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2024 DIGILAW 215 (ALL)

Ram Kewal v. State of U. P.

2024-01-19

ARUN KUMAR SINGH DESHWAL

body2024
JUDGMENT : ARUN KUMAR SINGH DESHWAL, J. 1. Learned counsel for the applicant is permitted to correct the prayer clause, during the course of the day. 2. Despite service of notice, no one appears on behalf of opposite party no. 2. 3. Heard learned counsel for the applicant and Sri Arvind Kumar Tripathi, learned AGA for the State. 4. The present 482 Cr.P.C. application has been filed to quash the charge-sheet no. 05/2016 arising out of Case Crime No. 373/15, under Sections-419, 420 IPC, Police Station Kotwali Colonelganj, District Gonda, as well as summoning order dated 01.03.2016 passed by Chief Judicial Magistrate, Gonda. 5. Contention of learned counsel for the applicant is that the impugned cognizance order on the impugned charge-sheet was illegal as same was absolutely passed without application of mind being filled up printed proforma and signing the same. In support of his submission, learned counsel for the applicant has relied upon the judgment of coordinate Bench of this Court dated 04.01.2023 passed in Application u/s 482 No. 9892 of 2022. 6. Per contra, learned AGA has opposed the prayer but could not dispute the aforesaid fact that the cognizance order is nothing but simply filling up the printed proforma and thereafter, signing by the concerned Magistrate. 7. After hearing the parties and on perusal of record, it is explicit from the perusal of cognizance order dated 01.03.2016 that the same was nothing but simply filling up the printed proforma and signing the same which itself shows that there is complete non-application of mind on the part of Chief Judicial Magistrate, Gonda. 8. The Hon'ble Supreme Court in the case of Lalankumar Singh vs. State of Maharashtra, 2022 SCC Online SC 1383 has observed in paragraph no. 38 that order of issue of process is not an empty formality. Learned Magistrate is required to apply his mind as to whether the sufficient ground for proceeding exists in the case or not. Paragraph no. 38 of the aforesaid judgment is quoted as below: “38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. Paragraph no. 38 of the aforesaid judgment is quoted as below: “38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima-facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, which reads thus: 51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima case has been made out, the Magistrate ought to issue process and it cannot refused merely because he thinks that it is unlikely to result in a conviction. 53. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima-facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.” 9. The coordinate Bench of this court again considered the issue in the case of Surendra Kumar and Others vs. State of U.P. and Another, 2021 (7) ADJ 61 as well as in the case of Dhanesh Kumar @ Dhanesh Kumar Mishra vs. State of U.P. and Another in Application u/s 482 No. 9892 of 2022 dated 04.01.2023 in which taking of cognizance on printed proforma was deprecated and held the same as non-application of mind. This issue was again considered by this court in the case of Amit Kumar Dwivedi and Another vs. State of U.P. and Another in Application u/s 482 No. 35443 of 2023 vide order dated 05.10.2023. In that case, the court after relying upon the judgment of the Hon'ble Supreme Court as well as several other coordinate benches of this court clearly observed that merely signing and filling up the date and case crime number in the printed proforma is absolutely non-application of mind and also directed to all the Judicial Magistrates/concerned courts in State of U.P. not to pass cognizance order simply filling up the printed proforma and copy of this order was also circulated by the High Court to all the District Judges in State of U.P. Paragraph Nos. 9, 12 and 13 of the aforesaid judgment are being quoted as under: “9. In view of above legal position, this Court is of the view that merely signing and filling up the date and case crime number in printed proforma is absolutely non-application of mind because the cognizance order must reflect the prima-facie opinion of the learned Magistrate on the material collected during investigation. In view of above legal position, this Court is of the view that merely signing and filling up the date and case crime number in printed proforma is absolutely non-application of mind because the cognizance order must reflect the prima-facie opinion of the learned Magistrate on the material collected during investigation. Order of issuance of process is not an empty formality, it may affect the personal liberty of a person. Article 21 of Constitution of India guarantees personal liberty of a person and same cannot be deprived of, without due procedure of law. Apart from this, summoning of accused to appear before criminal court after taking cognizance is a serious matter, affecting the dignity, self-respect and image in society. Therefore, proper process by the criminal court must be followed at the time of taking cognizance and summoning the accused.” 12. This Court further directs to all the Magistrates/concerned courts, while taking cognizance on the charge-sheet, the Magistrate/concerned court must mention the fact that which document he has perused and on perusal of those documents prima-facie case for taking cognizance is made out on the basis of above material with short reasoning for making out prima-facie case. 13. Registrar (Compliance) is directed to circulate the copy of this order to all District Judges for perusal and further circulation.” 10. From the above mentioned legal position, it is clear that merely filling up printed proforma and then signing the same will not be a cognizance at all because this is completely non-application of mind on the part of the concerned Magistrate for taking cognizance. Learned Magistrate has to apply his mind on the material available before him which should be reflected from his cognizance order, itself. 11. In view of the above, impugned cognizance order dated 01.03.2016 passed by the Chief Judicial Magistrate, Gonda is hereby quashed and he is at liberty to pass a fresh cognizance order in light of the observations made above, within a period of one month. 12. With the aforesaid observations, the present application is allowed.