Research › Search › Judgment

Uttarakhand High Court · body

2022 DIGILAW 358 (UTT)

Yogesh Saggar v. State of Uttarakhand

2022-10-21

SHARAD KUMAR SHARMA

body2022
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. The present C482 Application has been preferred by the applicants, as against the impugned order dated 16th September 2022, which was passed by the Court of 3rd Judicial Magistrate, Haridwar, in Complaint Case No. 2411 of 2022, Poonam Sharma Saggar vs. Anuj Saggar and Others, whereby it is alleged by the counsel for the applicant that applicant No. 1, he has been summoned by the impugned order for being tried for the offences under Sections 498A, 354A of IPC and Section 3/4 of the Dowry Prohibition Act, whereas on the other hand, the applicant No. 2 has been summoned to be tried for the offences under Section 498A, 406, 324 504 and 506 of IPC, as well as Section 3/4 of the Dowry Prohibition Act. 2. The limited question, which has to be answered as argued, by this Court is, that as to whether the challenge which has been given to the impugned order dated 16th September 2022 is the “cognizance” order or the “summoning” order? Because, this Court, at this stage, is not called upon to appreciate the factual arguments, which has been extended by the learned counsel for the applicants, justifying his challenge given to cognizance order dated 16th September 2022, is as if it’s a summoning order on the various grounds, that the institution of the complaint case as it happens to be as a consequence of a counterblast to the initiation of the proceedings under Section 13(1)(ia) of the Hindu Marriage Act, which was got registered by the husband of respondent No. 2 herein, as Case No. 540 of 2019, Anuj Saggar vs. Smt. Poonam Sharma, as it was filed on 22.10.2019. 3. In order to answer the aforesaid limited question, the relevant part of the cognizance order is extracted hereunder: ^^vkns'k vfHk;qDrx.k vuqt lXxj ,oa lquhrk lXxj dks varxZr /kkjk 498,] 406] 323] 504] 506 HkkŒnaŒlŒ o /kkjk 3@4 ngst Áfr"ks/k vf/kfu;e ds varxZr rFkk vfHk;qDr ;ksxs'k lXxj dks 498, 354, HkkŒnaŒlaŒ o /kkjk 3@4 Áfr"ks/k vf/kfu;e ds varxZr ds vijk/k ds fopkj.k gsrq vkgwr fd;k tkrk gSA ifjokfnuh dh vksj ls lwph xokgku nkf[ky djus ds mijkar mijksDr vfHk;qDrx.k ds fo:) leu tkjh fd;s tk,A ifjokfnuh vko';d iSjoh vanj lIrkg lqfuf'pr djsA i=koyh okLrs mifLFkfr vfHk;qDrx.k fnukad 10-10-2022 dks is'k gksA** 4. The learned counsel for the applicants submits, that where and when the Court has used the words, that the applicants are being summoned, for determination of the charges, in fact, it is interpreted by him that it is a summoning. But for the reason being, that the impugned judgment dated 16th September 2022, has been followed by the subsequent words, which provide that the complainant had been thereby also directed to supply the list of witnesses, on which she wants to rely and it has been observed that it's only thereafter submission of the list of witnesses, the accused persons would be summoned, which is very clear in its term, by the words used, which has been extracted hereinabove. That summons for calling of the accused will only be issued, after supply of the list of witnesses by the complainant. 5. In fact, the learned counsel for the applicants, is reading the impugned judgment dated 16th September 2022, as if it is the “summoning order.” This will not be justified, for the reason being, that after conclusion of the said direction, of directing the complainant to supply the list of witnesses, on which she wants to place reliance, it has been even subsequently directed by the Court of 3rd Chief Judicial Magistrate, that the complainant would take appropriate steps and here, the appropriate steps would be in relation to supplying the list of witnesses, on which she wants to place reliance in support of the complaint it was thereafter that the order provided to take action for summoning the accused. 6. In fact, it is only after complying of the aforesaid conditions by the complainant, then only the summoning order would be issued. The impugned “cognizance order” dated 16th September 2022, has been wrongly interpreted by the applicants, as to be the “summoning order” hence, this Court is not inclined to interfere in the present C482 Application, because the cognizance order is only an order, which is for the purposes of satisfaction of the Court, to be satisfied as to whether under the given set of circumstances of a case, the case is, at all required to be proceeded with for trial necessitating summoning of the witnesses. 7. 7. In order to answer the arguments extended by the learned counsel for the applicants, and the literal definition of the two words i.e. “cognizance” and “summoning” they are required to be considered in its true sense, which may have its legal implications. In accordance with the Oxford English Dictionary, the word “cognizance” has been defined as to be a formal knowledge or awareness, where the Courts by an action of taking practical notice with regard to an act complained of takes an action or draws a conclusion to take an action with regards to drawing of a criminal proceedings for the complaint, which has been placed before it for its consideration. The definition of “cognizance” as provided in the aforesaid dictionary, is extracted hereunder: “cognizance or cognisance - ko(g)niz(a)ns/no. 1 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 - DERIVATIVES Cognizant adj. cognize or cognise v - ORIGIN ME conisance, from OFr. conoisance, based on L. cognoscere get to know.” 8. But this Court cannot be oblivious of the fact, that the same dictionary separately defines the word “summons” which has been distinctly dealt with as to be an act of Courts of authoritatively calling upon and summon a person to be present specifically to appear before a Court of law, that means calling upon a person to attend the proceedings of the Court after taking of the cognizance. As a consequence thereto, when cognizance happens to be a determination of mind by the Court, justifying or necessitating to summon a person after arriving at a conclusion as to whether at all a trial is to be conducted or not? It's then only when the Court draws a conclusion that the parties are called upon by an Authority vested by the Court, to participate in the proceedings of which the prior cognizance have been taken and it is at that stage where the summons are required to be issued it is a distinct order directing an individual to appear before a Court of law and the act of summoning serves with an intention of knowledge to the person to be tried for an offence to participate in the proceedings before the Court. Hence, literally true in accordance with the definition given under the dictionary, it happens to be a different meaning with altogether a different purpose and intention. 9. Further, in Law Lexicon, as it has been published by Justice Y.V. Chandrachud, the cognizability of an offence has been defined as to be i.e. a capability of being known or recognized, especially capable of being identified, as an individual against whom the action is required to be taken. The interpretation given by the said edition of Law Lexicon by Justice Y.V. Chandrachud, the cognizance has been referred to as a judicial notice or knowledge. The judicial recognition or hearing of a cause, of which the Court draws the conclusion, as to what would be the larger import of exercising all the powers an authority with the Court, and the word cognizance is used in the sense of the right to take notice and determine a formal action or intended action to be taken by the Court on judicial side, but occurs as soon as the Magistrate applies its meaningful mind on the suspected commission of offence to take cognizance, it applies a conscious violation on part of the Magistrate and the fact, that the Magistrate passes an order calling upon a person to appear before the Court it draws a conclusion, that a person is required to be tried for the offences, which have been complained of. 10. That is why the Hon’ble Apex Court, in a judgment reported in State of West Bengal and Another vs. Mohammed Khalid and Others, AIR 1995 (1) SC 785 has dealt with as to what would the word ‘cognizance’ mean. It indicates the point when a Magistrate or a Judge first take judicial notice of an offence, hence it cannot be read as to be in parlance to the summons, which is the next step to be followed by the Court. 11. Similar view was expressed by the Hon’ble Apex Court, in a judgment reported in State of H.P. vs. M.P. Gupta, 2004 (2) SCC 349 where cognizance means jurisdiction or the exercise of jurisdiction of power to try and determine a cause. In common parlance, it means taking notice of an act complained of. 12. 11. Similar view was expressed by the Hon’ble Apex Court, in a judgment reported in State of H.P. vs. M.P. Gupta, 2004 (2) SCC 349 where cognizance means jurisdiction or the exercise of jurisdiction of power to try and determine a cause. In common parlance, it means taking notice of an act complained of. 12. According to Section 40 of the Indian Evidence Act, it means that it's a legal right to deal with the matter, the jurisdiction and hearing to try a cause and hence by virtue of a judgment reported in 2004 SLT 14, in Para 7 of the said judgment, the Court has defined the word ‘cognizance’ as to means a ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine the cause’ and the said definition has been extracted from the Black’s Law Dictionary, as referred to in the aforesaid matter. The matters, in which the Court takes a judicial cognizance requires no proof, although they are not formally admitted, but they include the matters of law and of fact, which is to be appreciated on judicial side and tried for which the cognizance have been taken. 13. His lordship, while dealing with the definition of summons, it has altogether dealt with under a different prospective and particularly, in the light of the definition given therein, the “summons” had been provided under Law Lexicon, as to be a process issued from the office of the Court of justice, requiring the person whom it is addressed to attend the proceedings of the Court for the purposes stated therein. The expression given for summons for an offence, it means that it is an authoritative call, to an individual by the Court of law to attend proceedings at a specific place for specific purpose for being tried for the offences for which the cognizance have been taken by the Court to necessitate a person to be tried for the set of allegations, which have been levelled against him. 14. Summons rather is an instrument issued by the Court having jurisdiction on an action directing to take the ministerial act of commanding him to execute the same so that the person against whom the action is to be taken, its knowledge or the order fixing the date for his appearance to be tried. 14. Summons rather is an instrument issued by the Court having jurisdiction on an action directing to take the ministerial act of commanding him to execute the same so that the person against whom the action is to be taken, its knowledge or the order fixing the date for his appearance to be tried. Ordinarily, the meanings of word ‘summons’ it means to demand the presence or to call upon a person to appear. In legal parlance a summons is an intimation requiring a person to whom it is issued to appear to give evidence or produced some document; it is not an order in the same sense, that it indicates any question or communication or decision taken. It merely intimates the person concerned that he is required to appear before the named authority for giving evidence and to produce a document. Normally, issuance of summons, follow an order for such issuance by the authority concerned and the order is not as a consequence of any determination of any question and issue nor it is in execution of any such determination. 15. Thus, in its simplicitor meaning, the word summons are quite distinct to that of the term ‘cognizance’ as it has been referred to by the learned counsel for the applicants during the course of his argument while interpreting that summons herein too would mean an individual act, which will be equivalent to the term cognizance, which is a misnormer in accordance with the provisions of the Code of Criminal Procedure. 16. In that eventuality, let us deal with as to in what manner, the Code of Criminal Procedure itself has dealt with the distinction to be drawn with regard to the cognizability of an offence. Section 2(c) of the Code of Criminal Procedure defines cognizable offences. The relevant definition is extracted hereunder: “(c) “cognizable offence” means an offence for which, and” cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.” 17. It means an offence for which the cognizable cases means the case in which the police officer may, in accordance with the First Schedule of offences, may call for a decision to be taken by the Court as to whether the act is at all required to be tried before by the Court or not. It means an offence for which the cognizable cases means the case in which the police officer may, in accordance with the First Schedule of offences, may call for a decision to be taken by the Court as to whether the act is at all required to be tried before by the Court or not. 18. As far as summoning of an individual is concerned, this has to be dealt with in the context of Chapter 13 of the Code of Criminal Procedure and particularly, in context of the provisions contained under Section 193 of the Cr.P.C. which in accordance with its simplicitor interpretation, the cognizance of an offence by the Court of sessions, the relevant definition which is extracted hereunder, it provides that it is an expression provided by the Court or under any of the law for the time being in-force for determination, to be made by the Court having a jurisdiction over a matter as to whether at all the issue attempted to be tried is triable by the Magistrate concerned or not: “193. Cognizance of offences by Courts of Session - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.” 19. That is why in case if the definition under Section 193 is elaborated to be dealt with by its harmonious construction to be read with in accordance with the provisions contained under Section 198A of the Code of Criminal Procedure, in fact, it too deals with the prosecution of the offences under Section 198 of the Indian Penal Code, which rather restricts that no Court should take cognizance of an offence punishable under the aforesaid provisions of the Code of Criminal Procedure. 20. The cognizance of offence it rather makes the responsibility of the Court, to apply its mind for the determination, as to whether the issue raised in the FIR is to be tried or not? 20. The cognizance of offence it rather makes the responsibility of the Court, to apply its mind for the determination, as to whether the issue raised in the FIR is to be tried or not? In that eventuality, this Court is of the opinion that for the reasons given above, the cognizance cannot be given the same definition as that of summoning because according to opinion of this Court, the cognizance is only an application of mind by the Court to necessitate a trial and its only after arriving on the said conclusion based on material, that a person is required to be summoned for being tried. Hence, summoning is only when there is a prior determination by the Court for trying an individual for the offence which is complained of. Thus, this distinction and particularly, in relation to the order impugned in the C482 Application, if the same is read in its totality, it will be a cognizance order only, which has been tried to be read by the learned counsel for the applicants that it is a summoning order, because in that eventuality the Court has derived a conclusion as to whether at all a person has to be tried and it is only on that determination the summoning order was to be issued at a subsequent stage as it has been observed in the impugned order itself. Hence, the logic which has been assigned by the learned counsel for the applicants is not acceptable by this Court, hence the same is denied to be accepted. 21. The cognizance order, once it records that its only on satisfaction after dealing with the material placed before it by the complainant, the cause of action for the purposes of the applicants to agitate a cause before a Superior Court would be, only when the summoning order is independently issued, which would be, in the instant case, only after the complainant supplies the list of the witnesses and thereafter the summoning order has to be issued. 22. 22. Hence, the interpretation given by the learned counsel for the applicants to the impugned order is not acceptable by this Court; the C482 Application, as against the cognizance order dated 16th September 2022, since is based upon an appropriate consideration of the material which was placed before the Court to justify, to take cognizance of the proceedings, as to whether at all it is required to be drawn or not, is absolutely justified and hence, for the aforesaid reasons, the present C482 Application is, hereby, rejected, without prejudice to the rights of the applicants, to challenge the “summoning order” which is to be issued, after compliance of the conditions by the complainant, as given in the order dated 16th September 2022.