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Madhya Pradesh High Court · body

2017 DIGILAW 605 (MP)

R. K. Jain v. State of M. P.

2017-05-03

SHEEL NAGU

body2017
ORDER : Sheel Nagu, J. The present petition invoking inherent powers of this Court u/S 482 Cr.P.C. assails the order of the trial Court taking cognizance on 14.03.2012 for the offence punishable u/S 23(1) of PNDT Act on the strength of written complaint filed by the appropriate authority under the said Act along with certain documents. 2. From a bare reading of the impugned order of taking cognizance, it is evident that no findings have been recorded before taking cognizance. The impugned order is nonspeaking. Reasons are the heart beat of an order, more so, when the order is passed by a judicial authority whose orders can are open to challenge in the higher forum. The decision of Apex Court in the case of Kranti Associates Private Ltd. & Another v. Masood Ahmed Khan & Others reported in (2010) 9 SCC 496 is worthy of reference. 3. In the absence of any reasons recorded by the learned Magistrate, the impugned order is unsustainable in law. 4. Accordingly, the present petition u/S 482 Cr.P.C. is allowed and the impugned order dated 14.03.2012 is set aside and the matter is remanded to the learned trial Judge to reconsider on the question of cognizance after passing a speaking order in terms of the law laid down by the Apex Court in the case of Fakhruddin Ahmad v. State of Uttranchal & Another reported in (2008) 17 SCC 157 . Relevant para 13, 14 and 15 of which are reproduced below for convenience and ready reference: 13. The next incidental question is as to what is meant by the expression "taking cognizance of an offence" by a Magistrate within the contemplation of Sec 190 of the Code? 14. The expression "cognizance" is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit v. State of W.B. (AIR p. 770 para 19) "19. .... The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. 14. The expression "cognizance" is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit v. State of W.B. (AIR p. 770 para 19) "19. .... The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely meansbecome aware of and when used with reference to a Court or Judge, to take notice of judicially." Approving the observations of the Calcutta High Court in Emperor v. Sourindra Mohan Chuckerbutty (at ILR p. 416), the Court said that "taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence." 15. Recently, this Court in Chief Enforcement Officer v. Videocon International Ltd. Speaking through C.K. Thakker, J. While considering the ambit and scope of the phrase "taking cognizance" under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Suptd, & Remembrancer of Legal Affairs v. Abani Kumar Banerjee which were approved by this Court in R.R. Chari v. State of U.P. The observations are : (Abani Kumar Banerjee case, AIR p. 438 para 7) "7. ... What is 'taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it . It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) Cr.P.C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g. ordering investigation under Section 156(3), or issuing search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." 5. The present order shall render ineffective in case the trial in the matter is already concluded. 6. With the aforesaid, the present petition stands disposed of.