Allahabad High Court: In an application filed under Section 482 of the Code of Criminal Procedure (‘CrPC’) for quashing the entire criminal proceedings for the offences under Section 363, 366 of the Penal Code (‘IPC’) and Sections 16 and 17 of Protection of Children from Sexual Offences Act, 2012, (‘POCSO’) , Shamim Ahmed, J. held that it is explicitly clear that the order passed by the Magistrate is cryptic and does not stand the test of the law laid down by the Supreme Court. Consequently, the cognizance/summoning order cannot be legally sustained, as the Magistrate failed to exercise the jurisdiction vested in him resulting in miscarriage of justice. Further, remitted back the matter to the Magistrate and directed him to decide afresh the issue for taking cognizance and summoning the applicants and pass appropriate orders in accordance with law.
In the case at hand, the complainant went to drop off his daughter to her school and after the end of school hours, the complainant found out that his daughter did not attend the school that day, as the accused manipulated her to run away with him.
The issue in this case was whether the Magistrate may summon the accused on a printed proforma without assigning any reason and take cognizance on police report filed under Sections 173 of CrPC?
The Court said that cognizance can be taken only when the conditions requisite for initiation of proceedings before it as set out in Chapter XIV CrPC are fulfilled. Otherwise, the Court does not obtain jurisdiction to try the offences under section 190(1) CrPC provided that subject to the provisions of this Chapter, any Magistrate (I class), and any Magistrate (II 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 information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
The Court, after examining the law pertaining to summoning of the accused, by taking cognizance on a police report filed under Section 173 CrPC, said that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since, it is a process of taking judicial notice of certain facts which constitute an offence, there has to be an application of mind as to whether the material collected by the Investigating Officer results in sufficient grounds to proceed further and would constitute violation of law to call a person, to appear before the Criminal Court to face trial. This discretion puts a responsibility on the Magistrate to act judiciously, keeping in view the facts of the particular case, as well as the law on the subject and the orders of Magistrate should not suffer from non-application of judicial mind while taking cognizance of the offence.
The Court took note of Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424 , wherein the Court observed that Section 204 CrPC does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued.
Further, it relied on Qavi Ahmad v. State of U.P., 2011 SCC OnLine All 1658, wherein order taking cognizance of offence by the Magistrate under Section 190(1)(b) on printed proforma without applying his judicial mind towards the material collected by the Investigating Officer has been held illegal.
It also took note of Abdul Rasheed v. State of U.P., 2010 SCC OnLine All 2819 wherein it was said 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 readymade seal etc. of the order on a plain paper. Such a tendency must be deprecated and cannot be allowed to perpetuate. 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”.
The Court observed that the conduct of the judicial officers concerned in passing orders on printed proforma by filling up the blanks without application of judicial mind is objectionable and deserves to be deprecated. The summoning of an accused in a criminal case is a serious matter and the order must reflect that the Magistrate has applied his mind to the facts as well as law applicable. Thus, it held that the Magistrate was passed the impugned summoning order in mechanical manner without application of judicial mind and without satisfying himself as to which offence were prima-facie being made out against the applicants based on the allegations made by the complainant. The impugned cognizance order passed by the Magistrate is against the settled judicial norms.
[Krishna Kumar v. State of UP, 2023 SCC OnLine All 38, decided on 24-01-2023]
Order by: Justice Shamim Ahmed
*Apoorva Goel, Editorial Assistant has reported this brief.