Ashutosh Kumar & Ors vs State Of Bihar & Anr on 20 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.18992 of 2017
Arising Out of PS.Case No. -66 Year- 2016 Thana -M AHILA P.S. District- MUZAFFARPUR

1. Ashutosh Kumar son of Shiv Kumar Singh

2. Shiv Kumar Singh son of Late Rampravesh Singh

3. Punam Devi wife of Shiv Kumar Singh

4. Mirtunjay Kumar son of Shiv Kumar Singh

5. Umesh Singh son of Late Brij Bihari Singh @ Bipin Bihari Singh

6. Annu Kumari @ Annu Devi @ Annu Singh wife of Umesh Singh
All are resident of village- Ram Nagar, P.S.-Gaay Ghat, District-
Muzaffarpur
…. …. Petitioner/s
Versus

1. State of Bihar

2. Priyanka Kumari wife of Ashutosh Kumar daughter of Krishnakant Singh,
resident of Mohalla- Ahiyapur, P.S.-Ahiyapur, District- Muzaffarpur

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Niraj Kumar Sanidh, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 20-11-2017

Heard learned counsel for the petitioners and learned

counsel for the State.

2. This application under Section 482 of the Code of

Criminal Procedure (for short ‘the Cr.P.C.’) has been filed for

quashing the order dated 28.10.2016 passed by the learned Additional
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Chief Judicial Magistrate,-VII, Muzaffarpur in connection with

Mahila P.S. Case No.66 of 2016 dated 24.05.2016 whereby the

learned Additional Chief Judicial Magistrate took cognizance of the

offences punishable under Section 498A of the Indian Penal Code (for

short ‘the I.P.C’) and Sections 3 and 4 of the Dowry Prohibition Act

(for short ‘D.P.Act’).

3. The petitioners were made named accused in Mahila P.S.

Case No.66 of 2016 dated 24.05.2016 registered under Section 498A

of the the I.P.C. and Sections 3 and 4 of the D.P.Act. On completion

of investigation, the police found the allegations to be true and

submitted charge-sheet against them. After receipt of the charge-sheet,

the learned Magistrate took cognizance of the offences under which

charge-sheet was submitted.

4. Learned counsel for the petitioners submitted that the

order has been passed mechanically by filling up certain blanks in the

pre-printed format. He submitted that even without there being any

specific allegation against the petitioners, the learned Additional Chief

Judicial Magistrate summoned them to face trial for the offences

alleged. He contended that summoning an accused in criminal case is

a serious matter and, thus, need for proper application of mind by the

court at the stage of summoning has been highlighted by the Supreme

Court in Pepsi Foods Ltd. and Another vs. Special Judicial
Patna High Court Cr.M isc. No.18992 of 2017 dt.20-11-2017

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Magistrate and Others, reported in (1998) 5 SCC 749 and

Fakhruddin Ahmad vs. State of Uttaranchal and Another,

reported in (2008) 17 SCC 157.

5. On the other hand, learned counsel for the State

submitted that though the order has been passed by the learned

Magistrate by filling up blanks in the pre-printed format, the same

cannot be held to be illegal. He submitted that the FIR contains

ingredients of the offences alleged and, in course of investigation, the

allegations made have been found true and, therefore, the learned

Magistrate rightly took cognizance of the offences and summoned the

petitioners.

6. I have heard learned counsel for the parties and perused

the record.

7. The order impugned reads as under:-

“The I.O. has submitted charge sheet u/s
498(A) I.P.C. and 3/4 D.P.Act against accused
persons as noted in column no.11 of charge
sheet.

Perused the F.I.R., Charge Sheet, Case Diary
and record from which it appears that a prima-
facie case make out against the accused persons
as noted in column.-11 of the C.S. for the above
said offences.

Accordingly cognizance has been taken u/s
498(A)I.P.C. and 3/4 D.P.Act against the accused
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persons as noted in column no.11 of charge
sheet. Present case is kept in personal file for
disposal.

Office to issue summon against the accused
persons for their appearance and facing trial.

22/12/2016 for appearance.” (underlining
mine)

8. Let it be noted that except the underlined portion in the

impugned order all the contents are pre-printed. An order by filling

up only Sections and the date mentioned in the charge-sheet by the

police in format pre-prepared for the purpose is impermissible in law.

The manner in which the order has been passed is somewhat

disturbing. More so, in a case involving cognizance offence. The

learned Magistrate has not even bothered to record the names of

persons summoned to face trial in the impugned order.

9. The need for proper application of mind by the court at

the stage of summoning has been highlighted by the Supreme Court

in Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate

and Others (supra) in paragraph 28 as under:

“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
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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. The
Magistrate has to carefully scrutinize 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.”

10. In Fakhruddin Ahmad Vs. State of Uttaranchal and

Another reported in (2008) 17 SCC 157 in paragraph 17, the

Supreme Court held as under:-

“17. Nevertheless, it is well settled that before a
Magistrate can be said to have taken
cognizance of an offence, it is imperative that
he must have taken notice of the accusations
and applied his mind to the allegations made in
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the complaint or in the police report or the
information received from a source other than
a police report, as the case may be, and the
material filed therewith. It needs little
emphasis that it is only when the Magistrate
applies his mind and is satisfied that the
allegations, if proved, would constitute an
offence and decides to initiate proceedings
against the alleged offender, that it can be
positively stated that he has taken cognizance
of the offence. Cognizance is in regard to the
offence and not the offender.”

11. It would be manifest from the decisions of the Supreme

Court noted above that taking cognizance and summoning an

accused in a criminal case is a serious matter, as it has serious

consequences on the liberty of an accused. Pursuant to such order, he

is made to take bail and face trial for a criminal offence. An order of

cognizance passed in a standardized format by filling up the only

perfunctory details buttress ex facie lack of application of mind.

12. For the reasons noted above, I set aside the impugned

order passed by the learned Additional Chief Judicial Magistrate-VII,

Muzaffarpur in Mahila P.S. Case No.66 of 2016 and remit the matter

to the Court of Magistrate for passing order afresh after taking into

consideration all the materials available on record including the police
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report submitted under Section 173(2) of the Cr.P.C. I also direct the

learned Additional Chief Judicial Magistrate to be cautious in future

and refrain from passing orders in formats prepared in advance

containing blanks to be filled in with formal details.

13. With the aforesaid observations and directions, the

application stands allowed.

(Ashwani Kumar Singh, J)
Md.S./-

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 25.11.2017
Transmission 25.11.2017
Date

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