Annappa vs Indirabai

K.N. Phaneendra, J.—Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for respondent No. 2 and the notice to be issued to respondent No. 1 is dispensed with.

There are two technical grounds raised before this Court with regard to the procedure adopted and followed by the learned Senior Civil Judge and JMFC, Indi, in C.C. No.464/2014. It is contended that Indi police have submitted a charge sheet against accused Nos. 1, 6, 7, 9 and 10 for the offences punishable under Sections 143, 147, 323, 324, 504, 506 r/w Section 149 of IPC. The office has put up the said note and the learned Magistrate has passed the order in the following manner:

"Perused the charge sheet papers and FIR and Complaint. There are sufficient grounds to take cognizance against the accused. Hence, cognizance against the accused is taken. Register the case in Register No. III(Cril).

Call on 22/09."

On 22.09.2014, the Court has passed an order to issue summons to accused Nos. 1 to 5 and ordered to post the case on 02.12.2014 for the appearance of the accused.

The above said order is challenged by the accused on the ground that the learned Magistrate has very mechanically passed the order of taking cognizance against the accused and not against the offences alleged by the police. There is no mention for which of the offences cognizance was taken and process was issued.

The learned counsel strenuously contends that the learned Magistrate has mechanically passed the order, it is a computerized format and the blanks have been filled up with regard to the offences. The learned Magistrate has issued process against the accused without referring to which of the offences they have to answer before the Court. The learned counsel relied upon a decision of this Court reported in Vijaya Bank, M.G. Road, Bangalore and Another Vs. State, in the case of Vijaya Bank, M.G. Road, Bangalore and another v. State by Labour Enforcement Officer (Central), Bangalore, wherein this Court relying upon the decision of the Apex Court in the case of A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, has observed that:

"In the cases where the Magistrate mechanically signs a filled up form, it may be difficult to arrive at a conclusion that the process of "taking of cognizance" has actually been complied with." 6. Though the Magistrate has stated that he has perused the charge sheet and taken cognizance, but in this case it is not mentioned for what offences cognizance is taken. There is no question of taking cognizance against the accused persons.

In another decision in Criminal Petition No. 2923/2011 dated 27.08.2013, this Court has observed that taking cognizance of an offence and registering a criminal case against a citizen is an important judicial function of a Magistrate, which has got the effect of encroaching upon the liberty of a citizen. Such action on behalf of a Magistrate should be preceded by a clear application of mind to the facts of the case and a decision has to be taken as to the provisions of law for which the citizen is sought to be summoned to appear in a criminal case. It cannot be a mechanical work like that of a clerk or a CMO of the Court. Having observed the same, the Court has quashed the proceedings and remitted the matter to the Magistrate for following up of the procedure in accordance with law.

The above said two rulings are applicable to the facts of the case. As I have noted, the learned Magistrate has not mentioned for which of the offences cognizance was taken against which of the persons. Therefore, registering of a case and issuance of summons without application of mind is not sustainable in law. Hence, the impugned order is liable to be quashed. However, the matter stands remitted to the Trial Court with a direction to the learned Magistrate to pass appropriate orders under Section 204 of Cr.P.C., by applying his mind after going through the contents of the charge sheet and after finding out which are the offences constituted on the basis of the allegations made in the entire charge sheet papers.

With these observations, the petition is allowed and the order issuing summons against the accused is hereby quashed. Office is hereby directed to send a copy of this order to the Trial Court for the purpose of following the procedure as observed in the body of this order.

In view of the petition disposed of on merits, I.A. if any filed for stay in the office does not survive for consideration.