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Kaushal Kumar Gupta vs State Of U.P. And Another on 4 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 83

Case :- APPLICATION U/S 482 No. – 3821 of 2020

Applicant :- Kaushal Kumar Gupta

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Mohammad Waseem

Counsel for Opposite Party :- G.A.

Hon’ble Suresh Kumar Gupta,J.

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

This application under Section 482, Cr.P.C. has been filed for quashing the entire criminal proceedings of case No. 1505 of 2019 (State vs. Kaushal Kumar Gupta others), arising out of case crime No. 304 of 2018, under Sections 323, 504, 506, 354, 354A, 354B IPC, Police Station- Adampur, District Varanasi, as well as charge sheet dated 02.05.2019 and cognizance order dated 07.11.2019, pending in the court of Additional Chief Judicial Magistrate, Court No. 7, District Varanasi.

The contention of the counsel for the applicants is that the applicants have been falsely implicated in this case and on the basis of false and frivolous allegation, the present FIR was lodged against the applicant. He further submitted that there is dispute between opposite party no. 2 and the applicant regarding residential house. He further submitted that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment, the Investigating officer without collecting sufficient evidence submitted charge sheet under section 354 IPC against the applicant. He further submitted that learned Magistrate has not applied his judicial mind while in passing the cognizance order as the order has been made on a printed proforma, in which the name of the accused has been filled up by hand. This Court in the case of Ankit vs. State of U.P. and another, JIC 2010 (1) 432, has held that cognizance order being on a printed proforma is clearly without application of judicial mind and henc is liable to quash on this ground alone.

Learned counsel for the applicant also relied upon paragraph Nos. 6 and 12 of the judgement passed by Hon’ble Allahabad High Court in the case of Akash Garg Vs. State of U.P. reported in [2011 (11) ADJ 849].

“6. It is well settled that the Magistrate is not bound by the conclusion of the Investigating Officer. He is competent under law to form his own independent opinion on the basis of the materials collected during the investigation. The Magistrate may or may not agree with the conclusion of the Investigating Officer. If the Investigating Officer submits charge sheet, in that eventuality the Magistrate may differ from the charge sheet and refuse to take cognizance by holding that no case is made out. In a case where the final report is submitted the Magistrate may on perusal of the materials placed in support of the final report opine that the conclusion of the Investigating Officer is not correct and the offence is made out. In that eventuality, the Magistrate may reject the final report and take cognizance of the offence.

12. It is also well settled that at the stage of taking cognizance of an offence, the Magistrate is not required to examine thoroughly the merits and demerits of the case and to record a final verdict. At that stage he is not required to record even reasons, as expression of reasons in support of the cognizance may result in causing prejudice to the rights of the parties (complainant or accused) and may also in due course result in prejudicing the trial. However, the order of the Magistrate must reflect that he has applied his mind to the facts of the case. In other words at the stage of taking cognizance what is required from the Magistrate is to apply his mind to the facts of the case including the evidence collected during the investigation and to see whether or not there is sufficient ground (prima facie case) to proceed with the case. The law does not require the Magistrate to record reasons for taking cognizance of an offence.”

What is meant by ‘taking cognizance’ in regard to an offence by a competent Magistrate is not defined or described in the Code of Criminal Procedure, 1973 (Cr.P.C.) or any other act. However the term has acquired a definite connotation through well settled judicial pronouncements.

The term ‘taking cognizance’ actually means ‘become aware of’, but in reference to a Court or a Judge, it means ‘to take notice of judicially’. The term has no mystic significance in criminal law. In practice ‘taking cognizance’ means taking notice of an offence for initiation of proceedings under Section 190 Cr.P.C.

‘Cognizance’ refers to the point when the court first takes judicial notice of an offence by not only applying its mind to the contents of the complaint/police report, but also proceeding further as provided further in Chapter XIV of the Cr.P.C.

Taking cognizance includes either taking steps to see whether there is basis for initiating a judicial proceeding or initiating a judicial proceeding against an offender by the Magistrate.

Ordinarily, a citizen can initiate criminal proceedings against an offence by two means. He may either lodge an FIR before the Police Officer (Station House Officer) if the offence is a cognizable one, or he may lodge complaint before a competent Judicial Magistrate irrespective of whether the offence is cognizable or non-cognizable. Any Magistrate of the first class and the duly empowered second class Magistrate may take cognizance of any offence for further proceedings.

As per Section 190(1) an empowered Magistrate may take cognizance of any offence-

a). Upon receiving a complaint of facts which constitute such an offence.

b). Upon a police report of such facts.

c). Upon information received from any person other than a police officer, or upon his own knowledge, that such an offence has been committed.”

Thus the cognizance is taken when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any person regarding an offence.

The issuance of process by the court occurs at a subsequent stage duly after considering the materials placed before it. It happens when the Magistrate decides to proceed against the offender whom a prima facie case is clearly made out. Taking cognizance of an offence is not equivalent to issuance of process: issuance of process takes place only after taking cognizance of the offence. When a Magistrate applies his mind for issue of process, he must be held to have taken cognizance of the offences the complaint put forth.

The cognizance and summoning order passed by learned Magistrate dated 07.11.2019 is read as under:-

“vkt vkjksi i izkIr gqvkA leLr vfHk;kstu iziksa dk voyksdu fd;kA laKku fy;k x;k ntZ jftLVj gksA ikoyh esa ewy vfHk;kstu izi ‘kkfey fef’ky fd;k x;kA vfHk;qDr tfj;s lEeu ryc gks ikoyh okLrs gkftjh eqfYte fnukad 28-01-20 dks is’k gksA”

Perusal of the record shows that impugned summoning order dated 07.11.2019 has been passed in a cyclostyled proforma and only the case number, name of accused and Sections of IPC were written by pen and rest of the contents are on a printed proforma order. It is well settled that summoning order has to be passed after considering relevant material and showing appropriate reasons.

Considering the above-stated facts and law as referred above, it is apparent that there is nothing to indicate that the said impugned order has been passed after applying judicial mind and thus, the impugned summoning order dated 07.11.2019 is not sustainable and, accordingly, the impugned summoning order dated 07.11.2019 is, hereby, set aside and learned trial court is directed to pass order afresh, in accordance with law.

With the aforesaid observations, the instant application is disposed of finally.

Order Date :- 04.02.2020

v.k.updh.

 

 

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