Brijendra Kumar vs State Of Jharkhand And Ors

Ananda Sen, J

The order taking cognizance dated 03.10.2016 is under challenge. This application has been filed by the petitioner under section 482 Cr.P.C. praying

to quash the order taking cognizance.

First Information Report was registered under section 409/420/34 of the Indian Penal Code in connection with Adityapur P.S. Case No. 109 of

2016. After conclusion of investigation, the police filed charge sheet, naming the petitioner as one of the accused persons. Thereafter, the court below

passed the impugned order dated 03.10.2016 which is supposed to be an order of taking cognizance and also a summoning order. It is necessary to

quote the order:

“Received chargesheet no.-201/16 with case diary for the offenses u/s 409/420/34 I.P.C. against accused persons namely 1. Brijendra

Kumar and 2. Rajiv Kumar.

Seen, perused F.I.R., chargesheet and case diary, it appears that a primafacia case u/s 409/420/34 I.P.C. is made out against said accused

persons.

Accordingly Congnizanse of offenses u/s 409/420/34 I.P.C. is taken against said accused persons and case is kept in personal file for Trial

and Disposal.

Put up on date fixed for P.P.â€​

On perusal of the aforesaid order, I find that in the last paragraph, the court has observed that cognizance of offence under sections 409/420/34 of

the Indian Penal Code has been taken against the accused persons. It is settled principle of law that the cognizance is taken against the offence and

not against a person/accused. The court has to see as to whether there is material to issue summons against the accused persons or not after taking

cognizance. The court has to apply its mind twice, once to see as to whether any cognizable offence is made out or not and for second time to see

whether there are materials to summon one accused or not. When the court apply its mind and comes to conclusion that a prima facie case is made

out, then cognizance has to be taken against the offence and not against the accused. Thereafter, the process of summoning starts. Summons are

issued against the accused persons only when there are materials to issue summons against them. There can be a situation when an offence is made

out, but there are no materials to issue summons against some of the accused persons. The issuance of summons is based on the materials in the case

diary. The court has to apply its mind and see whether there is any material for issuance of summons against the accused persons or not.

Mechanically summons cannot be issued by taking a plea that cognizance of offence has been taken. The court must be satisfied that there are

materials to issue summons against the accused persons, then only the summons are to be issued. This, satisfaction has to be reflected in the impugned

order itself. The order taking cognizance also must reflect as to how the offence is made out. Similarly, the order issuing summons should reflect, what

are the available material for issuing summons to an accused. Even if the order is a composite one, both these satisfaction has to be recorded in the

order itself.

While going through the instant impugned order, I find that it is absolutely a cryptic order. Nothing has been mentioned in the order that what are the

materials brought forth against the accused persons to issue summons in terms of section 204 of Cr.P.C. Nor the court has recorded any satisfaction

that how a case under section 409/420/34 of the Indian Penal Code is made out.

The order passed by the court below is absolutely cryptic and passed in a mechanical manner. Thus the order dated 03.10.2016 passed by the Chief

Judicial Magistrate, Saraikella is set aside.

The Chief Judicial Magistrate, Saraikella is directed to pass order afresh in accordance with the above observations.