Raju Gautam and 3 Others Vs State of U.P. and Anothaer

Neutral Citation No. - 2025:AHC:41967

Court No. - 75

Case :- APPLICATION U/S 482 No. - 41866 of 2024

Applicant :- Raju Gautam And 3 Others Opposite Party :- State Of U.P. And Anothaer Counsel for Applicant :- Vinay Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Arun Kumar Singh Deshwal,J.

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Heard Shri Vinay Kumar Singh, learned counsel for the applicant and Shri Rajeev Kumar Singh, learned A.G.A. for the State.

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The instant application has been filed by applicants to quash the entire proceeding of Criminal Case No. 39885 of 2023, Case Crime No. 449/2022, under Sections 498-A, 323, 504, 506 IPC and 3/4 D.P. Act, P.S.- Gorakhnath, District- Gorakhpur and charge sheet dated 16.04.2023 and cognizance order dated 02.08.2023.

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Applicant no. 1 is the husband of opposite party no. 2, there is matrimonial discord between them, an FIR was lodged by opposite party no. 2 against the applicant. After investigation, police has submitted charge sheet therein and cognizance was taken on 02.08.2023, which is under challenged in the present case.

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Learned counsel for the applicant submitted that bare perusal of cognizance order, which has been annexed at Page-70 of the affidavit. There is non application of mind as there in filling up the printed proforma by concerned Magistrate and signed the same. This in the teeth of the direction of this Court in the case of Amit Kumar Dwivedi Vs. State of U.P. in Application U/S 482 No. 35443/2023 decided on 05.10.2023 as well as in the judgment of Surendra Kumar Vs. State of U.P. and another 2021 (7) ADJ 261.

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Learned A.G.A. vehemently opposed the prayer but could not

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dispute the aforesaid legal position.

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After hearing learned counsel for the parties and perusal of record, it appears that impugned cognizance order dated 02.08.2023, which has been annexed at Page-70 shows that it was printed proforma which was filled up then signed by A.C.J.M. 1st Gorakhpur, there is no application of mind. The Apex Court in the case of Lallan Kumar Singh Vs. State of Maharashtra 2022 SCC Online 1383 , observed that cognizance must reflect the application of mind on the part of the concerned court. Paragraph no. 38 of the Lallan Kumar Singh (supra) is quoted here-in-under:-

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"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:

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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

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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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This issue was again considered by this Court in the case of Amit Kumar Dwivedi (supra), in that case this Court after considering several judgments of Hon'ble Court and judgment of Apex Court observed that cognizance order must reflect application of mind and simply fill up and signing the printed proforma will not amount to application of mind.

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Paragraph no. 9 of Amit Kumar Dwivedi (supra) is quoted herein-under:-

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"9. In view of above legal position, this Court is of the view that merely signing and filling up the date and case crime number in printed proforma is absolutely non-application of mind because the cognizance order must reflect the prima facie opinion of the learned Magistrate on the material collected during investigation. Order of issuance of process is not an empty formality, it may affect the personal liberty of a person. Article 21 of Constitution of India guarantees personal liberty of a person and same cannot be deprived of, without due procedure of law. Apart from this, summoning of accused to appear before criminal court after taking cognizance is a serious matter, affecting the dignity, self-respect and image in society. Therefore, proper process by the criminal court must be followed at the time of taking cognizance and summoning the accused."

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From the legal position discussed above, it is clear that fill up and sign the printed proforma of cognizance order, is not a cognizance in the eyes of law as same does reflect application of mind on the part of concerned Magistrate.

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In the present case, it is not in dispute that impugned cognizance order was nothing but simply filled up printed proforma and thereafter signed by the C.J.M. 1st Gorakhpur, therefore same deserves to be quashed.

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As this Court is quashing the impugned cognizance order on technical ground, therefore no notice is required to be sent to opposite party no. 2. Therefore, present application is allowed and

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order dated 02.08.2023 passed by A.C.J.M. 1st, Gorakhpur in Case no. 39885/2023 arising out of Case Crime No. 449/2022, under Sections 498-A, 323, 504, 506 I.P.C. and 3/4 D.P. Act, P.S. Gorakhnath, District- Gorakhpur, is set aside and court below is directed to pass a fresh order within a period of one months from the date of receipt of copy of this order in the light of the observations made here-in-above.

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Let a copy of this order be sent to court below concerned by Registrar (Compliance).

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Order Date :- 21.3.2025 Sharad/-

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Digitally signed by :- SHARAD KUMAR SRIVASTAVA High Court of Judicature at Allahabad

Raju Gautam and 3 Others v. State of U.P. and Anothaer

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