Allowed

Sachin Jaiswal and Another v. State of U.P. and Another

Allahabad HC7 Apr 2023A482/5443/2023

Case brief

AI extract

What is this about?

The single-judge Bench set aside the cognizance order dated 02.09.2020 passed by the Chief Judicial Magistrate, Agra, for being passed on a printed proforma without application of mind and without recording reasons, in an application under Section 482 Cr.P.C.

What did the court decide?

Cognizance order dated 02.09.2020 set aside; fresh reasoned order to be passed by the Magistrate within two months.

Sachin Jaiswal and Another Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2023)

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Court No. - 73

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Case :- APPLICATION U/S 482 No. - 5443 of 2023

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Applicant :- Sachin Jaiswal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar Gautam Counsel for Opposite Party :- G.A.

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Hon'ble Shiv Shanker Prasad,J.

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

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Initially, the present application under Section 482 Cr.P.C. has been filed to quash the charge-sheet dated 28.02.2020, cognizance order dated 02.09.2020 as well as entire proceedings of Case No. 28442 of 2020 (State Vs. Mohd. Arif Kuraishi and others), arising out of Case Crime No. 293 of 2018, under Sections 420, 406, 323, 504, 506 I.P.C., Police Station Hari Parwat, District Agra, pending in the court of Chief Judicial Magistrate, Agra.

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Today, learned counsel for the applicants has confined his relief to set aside the cognizance order dated 02.09.2020. Learned counsel for the applicants submits that the cognizance order dated 02.09.2020 has been passed by learned Chief Judicial Magistrate, Agra without applying his judicial mind on a printed format and the same is vague, ambiguous and nullity. He next submits that the perusal of the cognizance order indicates that except for directing the office to summon the applicants, absolutely no reasons have been mentioned in support thereof. He further submits that it is settled law that every orders are to be judged on reasons recorded therein. He therefore, submits that cognizance order be set aside.

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Learned A.G.A. does not dispute the correctness of the submissions made by the learned counsel for the applicants and he has no objection if the cognizance order is set aside.

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I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application. It is an admitted position that the cognizance order dated 02.09.2020 has been passed without application of mind on a printed format. Such cognizance orders passed on a printed proforma has already been set aside by this Court while passing a detail order dated 11th November, 2020 in Application U/S. 482 No. 41617 of 2019 (Vishnu Kumar Gupta & Another Vs. State of

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U.P. & Another) .

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In the case of Lalankumar Singh & Ors. Vs. State of Maharashtra passed in Criminal Appeal No. 1757 of 2022 vide judgment dated 11th October, 2022 , in paragraph no.28 has held as follows:

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"28. 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 Vs. Central Bureau of Investigation, which reads thus:

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"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.

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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.

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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."

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Accordingly, for the reasons recorded in the case of Lallan Kumar Singh (Supra) as well as in the case of Vishnu Kumar Gupta (Supra) , cognizance order dated 02.09.2020 is set aside. The learned Chief Judicial Magistrate, Agra after perusing the entire records shall pass a fresh speaking and reasoned order, in accordance with law, preferably within two months from the date of production of a certified copy of this order.

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With the aforesaid directions/observations, this application stands allowed.

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Office is directed to sent a copy of this order to the learned Chief Judicial Magistrate, Agra within a week.

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Order Date :- 7.4.2023 Abhishek Singh

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Digitally signed by :- ABHISHEK SINGH High Court of Judicature at Allahabad

Sachin Jaiswal and Another v. State of U.P. and Another

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Sachin Jaiswal and Another v. State of U.P. and Another

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