Allahabad High Court
Niraj @ Banti Shahi And 3 Others vs State Of Upand Another on 7 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:78003 A.F.R. Reserved Court No. - 76 Case :- APPLICATION U/S 482 No. - 16456 of 2024 Applicant :- Niraj @ Banti Shahi And 3 Others Opposite Party :- State Of Upand Another Counsel for Applicant :- D.M.Tripathi, Nagendra Pratap Singh,Vimlendu Tripathi Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 24855 of 2024 Applicant :- Sandeep Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Kumar Mishra Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 31908 of 2024 Applicant :- Bhola Nath Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Om Prakash Vishwakarma,Ram Babu Yadav Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 33243 of 2024 Applicant :- Fariyad Kauwal @ Fariyad Husain Opposite Party :- State of U.P. and Another Counsel for Applicant :- Karunesh Narayan Tripathi Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 33769 of 2024 Applicant :- Alka Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kumar Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 33903 of 2024 Applicant :- Kanahiya Lal And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajeet Kumar Singh Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 21753 of 2024 Applicant :- Atar Singh @ Avaru Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Prem Chand Saroj Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 22128 of 2024 Applicant :- Ravi Mehra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Giri Ram Rawat,Indra Deo Mishra,Shri Ram (Rawat),Vinesh Kumar Soni Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 24320 of 2024 Applicant :- Mushtaque Ahmad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pratik J. Nagar Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 24426 of 2024 Applicant :- Harvinder @ Pinder And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ankit Srivastava,Laxami Pati Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 24430 of 2024 Applicant :- Smt. Rajni Bhargava Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga,Vikrant Singh Parihar Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 27051 of 2024 Applicant :- Dr Chandresh Upadhyay Opposite Party :- State of U.P. and Another Counsel for Applicant :- Digambar Dwivedi,Maya Pati Pandey Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 27378 of 2024 Applicant :- Hanuman Kushwaha And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mahendra Kumar Maurya,Ramesh Chandra Yadav Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 28759 of 2024 Applicant :- Siyaram And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Swapnil Sinha Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 31376 of 2024 Applicant :- Alok Yadav Alias Alok Kumar Yadav And 8 Others Opposite Party :- State of U.P. and Another AND Case :- APPLICATION U/S 482 No. - 31480 of 2024 Applicant :- Iqbal @ Lala Opposite Party :- State of U.P. and Another Counsel for Applicant :- Azhar Hussain Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 482 No. - 32641 of 2024 Applicant :- Anwar Hussain Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pradeep Saxena Counsel for Opposite Party :- G.A. AND Case :- APPLICATION U/S 528 BNSS No. - 31066 of 2024 Applicant :- Sarvesh Singh @ Arjun Singh Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Jyoti Kumar Singh,Rishi Kant Rai Counsel for Opposite Party :- G.A.,Rishu Mishra Hon'ble Vinod Diwakar,J.
1. Heard learned counsel for the applicants in all the matters, learned A.G.A. for the State-respondent, Shri Vimlendu Tripathi, learned Amicus Curiae and perused the material on record.
2. The judiciary is the bedrock of justice, and its effectiveness depends on adherence to established legal principles. However, a recurring issue plagues the High Court under 482 Cr.P.C. jurisdiction- the trial courts frequently pass summoning orders in contravention of authoritative binding judgments of Constitutional Courts. Despite consistent judgments that clarify the legal framework governing the taking of cognizance, trial courts continue to issue such orders mechanically and arbitrarily, often by inserting case details into pre-drafted or rubber-stamped templates, commonly referred to as “printed-proforma cognizance order”.
3. This issue raises serious concerns about judicial discipline, legal training and judicial accountability. It not only undermines the authority of higher Courts but also leads to unnecessary litigation, wastage of judicial resources, and grave injustice to the litigants.
4. This is a standard practice of the Bar that after filing of the charge sheet, the moment learned Magistrate or the Special Judge, as the case may be, takes the cognizance of the offence on the charge sheet and direct the accused to appear before the court invariably without waiting to reach to stage of Section 207 Cr.P.C., the accused approaches this Court to set- aside the summoning orders based on the argument that the cognizance has taken by the learned Judge mechanically without application of judicial mind on a printed proforma or rubber- stamped format by inserting the name of the accused and corresponding section of code by hand without assigning any reason, and simultaneously prays to quash the charge – sheet.
5. The charge sheets are challenged without reaching the stage of Section 207 Cr.P.C., thereby the accused are oblivious of the fact as to what inculpatory material has been collected by the investigating officer, during the investigation, against them. The reliance are placed on FIR, bail order or, and a direction issued by this Court under Article 226 of the Constitution of India for not taking any coercive action against the accused either till the filing of the charge sheet or rarely, till the completion of the trial along with a report under Section 173 Cr.P.C. containing only name of the accused and section under which the police has filed the charge sheet, along with the list of witnesses.
6. In essence, significantly in large number of cases-baring few cases-invariably two sets of repetitive arguments are undertaken by the learned counsels; (i) the cognizance order has been passed in a mechanically manner without assigning any ground on a printed and rubber stamp proforma, and (ii) outrightly, makes a prayer for “no coercive action” means the applicant(s) may not be arrested during trial and places reliance upon the case of Satendra Kumar Antil v. Central Bureau of Investigation and Another1 and further seeks disposal with the liberty to file a discharge application before the trial court. These applicants have been invariably decided by the Courts in a routine manner by directing that no coercive action be taken against the applicant until the filing or disposal of a discharge application before the trial court, and dispose of the matter with a liberty to approach the trial court for discharge.
6.1 It serves no purpose. The accused already possesses a statutory right to file a discharge application before the trial court; and therefore there is no requirement to approach the High Court for such relief. As far as the relief of “no coercive action,” is concerned, it is not recognized in criminal jurisprudence at the stage of quashing the cognizance order. Furthermore, there is no mandatory obligation upon litigants to approach this Court merely to safeguard rights already delineated in Satendra Kumar Antil (supra). In the considered view of this Court, the entire exercise is futile and imposes an unnecessary burden upon ill-informed litigants.
7. Based on the limited arguments, discussed herein above, the applicants have approached this Court under Section 482 Cr.P.C. for quashing of the criminal proceedings of Criminal Case No.5293 of 2018 pending trial in the Court of learned Civil Judge (Junior Division), Deoria. For the purpose of deciding the core issue- common in all applications- the Application U/s 482 Cr.P.C. No. 16456 of 2024 has been taken as lead case.
8. To address the issue, Shri Vimlendu Tripathi, learned counsel, has been appointed Amicus Curiae in a bunch of matters dealing with the issue.
9. Learned Amicus Curiae, provided a compilation of judgments along with a copy of the written argument to assist the Court and the same has been taken on record.
10. After hearing learned Amicus Curiae and on examination of compilation, it is observed that this Court in series of cases i.e. Awadh Kumar & Ors. v. State of U.P. & Ors2; Kanti Devi and others v. State of U.P. and another3; Himanshu Kumar and others v. State of U.P. and another4; Rupesh and others v. State of U.P. and another5, Hemant Kumar v. State of U.P. and another6; Rajnath Yadav v. State of U.P. and another7; Radhe Shyam v. State of U.P. Thru. Addl. Chief Secy. Home Lko and Anr8; Basant Singh v. State of U.P. and Another9; Ram Kewal v. State of U.P. and Another10; Hamid Raza v. State of U.P. and Another11; Prabhakant and Another v. State of U.P. and Another12; Satya Pal v. State of U.P. and Another13; Mateen Ahmad v. State of U.P. Thru. The Prin. Secy. Home Deptt Lko. and Another14; Ved Krishna v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko. And Another 15; Krishna Kumar v. State of U.P. Thru. Prin. Secy. Home and others16; Pramod Kumar Shahi alias Mantu Shahi v. State of U.P. and another17; Sangam Lal v. State of U.P.18; Sanjay Jain and Another v. State of U.P. and Another19; Gulab Singh and others v. State of U.P. and Another20; Jai Prakash Verma and Another v. State of U.P. and Another21; Dharmraj and others v. State of U.P. and Another22; Surendra Kumar and others v. State of U.P. and Another23; Chhabiley and others v. State of U.P. and Another24; Vishnu Kumar Gupta and Another v. State of U.P. and Another25; Sudesh Bhadauria v. State of U.P. and others26; Deepak Jha v. State of U.P. and Another27; Avdhesh v. State of U.P and Another28; Mainuddin and others v. State of U.P. and Another29; Robin L. Prasad v. State of U.P. and Another30; Qavi Ahmad v. State of U.P. and Another31, set-aside the summoning orders and remanded the cases back to the trial court to pass afresh speaking order in accordance with law primarily relying upon Supreme Court’s judgment in Lalankumar Singh v. State of Maharashtra32; Sunil Bharti Mittal v. C.B.I.33; Bhushan Kumar v. State (NCT of Delhi)34; Darshan Singh Ram Kishan v. State of Maharashtra35 and various judgments passed by the coordinate Bench of this Court.
11. In Anil Katiyar and another v. State of U.P.36; Upasana Singh and Another v. State of U.P. and another37; Dhanwan Singh and others v. State of U.P. and Another38; Pawan Kumar v. State of U.P. and others39; Sanjay and others v. State of U.P. and Another40; Techno Fabs (Proprietor Ship Firm) v. State of U.P. and Another41; Abdul Rasheed v. State of U.P.42; Saurabh Dewana v. State of U.P.43; Ankit v. Sate of U.P. and Another44, the application under Section 482 Cr.P.C. has been allowed by the Court, and the impugned summoning order has been set-aside with the direction to place the copy of the order before the Registrar General to issue a circular/memorandum in accordance with law to all the District Judges of Uttar Pradesh intimating them to inform all the judicial officers not to use “printed proforma” while passing judicial orders. More or less similar directions have been issued in all the cases, referred hereinabove.
11.1 In Saurabh Dewana case (supra), this Court has gone one step ahead and directed the learned District Judge to collect blank printed proforma from all the courts and destroy the same. It was also directed to place the copy of order before the Administrative Committee of this Court for consideration and if approved, the necessary circular may be issued.
11.2 In Ankit case (supra), this Court again issued similar directions to the learned District Judge, Saharanpur to seize the blank printed proforma available in the court of learned Judicial Magistrate and destroy the same. Besides, a direction was also issued to the Registrar General to place a copy of the order before the Administrative Committee.
11.3 In Sanjay case (supra), this Court called an explanation from the learned Chief Judicial Magistrate for passing summoning order on printed proforma, and a warning was also issued to the learned Judge to remain vigilant and cautious in future while passing such orders.
12. In Anil Katiyar and others v. State of U.P. through CBCID Lucknow45, the coordinate Bench of this Court by placing reliance upon Basaruddin v. State of U.P.46, Kavi Ahmad v. State of U.P.47, Abdul Rashid v. State of U.P.48 judgments passed by another coordinate Bench of this Court, and Bhushan Kumar v. State (NCT of Delhi)49, Lal Kumar Singh v. State of Maharashtra50, Pepsi Foods Ltd. v. Special Magistrate51, the judgements passed by Supreme Court set-aside the impugned summoning order dated 08.09.2015 by observing that in spite of several orders passed by the Supreme Court as well as this Court, learned Magistrates are still passing orders and taking cognizance on printed proforma without applying judicial mind and in the case at hand, there is nothing on record in the summoning order to suggest that the learned Magistrate perused the material available on record before passing the summoning order and taking cognizance on the charge sheet. The Senior Registrar of this Court at Lucknow Bench was also directed to transmit a copy of the judgment to all the learned District Judges and Chief Judicial Magistrate/Chief Metropolitan Magistrates of all District Courts of Uttar Pradesh for immediate compliance and information.
13. In Bindeswari Prasad Bhardwaj v. State of U.P.52; Atul Kumar Jain and others v. State of U.P. and Another53; Sanjeet Lal v. State of U.P. & Another54, and Munna Lal and others v. State of U.P. and another55, the coordinate Benches of this Court rejected the prayer of the applicants to set-aside the impugned summoning order and quash the charge sheet by placing reliance on Kanti Bhadra Shah v. State of West Bengal56, and U.P. Police and Control Boards v. Mohan Meakins Ltd.57 by recording the finding that it is immaterial that the Magistrate has taken the cognizance on printed proforma or used a typed proforma for summoning the accused. Ultimately, the question would be of an application of mind by the Magistrate. An order written or type written, though not in any particular form or proforma, may still suffer from non-application of mind. The contention regarding non-application of mind has to be examined on the basis of all the relevant aspects. When, the charge sheet discloses sufficient material for proceedings against an accused, it would be difficult to presume “non-application of mind while passing summoning order”, and further held that there is no legal requirement for the trial Court to record reasons for taking cognizance on the charge-sheet and summoning the accused.
14. Considering the foregoing, it is appropriate to briefly discuss the factual context of the present case to arrive at a fair and well-founded determination. A FIR Case Crime No.147, dated 29.5.2016, under Section 147, 323, 504, 506, 447 IPC read with Section 3/4 Prevention of Damage to Public Property Act was registered at P.S. Bhatparrani, District Deoria for encroaching upon government land besides other allegations of threat to life and causing injury against Neeraj Shai, Manoj Sahi, Hemant Sahi and Abhirendra Sahi all sons of Druv Narayan Sahi and Beeru son of Manoj. Upon the conclusion of the investigation, a charge sheet was filed against the applicants by the police, under Sections 323, 504, 506, 447 IPC read with Section 3/4 of the Prevention of Damage to Public Property Act, on 17.06.2006, exonerating suspect Beeru. The cognizance was taken on 07.12.2018 by the learned Magistrate, and accordingly, the applicants were summoned by the trial Court. Aggrieved by the summoning order, the applicants have filed this application to set-aside the impugned summoning order dated 7th December 2018.
15. Against this backdrop, the following questions arise for consideration (i) as to what is meant by the expression “taking cognizance of an offence” by a Magistrate or Special Judge, as the case may be, within the contemplation of Section 190 of the Code?, (ii) by directing issuance of process to the accused in a case of taking cognizance based upon a police report under Section 190(1)(b) Cr.P.C., whether it is mandatory for the Court to record reasons for its satisfaction that there are sufficient grounds for proceeding against the accused?, and (iii) by directing issuance of process to the accused in a case of taking cognizance based upon a complaint under Section 190(1)(a) Cr.P.C., whether it is mandatory for the Court to record reasons for its satisfaction that there are sufficient grounds for proceeding against the accused?
16. Before examining the rival contentions and the judgments discussed herein above, I shall briefly refer to the relevant provisions of the Code. Chapter XIV of the Code, comprising Sections 190 to 199, addresses the statutory conditions required for the initiation of criminal proceedings. Since, admittedly, the controversy concerns the taking cognizance by the learned Magistrate within the meaning of Section 190, I shall confine my discussion to the said provision. Section 190 of the Code includes provisions on how magistrates shall take cognizance of offences. Sub Section 1 of Section 190 of the Code empowers a Magistrate to take cognizance of an offence in the manner laid down therein. It provides that a Magistrate may take a cognizance of an offence either, (a) upon receiving a complaint of facts which constitutes such offence; or (b) upon a police report of such facts; or (c) upon information received from any person other than a police officers, or upon his own knowledge that such offence has been committed58.
17. Chapter XV, containing Sections 200 to 203 Cr.P.C., deals with “Complaints to Magistrates” and lays down the procedure that shall be followed by the Magistrate when taking cognizance of an offence on a complaint. Similarly, Chapter XVI deals with “Commencement of Proceedings before Magistrates”. However, I may note that, upon receipt of a complaint or a police report, the Magistrate has more than one course open to them to determine the procedure and the manner to be adopted for taking cognizance.
18. The first question is as to what is meant by the expression “taking cognisance of an offence” by a Magistrate within the meaning of Section 190 of the Code could be addressed in the light of the outlined discussion. The word”cognizance” is not defined in the Code. The Black’s Laws Dictionary defines cognizance; the range to mental observation or awareness, the fact to being aware, knowledge, (Law) the powers given to a Court to deal with the given matter, jurisdiction, and Lexicon-Webster’s Dictionary defines; jurisdiction, or the exercise of jurisdiction, or power to try and determine causes; judicially examination of a matter, or power and authority to make it.
19. The Calcutta High Court in Emperor v. Sourendra Mohan Chuckerbutty59, Stephen and Carnduff JJ. have taken a view that for 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. The same view was approved by Das Gupta, J., in Legal Remembrancer v. Abani Kumar Banerji60, by holding that what constitutes “taking cognizance” has not been defined in the Code of Criminal Procedure, and I have no desire 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) of the Code of Criminal Procedure, he must not only have applied his mind to the contents of the petition, but he must have done so far the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,-proceeding under Section 200 Cr.P.C., and thereafter sending it for inquiry and report under Section 202 Cr.P.C.
20. In Gopal Marwadi v. Emperor61, it was observed that the word “cognizance” is used in the Code to indicate the point at which the Magistrate or a judge first takes judicial notice of an offence. It is a different thing from the initiation of the proceedings. It is the condition precedent to the initiation of the proceedings by the Magistrate. The court noticed that the word “cognizance” is a word of somewhat indefinite import, and it is perhaps not always used precisely in the same sense.
21. The essential tenet of statutory interpretation of the expression “taking cognisance of an offence” has been enunciated in Emperor v. Sourendra Mohan Chuckerbutty (supra) and Legal Remembrancer v. Abani Kumar Banerji (supra). In Ajeet Kumar Palit v. State of West Bengal62, the Supreme Court observed that the word “cognizance” has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when use with reference to a Court or Judge, to take notice of judicially and by approving the observation of Calcutta High Court in Emperor (supra) has held 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”.
22. Approving the observation of the Calcutta High Court in Emperor (supra), and Legal Remembrancer case (supra), the Supreme Court of India in R.R. Chari v. State of U.P.63, Darshan Singh Ram Kishan v. State of Maharashtra64, Kishun Singh and others v. State of Bihar65, Anil Saran v. State of Bihar66, Chief Enforcement Officer v. Videocon International Ltd.67, has been consistent in holding 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 suspected commission of an offence for the purpose of proceeding to take subsequent steps towards inquiry and trial.
23. Again, approving the observation of the Calcutta High Court in Legal Remembrancer case (supra), the Supreme Court in Fakhruddin Ahmad v. State of Uttaranchal and Another68 D.K. Jain, J. speaking for the Bench, holds that 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 more in which the case is sought to be instituted and nature of preliminary action and further stressed that nevertheless, it is well settled that before a 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 over the information received from a source other than a police report, as the case may be.
24. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and others69, the Supreme Court after in-depth review of prior judicial determinations in Pepsi Foods Ltd (supra), Darshan Singh Ram Kishan (supra), Emperor v. Sourindra Mohan (supra), Nagawwa v. Veeranna Shivalingappa Konjalgi70, Kishun Singh v. State of Bihar71, State of West Bengal v. Mohd. Khalid72, Jagdish Ram v. State of Rajasthan73, Chief Enforcement Officer v. Videocon International Ltd. (supra), U.P. Pollution Control Board v. Bhupendra Kumar Modi 74 held that no formal or speaking order or reasoned orders are required at the stage of section 190/204 Cr.P.C., there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under section 200 Cr.P.C. so as to proceed against the offender. The relevant para is extracted hereinbelow:
“21. Under section 191(1)(b) Cr.P.C. the Magistrate has the advantage of a police report and under section 190(1)(c) Cr.P.C., he has the information or knowledge of a commission of offence. But, under section 190(1)(a) Cr.P.C., he has only a complaint before him. The Code hence specifies that “a complaint of facts which constitute such offences”. Therefore, if the complainant, on the face of it, does not disclose a commission of any offence, the Magistrate shall not take cognizance under section 190(1)(a) Cr.P.C. The complaint is simply to be rejected.”
25. In Pepsi Food Ltd. case (supra), the Supreme Court has taken a view that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be initiated as a matter of course. It is noted that the complainant has to bring only two witnesses to support his allegations with the complaint to have the criminal law set into motion. Therefore, hold that the order of the Magistrate summoning the accused in a complaint case must reflect that he has applied his mind on the facts of the case and the applicable law thereto whereas in Mohammad Ul Rahaman case (supra) it is held that under section 190(1)(b) Cr.P.C. the Magistrate has the advantage of a police report. Therefore, the summoning of an accused based on the police report is entirely on a different footing vis-a-vis the summoning of an accused in a complaint case. The same view has been adopted by the Supreme Court in State of Gujarat v. Afroz Mohammad Hasanfatta (supra) by holding that sufficiency of evidence to hold the accused guilty, the merit of the matter and defence pleas have to be examined at the stage of trial and not at the stage of issuing the process. Further, whether the statement of witnesses is hearsay, whether it is supported by contemporaneous exposition, and whether it falls under “res gestae” are to be determined only at the time of trial, in a police case.
26. In Kanti Bhadra Shah case (supra), the Supreme court held that there is no legal requirement that the trial court should write an order showing the reason for framing a charge, why should already burdened trial court be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. It a Magistrate is to write detailed orders at different stages, the snail-placed progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But, it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stage with the trial.
(Emphases supplied)
27. In U.P. Pollution Control Board v. Mohan Meakins Ltd.75, the position was further clarified that it is not necessary to pass a speaking order at the stage of taking cognizance. In Chief Controller of Imports & Exports v. Roshan Lal Agarwal76, the Supreme Court again tested the legality and impropriety of the cognizance order by considering the situation where the impugned order passed by the Magistrate read as follows:
“8…..Cognizance taken. Register the case. Issue summons to the accused.” (SCC p. 145, para. 9)
and it was held that: “9…..at the stage of issuing the process to the accused, the Magistrate is not required to record reasons.
(Emphasis supplied)
27.1 The Kanti Bhadra Shah (supra), and U.P. Pollution Control Board (supra) were also referred to in the aforesaid decision.
28. In Jagdish Ram v. State of Rajasthan77, the Supreme Court again reiterated that at the stage of issuing process to the accused, the Magistrate is not required to record the reasons. However, he has to be satisfied that there is sufficient ground, and such satisfaction is not whether there is sufficient ground for conviction.
29. Likewise, a three -judge Bench of the Supreme Court in Sunil Bharti Mittal case (supra) has held that cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not dealing with offenders. Therefore, cognizance can be taken even if an offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during the investigation or afterwards.
30. If a person is not named as an accused by the police in the final report submitted, the court would be justified in taking cognizance of the offence and summoning the accused, if it feels that the evidence and material collected during the investigation justify prosecution of the accused78. Even if the person has not been joined as an accused in the charge, he can be summoned at the stage of taking cognizance under section 190 of the Code without waiting for the trial to reach at the stage of section 319 of the Code79.
31. In State of Gujarat v. Afroz Mohammad Hasanfatta80, the order of taking cognizance on the second supplementary charge sheet and issuance of summons to the respondent Afroz Hasanfatta was challenged, which reads as under:
“I take in consideration charge sheet/complaint for the offence of sections 420, 465, 467, 468 IPC etc., summons to be issued against the accused.”
31.1 The Supreme Court in the aforesaid case observed that in so far as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of Criminal Procedure Code and in accordance with rules of investigation. Evidence and materials so collected are lifted at the level of the Investigating Officer, and thereafter, a charge sheet was filed. In appropriate cases, the opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the material placed before it by the police.
31.2 Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to the satisfaction of the Magistrate, considering the police report and other documents, and satisfying himself that there is sufficient ground for proceeding against the accused.
31.3 In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. 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 reasons for rejection of the charge sheet and for not taking it on file.
31.4 Based on the foregoing reasoning, the Supreme Court in the aforementioned case held that cognizance of the offence- taken on the basis of the charge sheet filed by the police under Sections 420, 465, 467, 468, 471, 477A, 120B of the IPC – was valid, and that the order issuing process, though it did not explicitly record the reasons by the Magistrate, did not suffer from any legal infirmity.
32. Dr. D.Y. Chandrachud, J., speaking for the three-Judge Bench of the Supreme Court in Pradeep S. Wodeyar v. State of Karnataka 81 has referred and relied upon Mehmood Ul Rehman (supra) and observed;
“85. Moreover, Kurian Joseph, J. writing for the two-Judge Bench has clearly taken note of the difference between Sections 190(1)(a) and 190(1)(b) : (Mehmood Ul Rehman case [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124] , SCC p. 430, para 21)
“21. Under Section 190(1)(b)CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c)CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a)CrPC, he has only a complaint before him. The Code hence specifies that “a complaint of facts which constitute such offence”. Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a)CrPC. The complaint is simply to be rejected.”
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“91. While distinguishing the decision in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] on the ground that it related to taking of cognizance in a complaint case, the Court in Afroz Mohammed Hasanfatta case [State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 : (2020) 3 SCC (Cri) 876] held since in a case of cognizance based on a police report, the Magistrate has the advantage of perusing the materials, he is not required to record reasons : (Afroz Mohammed Hasanfatta case [State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 : (2020) 3 SCC (Cri) 876] , SCC p. 552, para 23)”
“23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b)CrPC, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. 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 reasons for rejection of the charge-sheet and for not taking it on file.”
(Emphasis supplied)
“92. The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173CrPC and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta [State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539: (2020) 3 SCC (Cri) 876] . The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate an application of mind. In the facts of this case, therefore, the order taking cognizance is not erroneous.”
33. Based on the aforesaid deliberations, the reasons underlying this judicial anomaly may be attributed to the factors outlined hereinafter: (a) absence of an effective and sustained training programmes, and awareness for judicial officers to enhance their judicial quotient, (b) the judges may place reliance upon out dated standard legal procedures followed in courts, (c) the existing training sessions, if any, are often conducted in a per-functionary manner, (d) widespread use of pre-type judicial formats in non-computer era, overwhelming backlog of cases- this pressure fosters a culture where efficiency takes precedence over judicial accuracy, resulting in repeated legal errors, and excessive reliance of trial court judges on court staffs for drafting and issuing a cognizance order, and (e) apathy of some judicial officers towards their duty to ensure justice and absence of personal accountability to leads to a routine and casual approach in passing orders.
34. The judges, due to time constant or sheer dependence on court staff, may at times mechanically sign draft summoning orders without subjecting them to a details judicial scrutiny. This practice leads to cognizance orders that often contravene well-established legal principles, in cognizance orders that contradict well-established legal principles, as clerical staff are neither legally trained nor vested with the authority to undertake judicial reasoning.
35. To address the issue flagged above, judges must be trained through sustained training programmes to review and finalise the orders, ensuring compliance with binding judicial precedence. The Constitutional Courts have been time and again circulating judgments/orders for strict compliance by the subordinate courts but desired compliances are not seen in the orders. The office staff should be provided basic legal training to prevent errors in drafting procedural orders. The trial judges must exercise greater vigilance by critically reviewing all cognizance orders before signing them. The effective supervisory mechanism can ensure compliance with binding rulings and rectify systematic errors.
36. The systematic unchecked flaw lead to serious miscarriage of justice and burdened the Constitutional Courts with unnecessary litigation.
37. Reanalysing binding and persuasive presidents extensively and relying upon prior authoritative decisions, I summarizes the law as;
37.1 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:
37.2 When the Magistrate writes that “(a) on perusal of the charge sheet and documents annexed with the charge sheet, or (b) Cognizance taken. Register the case. Issue summons to the accused”82 is sufficient for the purpose of passing summoning orders. It means the learned Magistrates or the Special Judge, as the case may be, has gone through the entire evidence and has gone through the statement of the witnesses and other inculpating material collected by the police during the investigation, and has taken cognizance of the office by applying judicial mind.
37.3 Mention the exact section of the offence is of least significance, and therefore, has no negative consequences so far as the summoning order is concerned.
37.4 The trial courts are already overburdened and there is no need for further overburdening them by expecting detailed reasoned order at the stage of taking cognizance and issuing process, compliance of section 207 & 209 Cr.P.C., giving direction to the police for registration of the FIR, framing of charge, etc. as any material irregularity will not vitiate the trial, section 260 Cr.P.C. says83.
37.5 Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken the notice of accusation 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 there with. 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 offender84.
37.6 Taking cognizance merely means “becoming aware of and when used with reference to a court or a judge, it connotes to take note judicially”.
37.7 Under section 191(1)(b) Cr.P.C. the Magistrate has the advantage of a police report and under section 190(1)(c) Cr.P.C., he has the information or knowledge of a commission of offence. But, under section 190(1)(a) Cr.P.C., he has only a complaint before him. The Code hence specifies that “a complaint of facts which constitute such offences”. Therefore, if the complainant, on the face of it, does not disclose a commission of any offence, the Magistrate shall not take cognizance under section 190(1)(a) Cr.P.C. The complaint is simply to be rejected85.
37.8 Taking cognizance does not involve any formal action of any kind. It occurs as soon as the Magistrate applies its mind to the suspected commission of an offence86.
37.9 The Code of Criminal Procedure requires a speaking order to be passed under Section 203 Cr.P.C., when the complaint is dismissed that too the reasons need to be stated only briefly.
38. While the contents of a rubber stamp or printed proforma may be in accordance with law, but insertion of the accused’s name and statutory provisions into such pre-printed formats is unwarranted. I must regretfully observe that this practice creates a disturbing impression that the Magistrate has not even perused the case file, let alone applied judicial mind. Accordingly, all the learned Magistrates and Special Judges are hereby directed to stop use of “pre-printed rubber stamps” or “pre-typed proformas” for the purpose of taking cognizance and issuing summoning orders, with immediate effect.
39. The Court acknowledges and deeply appreciates the valuable assistance tendered by Shri Vimlendu Tripathi, learned Amicus Curiae, whose insightful submissions and well-researched arguments have significantly contributed to the just and proper adjudication of the issue raised in the aforesaid applications.
40. The applications warrant no indulgence of this Court, as no material irregularity has been found in the impugned summoning order. Accordingly, the present application, along with all connected applications, stands dismissed in the aforesaid terms, with liberty to the applicants to file fresh applications on merits at the appropriate stage, after compliance with Section 207 Cr.P.C. At that stage, the applicants will have the benefit of access to the entire case diary, enabling them to advance appropriate grounds for seeking quashing of the charge-sheet, if so advised.
41. The Registrar (Compliance) is hereby directed, through the Registrar General of this Court, to transmit a copy of this order forthwith to all the learned District Judges in the State. The District Judges shall, in turn, ensure that a copy of this order is circulated to all Judicial Officers within their respective judgeships. Additionally, a copy of this order shall be sent to the Director, Judicial Training and Research Institute (J.T.R.I.), Lucknow, Uttar Pradesh, for record and future reference.
Order Date:- 7.5.2025
Anil K. Sharma
Justice Vinod Diwakar
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