Krishna Kanhaiya @ Krishna Sahu, son of Haroon Sahu v. State of Jharkhand
2019-01-29
SHREE CHANDRASHEKHAR
body2019
DigiLaw.ai
JUDGMENT : 1. The petitioner is aggrieved of the order dated 21.03.2012 passed in Mahila P.S. Case No. 24 of 2011 corresponding to G.R. No. 4525 of 2011 by which cognizance of the offence under section 498A IPC has been taken and process has been issued to the petitioner. 2. The petitioner has asserted that he is younger brother-in-law of the informant and the order taking cognizance against co-accused namely, Holika Kumari Ram has been quashed by an order dated 18.07.2013 passed in Cr. Revision No. 614 of 2013. 3. Section 190 of the Code of Criminal Procedure provides that a Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf 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, or (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 190 appears under Chapter-XIV of the Code of Criminal Procedure and it is subject to the provisions under Chapter-XIV. Evidently, cognizance of the offence is taken by the Magistrate and not of the offender. An order taking cognizance or any order through which a proceeding in the criminal court is initiated is a serious matter and such powers cannot be exercised by the Magistrate lightly. By now it is well-settled that powers under section 190 Cr.P.C must be exercised judicially and the order taking cognizance must reflect application of mind by the Magistrate; the Magistrate is not a post-office and he does not act like a machine (refer, “Mehmood UL Rehman Vrs. Khazir Mohammad Tunda and others” reported in AIR 2015 SC 2195 ). 4. A bare perusal of the impugned order dated 21.03.2012 does not disclose proper application of mind by the Magistrate. Non-application of mind by the learned Judicial Magistrate is reflected in the impugned order dated 21.03.2012 wherein the word “cognizance” has been written by hand whereas the entire order is a typed one. The expression ‘prima-facie’ is not a magic word mere use of which can be a substitute for the application of mind by the Magistrate when process/warrant of arrest against an accused is issued.
The expression ‘prima-facie’ is not a magic word mere use of which can be a substitute for the application of mind by the Magistrate when process/warrant of arrest against an accused is issued. The order taking cognizance no doubt need not be a detailed order but it must reflect application of mind by the Magistrate, that from the materials produced before it a prima-facie case has been made out and therefore summons to the accused persons. The impugned order dated 21.03.2012 is a cryptic order which does not disclose application of mind by the trial Magistrate. 5. Viewed thus and for the reasons indicated hereinabove, the order taking cognizance dated 21.03.2012 is quashed. 6. In the result, Cr. M. P. No. 39 of 2016 is allowed.