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Jamilur Rahaman @ Md. Jamilur … vs State Of Bihar & Anr on 26 June, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.49793 of 2017
Arising Out of PS.Case No. -127 Year- 2016 Thana -GAYA KOTWALI District- GAYA

1. Jamilur Rahaman @ Md. Jamilur Rahaman,

2. Hasibur Rahman, Both sons of Late Khalil Rahman,

3. Nuri Bano, Wife of Hasibur Rahman,

4. Shabeena Praveen, Wife of Jamilur Rahaman, All resident of Mohalla-
Nauranga, P.S.- Mufassil, District- Gaya.

…. …. Petitioner/s
Versus

1. The State of Bihar.

2. Nasima Praveen, D/o Late Jameeruddin, Resident of Mohalla- Chhata Maszid,
P.S.- Kotwali, District- Gaya.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Sudhir Kumar Sinha, Adv.
For the Opposite Party/s : Mr. Ashok Kumar Singh No.1, APP

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 26-06-2018

Heard learned counsel for the petitioners and learned

counsel for the State.

2. By way of filing the present application under Section

482 of the Code of Criminal Procedure (for short „the Cr.P.C.‟), the

petitioners have prayed for quashing of the order dated 25.10.2016

passed by the learned Chief Judicial Magistrate, Gaya in Gaya

Kotwali P.S.Case No. 127 of 2016 by which he has taken cognizance

of the offence under Section 498-A of the Indian Penal Code.

3. It has been contended by the learned counsel for the

petitioners that the impugned order of cognizance has been passed by

the learned Chief Judicial Magistrate by filling up blanks only in pre-

written order format. It is further contended that the order has been
Patna High Court Cr.M isc. No.49793 of 2017 dt.26-06-2018

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passed mechanically without application of judicial mind and, hence,

it is fit to be set aside.

4. On the other hand, learned counsel for the State has

contended that though the impugned order has been passed on a pre-

written format by filling up gaps, it would be evident from perusal of

the order impugned that sufficient grounds were available before the

learned Magistrate to proceed further against the petitioners under

Section 498A of the Indian Penal Code. He contended that merely

because the order has been passed on a pre-written format, it cannot

be presumed that the learned Magistrate failed to apply his judicial

mind.

5. I have heard learned counsel for the parties and carefully

perused the impugned order dated 25.10.2016.

6. Without entering into the merits of the allegations, I am

of the considered opinion that the order impugned cannot be sustained

as it has been passed by filling up blanks on a pre-written format. It is

true that an elaborate order is not required to be passed to take

cognizance and to issue summons, but the order must disclose that

there has been an application of judicial mind. The practice of filling

up of blanks in readily typed/written format for passing judicial order

has been deprecated by this Court on many occasions. It is

unfortunate that despite there being repeated orders in this regard, the

learned Chief Judicial Magistrate, Gaya has passed the order in a
Patna High Court Cr.M isc. No.49793 of 2017 dt.26-06-2018

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mechanical and objectionable manner.

7. It is well settled that summoning of an accused in a

criminal case is a serious matter. 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 [(1998)5 SCC 749] 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 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.”

Patna High Court Cr.M isc. No.49793 of 2017 dt.26-06-2018

4/4

8. An order of cognizance passed in a standardized format

by filling up perfunctory details buttress an ex facie lack of

application of judicial mind.

9. Keeping in mind the discussions made hereinabove and

the ratio laid down by the Supreme Court in Pepsi Foods Ltd. and

Another (supra), the impugned order dated 25.10.2016 passed by the

learned Chief Judicial Magistrate, Gaya is quashed and the matter is

remitted back to the Court of Magistrate for passing order afresh

after perusing the allegations made in the first information report, the

statement of witnesses recorded under Section 161(3) of the Cr.P.C.

and the police report submitted under Section 173(2) of the Cr.P.C.

10. I hope and trust that the learned Chief Judicial

Magistrate shall be cautious in future and shall refrain from signing

orders on readily typed, written or printed format.

11. With the aforesaid observation and direction, the

application stands allowed.

(Ashwani Kumar Singh, J)
Pradeep/-

AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 28-06-2018
Transmission 28-06-2018
Date

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