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Allahabad High Court · body

2011 DIGILAW 744 (ALL)

Mohd. Sayeed v. State of U. P. and others

2011-03-24

SHRI NARAYAN SHUKLA

body2011
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. Criminal 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 - @HINDI@ 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.-(1) 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. 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 Aganval and others. 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 Aganval and others. 2000 ACC 686 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. Molian Meakins Ltd. and others, AIR 2000 SC 1456 after noticing the law laid down in Kanti Bhadra Shah v. State of West Bengal. 2000 (40) ACC 441 (SC) 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 of the accused persons, save and except a petition." 10. 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 of 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 to 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. 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 re-coding 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 (2000) 3 SCC 745 . 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 Anand Kumar Porwal v. State of U.P. and another 2011 (72) ACC 66 (All.). held that "it is trite law that no detailed 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 initiated. 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 2008 (62) ACC 826 this Court laid down the same principle. 16. In the case of Megh Nath Gupta and another v. State of U.P. and another 2008 (62) ACC 826 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 2009 (66) ACC 66 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. Case No. 3004 of 2008 (under section 482 Cr.P.C.) the question for consideration i 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.l. 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 fact 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. Part. Co gniz.ing past and past part, cog.nized v.t. To make (something) an object of cognition (O.F. connoissance, knowledge)", 19. The 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, (2008) 2 SCC 492 = 2008 (61) ACC 371 (SC) = 2008 (64) AIC 150 (SC). Paras 19 and 20 of which are reproduced hcreinun-der:- "Para 19- The expression "cognizance" has not been defined in the Code. But, the word (cognizance) is of in­definite import. It has no esoteric or mystic significance in criminal law. It merely means "become 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, 2005 (53) ACC 803 (SC) = 2005 (35) AIC 136 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 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 discloses 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. 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. 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.