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2016 DIGILAW 2772 (ALL)

Bindeswari Prasad Bhardwaj v. State of U. P.

2016-08-10

ABHAY MAHADEO THIPSAY

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JUDGMENT Abhay Mahadeo Thipsay, J. – Heard the learned counsel for the petitioner and the learned Additional Government Advocate. 2. The petitioner is the accused in Crl. Case No. 1129/2015 pending before the Chief Judicial Magistrate, Gonda. He is aggrieved by the filing of the charge sheet against him and the summoning order, and has approached this Court by the present petition praying that the charge sheet and the proceedings of the said case be quashed. 3. The learned counsel for the petitioner submitted that there has been no sanction for his prosecution as is required under the provisions of Section 197 of the Code of Criminal Procedure (the 'Code'). Though emphasis on this aspect has been placed, it is not asserted that the petitioner falls in the category of public servants who cannot be prosecuted without a sanction under Section 197 of the Code. 4. When this is found, the learned counsel for the petitioner submitted that the order taking cognizance is bad, as the same has been passed on a 'printed proforma' mechanically. According to him, this shows non-application of mind. 5. I have gone through the summoning order. The order is a typewritten one, with dates, names, etc., put by 'ink', in the blanks, kept in the typewritten matter. 6. Indeed, it appears that some matter had already been typed, and the blanks kept in, have been filled, in handwriting by the Magistrate. However, in my opinion this, by itself, does not show non-application of mind. 7. Learned counsel for the petitioner submitted that it has been held by this Court that the order of cognizance passed on a printed proforma, shows non-application of mind and such order is liable to be set aside. 8. I have been shown two decisions delivered by two Hon'ble Single Judges of this Court. 9. In the decision reported in 2010(2) JIC31 (All), a learned Single Judge has held that order taking cognizance was passed on a printed proforma by filling the blanks and that itself indicated non application of judicial mind in passing the said order. 10. 8. I have been shown two decisions delivered by two Hon'ble Single Judges of this Court. 9. In the decision reported in 2010(2) JIC31 (All), a learned Single Judge has held that order taking cognizance was passed on a printed proforma by filling the blanks and that itself indicated non application of judicial mind in passing the said order. 10. In the decision reported in 2012(2) JIC 563 (All), another learned Single Judge held that it was well settled that before a Magistrate could be said to have taken cognizance of an offence, it was imperative that he must have taken notice of the accusations and applied his mind to the allegations made in 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. A view has been taken in the said decision that 'since the order had been passed by filling up the blanks, it was illegal and incorrect'. 11. I have carefully gone through the aforesaid decisions. In both these decisions, the lower courts were directed to pass orders afresh, according to the law, by applying judicial mind and on the basis of the material collected by the investigating agency. 12. What orders were passed in those cases by the lowers courts after the matters were remanded back to them, by this Court is not known. 13. With utmost respect, in my opinion, these judgments cannot be construed as laying down any proposition of law. These judgments cannot be construed as laying down that 'irrespective of whether or not there are sufficient grounds for passing summoning orders against the accused, merely because a Magistrate has used a proforma for issuing summoning order, the summoning order becomes bad and illegal'. It is not clear from the said decisions whether in those cases there was, (or was not) sufficient material, or sufficient grounds, for taking cognizance. 14. It is quite elementary that where the charge sheet discloses sufficient material for proceeding against an accused, this Court will not interfere with the summoning order, just because the Magistrate has used a typed proforma. Ultimately, the question would be of application of mind. An order written or typewritten, though not in any particular form or proforma, may still suffer from non-application of mind. Ultimately, the question would be of application of mind. An order written or typewritten, though not in any particular form or proforma, may still suffer from non-application of mind. The contention regarding non-application of mind has to be examined on the basis of all the relevant aspects. When the charge sheet discloses sufficient material for proceeding against an accused, it would be difficult to presume 'non-application of mind while passing summoning order'. 15. Even otherwise, when it is not contended that there is not sufficient ground for proceeding against the accused, it is futile to set aside the order on the ground that the order has been 'mechanically written', as, after application of mind, the Magistrate is expected to pass the same order, viz: - summoning order. Therefore, quashing of the summoning order on such a ground would only result in avoidable delay and wastage of public money. 16. It is not even contended before me that 'even if the averments made in the police report and accompanying documents are taken at a face value, there is no case for proceeding against the petitioner'. When the availability of material in the charge sheet is not challenged, it would be absurd to claim that the order issuing summons should be set aside (because it is a 'proforma' order), and the Magistrate should be asked to pass another by writing in his hand. 17. I find no substance in the petition. The petition is rejected. Petition Rejected.