learned magistrate has put his short signature (initial) over his name. The manner in which the impugned order has been prepared shows that the learned magistrate did not at all apply his judicial mind at the time of passing this order and after the blanks were filled up by some employee of the court, he has put his initial on the seal of the court. This method of passing judicial order is wholly illegal. If for the shake of argument, it is assumed that the blanks on the printed proforma were

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filled up in the handwriting of learned magistrate, even then the impugned order would be illegal and invalid, because order of taking cognizance of any other judicial order cannot be passed by filling up blanks on the printed proforma. Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind."

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In the case of Kavi Ahmad Vs. State of U.P. and another passed in Criminal Revision No. 3209 of 2010 , wherein order taking cognizance of offence by the Magistrate under Section 190(1)(b) on printed proforma without applying his judicial mind towards the material collected by the Investigating Officer has been held illegal. In the case of Abdul Rasheed and others Vs. State of U.P. and another 2010 (3) JIC 761 (All) . The relevant observations and findings recorded in the said case are quoted below:-

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"6. Whenever any police report or complaint is filed before the Magistrate, he has to apply his mind to the facts stated in the report or complaint before taking cognizance. If after applying his mind to the facts of the case, the Magistrate comes to the conclusion that there is sufficient material to proceed with the matter, he may take cognizance. In the present case, the summoning order has been passed by affixing a ready made seal of the summoning order on a plain paper and the learned Chief Judicial Magistrate had merely entered the next date fixed in the case in the blank portion of the ready made order. Apparently the learned Magistrate had not applied his mind to the facts of the case before passing the order dated 20.12.2018, therefore, the impugned order cannot be upheld.

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7. Judicial orders cannot be allowed to be passed in a mechanical manner either by filling in blank on a printed proforma or by affixing a ready made seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot be allowed to perpetuate. This reflects not only lack of application of mind to the facts of the case but is also against the settled judicial norms. Therefore, this practice must be stopped forthwith."

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The relevant observations and findings recorded in the case of Vishnu Kumar Gupta (supra), which are quoted hereunder:-

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"10. At this juncture, it is fruitful to have a look so far as the law pertaining to summoning of the accused persons, by taking cognizance on a police report filed under section 173 of the Cr.P.C., is concerned and the perusal of the case law mentioned herein below would clearly reveal 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 material collected by the Investigating Officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the law on the subject.

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18. This type of order has already been held unsustainable by this Court in the case of Ankit (supra) relying on in a number of decisions of the Apex Court. The relevant portion of the said decision, is extracted below:

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"Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4^) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including

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the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind."(Emphasis supplied)"

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In light of the discussion made hereinabove and law settled, it is clear that the summoning order dated 18.08.2020 passed by the Judicial Magistrate, Fatehabad, District - Agra is without application of judicious mind on a printed proforma in mechanical manner and the cognizance and the same cannot be legally sustained as the Magistrate failed to exercise the jurisdiction vested in him.

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The impugned charge sheet dated 12.01.2020 and the summoning order dated 18.08.2020 passed by the Judicial Magistrate, Fatehabad, District - Agra in Case No.576 of 2020, arising out of Case Crime No.373 of 2018, under Section 147, 148, 149, 336, 353, 341, 342 IPC & Section 7 Criminal Law (Amendment) Act, Police Station - Pinhat, District - Agra, pending before the Civil Judge/ Judicial Magistrate, Fatehabad, District - Agra is hereby, quashed. The matter is remitted back to the Judicial Magistrate, Fatehabad, District - Agra with a direction to decide the matter afresh and pass appropriate orders in accordance with law keeping in view the observations made by this Court as well as the direction contained in the judgments referred within a period of two months from the date of production of a certified/computer generated copy of this order.

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Accordingly, the application/petition is partly allowed .

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Order Date :- 11.5.2022 S. Kumar

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Digitally signed by SANTOSH KUMAR Date: 2022.05.13 09:00:15 IST Reason: Location: High Court of Judicature at Allahabad

Hariom Singh v. State of U.P. and Another

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What is this about?

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Hariom Singh v. State of U.P. and Another

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