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Allahabad High Court · body

2011 DIGILAW 737 (ALL)

MOHO. SAYEED v. STATE OF U. P.

2011-03-24

SHRI NARAYAN SHUKLA

body2011
JUDGMENT SHRI NARAYAN SHUKLA, J.-Since common question of fuel and law are involved in both petitions, the same are being decided by• a common judgment and order. 2. Heard learned Counsel for the petitioners and Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State. 3. The petitioner of Criminal Misc. Case No. 1191 of 2011 (under section 482 Cr.P.C.) has challenged the summoning order dated 10.6.2010 issued by the 1st Additional Chief Judicial Magistrate, Kheri in Case No. 163 of 2010, mainly on the ground that the same is without application of mind, therefore it is unsustainable in the eyes of law. The petitioners of Criminal Misc. Case No. 1205 of 2011 (under section 482 Cr.P.C) has also challenged the order dated 6.12.2010 passed by the Chief Judicial Magistrate, Unnao in Misc. Crimina) Case No. 11201 of 2010. 4. Learned Counsel for the petitioners submits that the Magistrate was obliged to record his satisfaction for taking cognizance in the matter, but it has not been done so far. The summoning order dated 10.6.2010 passed by the Court below is reproduced hereinunder - vkt vkjksi&i= izkIr gqvkA vkjksi&i= esa vafdr vijk/k dk iw.kZ vk/kkj i;kZIr gS vfHk;qDr us tekur ugha djk;h gSA ekuuh; mPp U;k;ky; ls U;k;ky; esa vkjksi&i= nkf[ky gksus rFkk mldh fxjrkjh LFkfxr FkhA voyksfdr FkhA vkns'k ^^eqdnek ntZ jft- gks lEeu fnukad 13-7-2010 ds fy, tkjh gksA udysa cuok;h tk;saA g-v- ¼lh-ts-,e-½** 5. Chapter XIV of the Code of Criminal Procedure, 1973 is tilled as "Conditions requisite for initiation of proceedings". Under this Chapter section 190 pertains to "Cognizance of offences by Magistrates". Since the provision of this section is relevant for consideration to the present case, it is extracted below: "190. Cognizance of offences by Magistrates.-(l) Subject to the provisions of this chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence(a) upon receiving a complaint of facts which constitute such 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 offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." 6. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." 6. The same controversy has been considered by the Hon'ble Supreme Court in the case of Dy. Chief Controller of Imports and Exports v. Roshan Lal Agarwal and others. In this case one of the question for consideration was that the Presiding Officer of the Special Court had not applied his judicial mind to the complaint before taking cognizance of offence. In this case the learned Magistrate had passed the following order: "Cognizance taken, Register the case. Issue summons to the accused." 7. The order of the learned Magistrate was challenged before the High Court. The High Court allowed the petition with the observation that the order passed by the Special Court taking cognizance of the offence does not show that the learned Magistrate had even refused the complaint or that he had applied his judicial mind before taking of the cognizance. 8. The Hon'ble Supreme Court discussed the issue in the following manner: "In' determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not, whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons." 9. This question was considered recently in U.P; Pollution Control Board v. M/s. Mohan Meakins Ltd. and others, after noticing the law laid down in Kanti Bhadra Shah v. State of West Bengal. In the case of Kanti Bhadra Shah (supra) the same controversy was involved in the matter. The learned Magistrate passed the following order "The investigating officer has submitted charge-sheet against the four accused persons after completion of the investigation under sections 454, 380, 120-B IPC. hence prima facie the case is established against the accused persons under those sections. There is nothing on behalf (If the accused persons, save and except a petition " 10. The High Court set aside the aforesaid order and remarked that it was not discernible. hence prima facie the case is established against the accused persons under those sections. There is nothing on behalf (If the accused persons, save and except a petition " 10. The High Court set aside the aforesaid order and remarked that it was not discernible. from the order of the Magistrate that he had taken into consideration the charge-sheet and the other papers submitted therewith for satisfying himself as to whether there is a prima facie case against the accused persons for the aforesaid offences. The Metropolitan Magistrate was thereupon directed to peruse the charge-sheet along with other papers submitted to him and satisfy himself again as the existence of a prima facie case against the accused. The said order was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court observed that we wish to point out that if the Trial Court decides to frame a charge, there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned by considering the provisions of section 239 of Cr.P.C. 11. The Hon'ble Supreme Court observed that it is pertinent, to note that this section requires a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused. Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from section 245. The Hon'ble Supreme Court further observed that in this context it is pertinent to point out that even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused. But if he is to frame the charge, he may do so without recoding his reasons for showing why he framed the charge. 12. But if he is to frame the charge, he may do so without recoding his reasons for showing why he framed the charge. 12. In para 12 of the aforesaid case the Hon'ble Supreme Court held that it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. 13. Relying upon the decision of Kanti Bhadra Shah (supra), the Hon'ble Supreme Court in the case of U.P. Pollution Control Board v. Mohan Meakins Ltd. and others,/reiterated the same principles and held that the Sessions Judge was in error for quashing the process at the first round merely on the ground that the Chief Judicial Magistrate had not passed a speaking order. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. 14. This Court in the case of Ammd Kumar Porwal v. State of U.P. and another, held that "it is trite law that no qetailed order is required to be passed at the stage of summoning. No meticulous examination of facts is required to be done at that stage. By summoning an accused, only a proceeding is initiafed. Accused person is required to appear in the Court to answer implanted charge. For initiation of proceeding, a detailed examination of facts and circumstances of the prosecution case are not required nor the scheme of the Code provides for such an exercise by the summoning Court." 15. In the case of Megh Nath Gupta and another v. State of U.P. and another, this Court laid down the same principle. 16. I also had occasion to consider the same very controversy in the case of Manna Lal Gupta v. State of U.P. and another. In this case the order of revisional Court was challenged mainly on the ground that though the learned Additional Sessions Judge, prima facie, has shown his satisfaction for framing of charges, but he has not discussed the material available before him for framing of charges. This Court has reiterated the same view as has been laid down above. 17. In another case i.e. Vikas Yadav and others v. State of U.P. and another, (Criminal Misc. This Court has reiterated the same view as has been laid down above. 17. In another case i.e. Vikas Yadav and others v. State of U.P. and another, (Criminal Misc. Case No. 3004 of 2008 (under section 482 Cr.P.C.) the question for consideration before me was whether learned Magistrate can summon the accused for trial without taking cognizance of offence? 18. In order to know the definition of "cognizance" I had gone through the different dictionaries which defines the term 'cognizance" as under: "In Black's Law Dictionary the word "cognizance" has been defined as under:"Cognizance /ko(g)nezens/. Jurisdiction, or the exercise of jurisdiction, or power to try and determine causes; judicial examination of a matter, or power and authority to make it. Judicial notice or knowledge; the judicial hearing of a cause; acknowledgement; confession; recognition. In Oxford Dictionary the word "cognizance" has been defined as under: "Cognizance /ko(g)niz(e)ns/ (also cognisance)" n.1. Formal knowledge or awareness. - Law the action of taking judicial notice. 2. Heraldry a distinctive device or mark, especially as formerly worn by retainers of a noble house. PHRASES take cognizance of formal attend to; take account of. In the New Lexicon Webster's Dictionary of the English Language the word "cognizance" has been defined as under: "cog-ni-zance (kognizens, konizens) n. . the range of mental observation or awareness / the fast of being aware, knowledge / (law) the power given to a Court to deal with a given matter, jurisdiction / (heraldry) a distinguishing device beyond one's cognizance not one's concern, outside one's terms of reference to have cognizance of to take into one's reckoning cognizant adj.cognize (kbgnaiz) pres. Part. Co gniz.ing past and past part, cog.nized v.t. To make' (something) an object of cognition (O.F. connoissance, knowledge)". 19. Tne Hon'ble Supreme Court also discussed the term "cognizance" in the case of S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and others, Paras 19 and 20 of which are reproduced hcreinunder: "Para 19- The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric I or mystic significance in criminal law. It merely means "become c aware of" and when used with reference to a Court or a judge, it connotes "to take notice of judicially'. But the word (cognizance) is of indefinite import. It has no esoteric I or mystic significance in criminal law. It merely means "become c aware of" and when used with reference to a Court or a judge, it connotes "to take notice of judicially'. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. Para 20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken "cognizance" 20. In the case of C.R.E.F. Finance Ltd. v. Shree Shanthi Homes (P.) Ltd. and another/ the learned Magistrate had issued process without taking cognizance of the offences. The correctness of the order of High Court was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that even if we assume, though that is not the case, that the words "cognizance taken" were not to be found in she order recorded by him on that date, in our view, that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint disclose-- the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance Of the offence. 21. 21. After going through the several decisions of Hon'ble Supreme Court as well as of this Court on the subject in issue, I am of the view that once the Magistrate takes cognizance of an offence either without discussing what are the reasons behind it, it shall be presumed that on the basis of material available before him he is satisfied that there is sufficient material for taking cognizance and if he is satisfied with those materials for taking cognizance, the detail discussion of those materials by the learned Magistrate is not required. Further once he issues process, even without writing word "cognizance", it is presumed that he has taken cognizance, the writing of word "cognizance is taken" is not necessary. The reason is that by issuance of process he proceeds with' the case and the accused who has been summoned for trial have sufficient opportunity to defend himself at the appropriate stage provided in the code. In response of issuance of process / summons it is not open for the accused to challenge the summoning order on the ground that no cognizance has been taken or no satisfaction has been shown or there is no detail discussion of the material available rather he has to follow the next step of the process. 22. Therefore, under the strength of the principles laid down hereinabove, I am of the view that the summoning order dated 10.6.2010 issued by the 1st Additional Chief Judicial Magistrate, Kheri in Case No. 163 of 2010 and order dated 6.12.2010 passed by the Chief Judicial Magistrate, Unnao in Misc. Criminal Case No. 11201 of 2010 do not suffer from error. However it is provided that if the petitioners appear before the Courts below within four weeks from today and move an application for bail, the same shall be considered and disposed' of expeditiously in accordance with law. For four weeks, no coercive action shall be taken against the petitioners. 23. In the result, both petitions are dismissed.