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2021 DIGILAW 1366 (ALL)

Pawan Kumar v. State Of U. P.

2021-11-18

SANJAY KUMAR PACHORI

body2021
JUDGMENT : 1. Heard Syed Mohammad Abbas Abdy, learned counsel for the applicant, Shri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the material on record. 2. The instant application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") has been filed for quashing the entire proceedings of impugned charge-sheet dated 16.1.2019 as well as cognizance order dated 18.3.2019 in Criminal Case No. 2527 of 2019 (State v. Pawan Kumar) arising out of Case Crime No. 0339 of 2018, under Sections 420, 467, 468, 471 of Indian Penal Code (in short "IPC”), registered at Police Station Kotwali Shahar, District Bulandshahr, pending before the Court of Chief Judicial Magistrate, Bulandshahr. BRIEF FACTS OF THE CASE: Brief facts, as unfolded from the record as under: 3. The First Information Report dated 29.3.2018 under Sections 420, 467, 468, 471, I.P.C. at Police Station Kotwali Shahr, Bulandshahr, has been lodged by the opposite parties no. 2 and 3 against the applicant and unknown employees of Tehsil, Dadri, stating that the father of the first informants/opposite party nos. 2 & 3 was the owner and recorded tenure holder of agriculture land of Khata No. 986, Gata No. 1578/4 area 0.4680 hectare. After the death of their father they became owner of the aforesaid land on the basis of registered will and are in possession of the said agriculture land, their names have been mutated in the record of rights. The applicant prepared a forged fabricated sale deed dated 30.5.1974/19.6.1974 in the name of his father Ram Chandra from the first informants' father Raghuver Dayal relating to the land of area 1818 sq. yards of Gata No. 1578/4. The applicant replaced the aforesaid sale deed by another sale deed which had been executed by Teekam Singh in favour of Smt. Satyawati Devi wife of Shive Kumar on 30.5.1974 and registered on 19.6.1974 as document no. 1813 Bahi no. 1 Zild no. 994-997 page no. 279/87-88 with the help of the employees of concerned department. The applicant tried to mutate the land of the first informants in his favour on the basis of a forged sale deed. When the first informants came to know about the fake registration of the sale deed, the first information report was lodged. SUBMISSIONS BEFORE THE COURT: 4. 279/87-88 with the help of the employees of concerned department. The applicant tried to mutate the land of the first informants in his favour on the basis of a forged sale deed. When the first informants came to know about the fake registration of the sale deed, the first information report was lodged. SUBMISSIONS BEFORE THE COURT: 4. Learned counsel for the applicant assailed that the impugned order is being passed without applying judicial mind in taking cognizance on printed proforma wherein, dates have been filled up by the court employee and initial signature has been made by the Magistrate concerned. The learned counsel has submitted that the dispute raised by the first informant is purely a civil dispute. The applicant filed a suit against the first informants on 30.9.2014 with regard to the property in question for permanent injunction. The court of Civil Judge (Junior Division) Court No. 2, Bulandshahar granted interim injunction vide order dated 30.9.2014. Thereafter, the first informants appeared in the court below in Suit No. 217 of 2014 and prayed to restrain the applicant from alienating the property in question. The Investigating Officer without proper investigation filed charge sheet in the present case despite the fact that the matter with regard to the same property, on the basis of sale deed dated 19.6.1974 is pending consideration before the Civil Court in suit No. 217 of 2014 in which issues have been framed on 12.1.2019. 5. It has been further submitted that the charge sheet has been filed by the investigating officer in a mechanical manner without considering the evidence on record and the Magistrate did not apply his judicial mind at the time of taking cognizance and passed the impugned order dated 18.3.2019 in an arbitrary manner without applying judicial mind on printed proforma by filling up the dates. Therefore, the impugned charge-sheet, the cognizance order and further proceedings pursuant thereto is an abuse of the process of the court and is liable to be quashed. He relied upon the decision of this Court in Ankit Vs. State of U.P. and another, JIC 2010 (1) 432. 6. Therefore, the impugned charge-sheet, the cognizance order and further proceedings pursuant thereto is an abuse of the process of the court and is liable to be quashed. He relied upon the decision of this Court in Ankit Vs. State of U.P. and another, JIC 2010 (1) 432. 6. Learned A.G.A. has vehemently opposed the arguments made by the learned counsel for the applicant and submitted that as per allegations made in the FIR and the evidence collected during the investigation, it makes out a prima facie cognizable offence against the applicant, but it is admitted that the order impugned has been passed by the concerned Magistrate on the printed proforma. 7. Certified copy of the impugned order dated 18.9.2019 filed as Annexure SA -3 of the Supplementary affidavit. By the order dated 18.9.2019, learned Magistrate took cognizance in the matter against the applicant. At this stage it is relevant to extract the aforesaid order as under: ^^vkt fnuakd ---------------- dks mDr vijk/k la[;k es foospd us vkjksi i= e; dsl Mk;jh izsf"kr fd;k gSA lEiw.kZ dsl Mk;jh dk fof/kuqlkj ifjlhyu fd;k x;k vijk/k dk izalaKku fy;k x;k vk/kkj i;kZIr gSA ntZ jftLVkj gksA udys nh tk;s] ,ao vfHk;qDr x.kksa dks leu }kjk fnukad ----------------------- ds fy, ryc fd;k tk;sA^^ lhŒtsŒ,eŒ cqyUn'kgj Hence, foremost question arises for consideration is whether the impugned cognizance order dated 18.9.2019 has been passed by the concerned Magistrate after applying judicial mind? 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 Section 190 of the Code? 8. To examine the validity of the impugned order, it would be convenient to refer the relevant statutory provisions as well as the case laws relating to the subject. 9. The power of the court to take cognizance of the offence is laid in Section 190 of the Code, which reads as under: "190. Cognizance of offences by Magistrate.-(1) Subject to the provisions of this Chapter any Magistrate of the first class, and any Magistrate of 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 informations 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." 10. Thus, it is trite that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the investigating officer in police report and decide whether an offence has been made out or not. This is because the purpose of police report under Section 173(2) of the Code, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of police report and material referred therein, a case for cognizance is made out or not. (Vide: Fakhurddin Ahmad v. State of Uttaranchal, (2008) 17 SCC 157 (SCC p. 161 para 12)) 11. In Darshan Singh Ram Kishan v. State of Maharashtra, AIR 1971 SC 2372 , while considering Section 190 of the Code of 1908, the Apex Court observed 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. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer." 12. While considering the expression "taking cognizance" of an offence by a Magistrate within the contemplation of Section 190 of the Code, in Devarapally Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors. AIR 1976 SC 1672 , (3 Judge) the Supreme Court has observed as under: (AIR p. 1677 para 14) 14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. v. V. Narayana Reddy & Ors. AIR 1976 SC 1672 , (3 Judge) the Supreme Court has observed as under: (AIR p. 1677 para 14) 14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning to Section 190 (1) (a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence." 13. In State of W.B. & Anr. v. Mohd. Khalid & Ors., (1995) 1 SCC 684 , the Supreme Court after taking note of the fact that the expression had not been defined in the Code, observed as under: (SCC p. 696 para 43-44) 14. In State of W.B. & Anr. v. Mohd. Khalid & Ors., (1995) 1 SCC 684 , the Supreme Court after taking note of the fact that the expression had not been defined in the Code, observed as under: (SCC p. 696 para 43-44) 14. In Fakharuddin Ahmad v. State of Uttaranchal (2008) 17 SCC 157 , the Supreme Court, considering the scope of expression "cognizance" it was observed after referring the judgments of cases Ajit Kumar Palit v. State of W.B., AIR 1963 SC 765 (AIR p. 770 para 19, Emperor v. Sourindra Mohan Chuckerbutty, ILR (1910) 37 Cal 412 (ILR p. 416), Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492 as under: (SCC p. 162-63 para 16-17) "16. From the aforenoted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by "taking cognizance". Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action. 17. Nevertheless, it is well settled that before the Magistrate can be said to have taken cognizance of an offence, it is 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. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender." 15. In Prasad Shrikant Purohit v. State of Maharashtra & Anr. (2015) 7 SCC 440 , the Supreme Court has observed as under: (SCC p. 480-81 para 68) "68. Mr. Lalit, learned counsel in the course of his submissions relied upon Ajit Kumar Palit v. State of W.B., AIR 1963 SC 765 . In Prasad Shrikant Purohit v. State of Maharashtra & Anr. (2015) 7 SCC 440 , the Supreme Court has observed as under: (SCC p. 480-81 para 68) "68. Mr. Lalit, learned counsel in the course of his submissions relied upon Ajit Kumar Palit v. State of W.B., AIR 1963 SC 765 . In the said decision with reference to the expression "cognizance" a three Judge Bench of this Court has explained what is really meant by the said expression in the following words in para 19 (AIR p. 770) "19. ...The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means become aware of and when used with reference to a court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor, AIR 1943 Pat 245, by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R. R. Chari v. State of U.P., AIR 1951 SC 207 (SCR at P. 320: AIR at p. 210) that the word 'cognizance' was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Sourindra Mohan Chuckerbutty v. Emperor, ILR (1910) 37 Cal 412(ILR at p. 416 SCC online Cal) ‘...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.’ Where the statute prescribes the materials on which alone the judicial mind shall operate before any steps is taken, obviously the statutory requirement must be fulfilled." In the above-extracted portion the reference made to the earlier judgment in R. R. Chari's case reported in R.R.Chari, AIR 1951 SC 207 (AIR at p. 210, para 8) that the word 'cognizance' was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence throws sufficient light to state that at that very moment when a Magistrate takes judicial notice of an offence, the requirement of cognizance of such offence will get fulfilled. Therefore, the said decision also fully supports our conclusion on the question of taking cognizance by the competent court.” 16. Therefore, the said decision also fully supports our conclusion on the question of taking cognizance by the competent court.” 16. Upon keeping in mind the position of law, it is settled that taking cognizance is a well-known but undefined concept in criminal jurisprudence. The Code of Criminal Procedure does not define the word "cognizance". The dictionary meaning of the word "cognizance" is 'judicial hearing of a matter'. Taking cognizance of offence by Magistrate under the Criminal Procedure Code is laid down under Section 190 (1) of the Code. Under that provision a Magistrate may take cognizance of any offence in three different ways, namely, (i) upon receiving a complaint of facts which constitute such offence; (ii) upon a report in writing of such facts made by any police officer; and (iii) upon information received from any person other than a police officer or upon his own knowledge or suspicion, that such offence has been committed. The only restriction contained in Section 190 is that the power to take cognizance is subject to the provisions of this Chapter. 17. This Court in the case of Megh Nath Gupta & Anr. v. State of U.P. & Anr., 2008 (62) ACC 826, after referring the cases of Deputy Chief Controller Import and Export v. Roshan Lal Agarwal, (2003) 4 SCC 139 , UP Pollution Control Board v. Mohan Meakins, (2000) 3 SCC 745 , Kanti Bhadra v. State of West Bengal, (2000) 1 SCC 722 , it has been observed that no speaking order is needed when a court merely takes cognizance or issue summons, although reasons may be required when a complaint is being dismissed and therefore, the attack to the order taking cognizance on the charge sheet passed by the CJM on 28.2.2005 on this ground must be summarily repulsed as devoid of any substance. 18. In the case of Ankit Vs. State of U.P. and another, 2009 (9) ADJ 778 , this Court has observed in para no. 9 that paper No. 31 is the certified copy of the impugned order, which has been initiated by Sri Talevar Singh, the then judicial magistrate-III, Saharanpur. This order has been prepared by filling up the blank on the printed proforma. State of U.P. and another, 2009 (9) ADJ 778 , this Court has observed in para no. 9 that paper No. 31 is the certified copy of the impugned order, which has been initiated by Sri Talevar Singh, the then judicial magistrate-III, Saharanpur. This order has been prepared by filling up the blank on the printed proforma. The blanks in the printed proforma appear to have been filled up by some employee of the Court and the learned magistrate has only put his short signature (initial) above the seal of the Court containing his name. All the details of the case including the name, section, P.S., district, case number and address of the applicant have been filled up by some employee of the Court on the printed proforma. Therefore, this type of the order shows non-application of judicial mind on the part of the learned magistrate passing the same. 19. Similar view has been taken in Jagdish Ram v. State of Rajasthan & Anr., (2004) 4 SCC 432 , The State of Gujarat v. Afroz Mohammed Hasanfatta, AIR 2019 SC 2499 . In Afroz Mohd. (supra) the Supreme Court further observed that in a case based upon the police report, the Magistrate is not required to record any reason at the stage of issuing the summons to the accused. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reason for rejection of the charge-sheet and for not taking on the file. 20. In the case of Saurabh Dewana v. State of U.P., 2010 (2) JIC 3 (All), this Court has held that the cognizance on the printed proforma is not a legal cognizance. 21. In the case of Abdul Rasheed & others v. State of U.P. & another, MANU/UP/3138/2010: 2010 (3) JIC 761 (All), this Court observed that judicial orders cannot be allowed to be passed in a mechanical manner either by filling in blank on a printed proforma or by affixing a ready made seal etc. of the order on a plain paper. This reflects not only lack of application of mind to the facts of the case but is also against the settled judicial norms. Therefore, this practice must be stopped forthwith. 22. of the order on a plain paper. This reflects not only lack of application of mind to the facts of the case but is also against the settled judicial norms. Therefore, this practice must be stopped forthwith. 22. This Court repeatedly directed that the conduct of the judicial officers concerned in passing cognizance/summoning orders on printed proforma by filling up the blanks without an application of judicial mind is objectionable and deserves to be deprecated and set aside the said orders and matters are remanded back to the concerned court to take fresh cognizance. (Vide: Andul Rasheed & Ors. v. State of U.P., 2010 (71) ACC 389, Qavi Ahmad v. State of U.P. & Ors., (14.10.2011-ALLHC): MANU/UP/4806/2011, Naval Dey Bharti v. State of U.P. & Ors., (25.07.2019-ALLHC): MANU/UP/1831/2019, Dushyant Kumar v. State of U.P. & Ors., (24.02.2020-ALLHC): MANU/UP/0431/2020, Ashu Rawat v. State of U.P. & Ors., Application U/s. 482 Cr.P.C. No. 1388 of 2020 decided on 29.9.2020, Ram Kumar Singh & Ors. v. State of U.P. & Ors., (04.11.2020-ALLHC): MANU/UP/1891/2020, Vishnu Kumar Gupta & Ors. v. State of U.P. & Ors., (11.11.2020-ALLHC): MANU/UP/1925/2020, Ali Ashraf Quardri & Ors. v. State of U.P. & Ors., (20.11.2020-ALLHC): MANU/UP/2048/2020, Anuj Gupta v. State of U.P. & Ors., (22.02.2021-ALLHC) : MANU/UP/0204/2021, Babu & Ors. v. State of U.P. & Ors., (22.03.2021-ALLHC): MANU/UP/1394/2021, Rinki Rastogi & Ors. v. State of U.P. & Ors., (05.07.2021-ALLHC): MANU/UP/0840/2021, Surendra Kumar and Ors. v. State of U.P. & Ors., (06.07.2021 -ALLHC) : MANU/UP/0935/2021, Sunil Tyagi v. State of U.P. & Ors., (30.07.2021-ALLHC) : MANU/UP/1059/2021, Dharmraj & Ors. v. State of U.P. & Ors., (30.07.2021-ALLHC): MANU/UP/1054/2021, Pankaj Jaiswal v. State of U.P. & Ors., (9.08.2021-ALLHC): MANU/UP/1079/2021, Rubina Khan v. State of U.P. & Ors., (10.08.2021-ALLHC): MANU/UP/1075/2021, Sanjay v. State of U.P. & Ors., (10.08.2021-ALLHC): MANU/UP/1080/2021, Suresh Babu v. State of U.P. & Ors., (10.08.2021-ALLHC): MANU/UP/1164/2021, Abhay Pratap Singh v. State of U.P. & Ors., (27.08.2021-ALLHC) : MANU/UP/1217/2021, Israil and Ors. v. State of U.P. & Ors., (02.09.2021-ALLHC): MANU/UP/2060/2021, Saleem v. State of U.P. & Ors., (17.09.2021-ALLHC): MANU/UP/1457/2021, Phoolwanti Devi & Ors. v. State of U.P. & Ors., (22.09.2021 -ALLHC) : MANU/UP/1540/2021, Sunil Kumar Singh v. State of U.P. and Ors., (28.09.2021-ALLHC) : MANU/UP/1639/2021, Pramod Kumar & Ors. v. State of U.P. & Ors., (01.10.2021-ALLHC): MANU/UP/1640/2021) 23. v. State of U.P. & Ors., (02.09.2021-ALLHC): MANU/UP/2060/2021, Saleem v. State of U.P. & Ors., (17.09.2021-ALLHC): MANU/UP/1457/2021, Phoolwanti Devi & Ors. v. State of U.P. & Ors., (22.09.2021 -ALLHC) : MANU/UP/1540/2021, Sunil Kumar Singh v. State of U.P. and Ors., (28.09.2021-ALLHC) : MANU/UP/1639/2021, Pramod Kumar & Ors. v. State of U.P. & Ors., (01.10.2021-ALLHC): MANU/UP/1640/2021) 23. It is a position of law that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must take notice of the accusations and apply his mind to the allegations made in the police report. However, a Magistrate is not required to pass a detailed reasoned order at the time of taking cognizance on the charge sheet. But it does not mean that an order of taking cognizance can be passed just by filling up the blanks on a printed proforma. A judicial order cannot be allowed to be passed in a such manner. 24. After considering the facts and keeping in mind the position of law, which have been discussed above, I am satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance. The Magistrate passed the impugned order dated 18.9.2019 in a mechanical manner on a printed proforma without applying the judicial mind. Therefore, the impugned order is liable to be set aside. The matter is remitted to the Chief Judicial Magistrate to pass fresh cognizance order in accordance with law after applying judicial mind within two weeks after the production of the certified copy of the judgment. 25. Before parting with the judgment, I am of the view that considering the nature of the issue which arose in the instant case, it would be just and appropriate to direct all the District Judges, and Chief Judicial Magistrates/Chief Metropolitan Magistrates to ensure that the Judicial Magistrates/Judge shall not pass the cognizance order on printed proforma while taking cognizance under Section 190 of the Code. 26. A copy of the instant judgment shall be transmitted by the Registry of this Court to all the District Judges within one week for circulation to all the judicial officers. The office is further directed to enter the judgment in compliance Register maintained for the purpose of the Court. 27. With the aforesaid observations, the present application U/S 482, Cr.P.C. stands disposed off.