Sabuddin @ Shahabuddin Vs State of U.P. and Another

Neutral Citation No. - 2023:AHC:170009

Court No. - 4

Case :- APPLICATION U/S 482 No. - 30839 of 2023

Applicant :- Sabuddin @ Shahabuddin Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rakesh Kumar Rathore,Sanjeev Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Prakash Padia,J.

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The applicant has preferred present application under Section 482 Cr.P.C. with the prayer to quash the impugned Charge-sheet dated 21.06.2022, Cognizance as well as Summoning Order dated 24.03.2023, along with entire criminal proceeding of Criminal Case No. 418 of 2023 (State vs. Sabuddin @ Shahabuddin) arising out of Case Crime No. 432 of 2021, under Section 406, 420 I.P.C., P.S.- Kishni, District- Mainpuri.

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The following order was passed on 24.03.2023 by the court below :-

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" आजयहआररपपतमम०अ०सस० -432/2021 थथनथककशननककपकरणममअकभ०सथबमदननउररशथहबमदननकक कवरदधथरथ 406, 420 आई०पन०सन०पसतमतककयथगयथ।अवलरकनककयथ।पससजथनललयकजथनककथआधथर पयथरपहह।पससजथनललयथजथतथहह।

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आदकश

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दजररलजसटरहरअकभ०जररयकसममनकदनथसक 03.05.2023 करकनयतकरतलबहर। " 3. From perusal of the same, Court is of the opinion that the said order was passed without assigning any reason and without application of mind.

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This fact is also admitted by the learned A.G.A., appearing on behalf of staterespondents.

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Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The Magistrate is not a silent spectator before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and find out the truthfulness of the allegations or otherwise examine whether any offence is prima facie committed

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by the accused or not. Insofar as the present case is concerned, it is clear from perusal of the order that not only the order is a non-speaking order but the same has also been passed without application of judicial mind.

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In taking recourse to such a serious process, the Hon'ble Apex Court has consistently held that the Magistrate must apply his mind on the allegations of commission of the offence. In the case of Darshan Singh Ram Kishan vs. State of Maharashtra reported in (1971) 2 SCC 654, it was held 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. Paragraph-8 of the aforesaid judgment is reads as follows:-

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" 8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. 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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Similar view was again taken by the Hon'ble Apex Court in the case of Nagawwa vs. Veeranna Shivalingappa Konjalgi reported in (1976) 3 SCC 736 . In the aforesaid case it was held by the Hon'ble Apex Court that in the process of taking cognizance and issue of process to the accused, the Magistrate has to form an opinion that a prima facie case is made out against the accused. It was further held that the Magistrate is also competent to consider whether there are inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant. Paragraph-5 of the aforesaid judgment reproduced below:-

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" 5. … It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even (1910) I.L.R. Vol.XXXVII, Cal. 412 (1976) 3 SCC 736 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."

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The same view was again taken by the Hon'ble Apex Court in the case of Kishun Singh vs. State of Bihar reported in (1993) 2 SCC 16. Paragraph-7 of the aforesaid judgment reads as follows:-

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" 7. ...Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Sections 200/204 of the Code. .."

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In the case of West Bengal vs. Mohd. Khalid reported in (1995) 1 SCC 684 , it was held by the Hon'ble Apex Court that while exercising the power to take cognizance, a Magistrate has to see whether there is any basis for initiating judicial proceedings. Paragraph-43 of the aforesaid judgment is reads as follows:-

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" 43. … Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or

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taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. 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."

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The same view was again taken by the Hon'ble Apex Court in the case of Pepsi Foods Ltd. vs. Special Judicial Magistrate reported in (1998) 5 SCC 749 . Paragraph-28 of the aforesaid judgment reads as follows:-

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" 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. 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."

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In the case of Mehmood Ul Rehman vs. Khazir Mohammad Tunda and others reported in (2015) 12 SCC 420 , it was held by the Hon'ble Apex that while passing an order of summoning of the accused, the Magistrate should apply his judicial mind. Paragraph-23 of the aforesaid judgment is reads as follows:-

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" 23. Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders

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are required at the stage of Section 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 of CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. Question is not about veracity of the allegations; but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate."

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On a bare perusal of the order impugned, the Court is of the firm opinion that order is cryptic in nature. It reveals from perusal of the same that the order impugned has been passed by which an accused has been summoned is a nonspeaking order.

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In this view of the matter, the Court is of the opinion that summoning order dated 24.03.2023 passed by the Civil Judge (Senior Division)/FTC, Mainpuri is liable to be set aside and is hereby set aside. It is made clear that the court below is free to pass a fresh order but the same should be passed strictly in accordance with law.

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With the aforesaid observations, the application is partly allowed.

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Order Date :- 23.8.2023 Swati

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Digitally signed by :- SWATI PATHAK High Court of Judicature at Allahabad

Sabuddin @ Shahabuddin v. State of U.P. and Another

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