Allahabad High Court
Brijbhushan Tiwari vs State Of U.P. And Another on 13 June, 2025
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:96652 Court No. - 49 Case :- APPLICATION U/S 528 BNSS No. - 18689 of 2025 Applicant :- Brijbhushan Tiwari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ravindra Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Neeraj Tiwari,J.
1. Heard learned counsel for the applicants and learned A.G.A. for the State.
2. The present 528 BNSS application has been filed to quash the charge sheet dated 16.01.2015 and cognizance order dated 24.12.2015 and NBW dated 17.04.2025 passed in Case No. 5462 of 2015(State Vs. Bhrijbhoshan Tiwari), arising out of case crime No. 24 of 2015 under section 406, 323, 504, 506 I.P.C., Police Station Kotwali, District Azamgarh, pending in the court of Chief Judicial Magistrate, Azamgarh.
3. Learned counsel for the applicant submitted that impugned cognizance order on the impugned charge sheet has been passed on the printed proforma and suffers from non application of mind, therefore, in light of order of Apex Court in the matter of Lalankumar Singh vs State of Maharashtra; 2022 SCC OnLine SC 1383 the same is bad and liable to be set aside.
4. 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.
5. After hearing the parties and on perusal of record, it is explicit from the perusal of cognizance order dated 24.12.2015 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, Azamgarh.
6. The Hon’ble Supreme Court in the case of Lalankumar Singh(Supra) 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 judgement 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 judgement of this court in the case of Sunil Bharti Mittal v. 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. 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.”
7. The coordinate Bench of this court again considered the issue in the case of Surendra Kumar & others Vs. State of U.P. & Another reported in 2021 (7) ADJ 61 as well as in the case of Dhanesh Kumar @ Dhanesh Kumar Mishra Vs.State Of U.P. Thru. Prin. Secy. (Home) Lko. And Another passed 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 passed in Application u/s 482 No. 35443 of 2023; vide order dated 05.10.2023. In that case, the court after relying upon the judgement 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 judgement 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. 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.”
8. 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.
9. In view of the above, impugned cognizance order dated 24.12.2015 and NBW dated 17.04.2025 passed by the Chief Judicial Magistrate, Azamgarh 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.
10. With the aforesaid observations, the present application is allowed.
Order Date :- 13.6.2025
ADY