Dinesh Kumar Gupta vs State of U.P. and Another

Vijay Prakash Pathak, J.—The present petition has been filed with the prayer to quash the charge-sheet submitted in case Crime No. 554/12 (Case No. 308 of 2012) u/s 498A IPC and 3/4 D.P. Act P.S. Karimuddinpur District Ghazipur in which cognisance has been taken by the learned Magistrate vide order dated 3.10.2012. Heard learned counsel for the applicant as well as learned AGA for the State.

Learned counsel for the applicant has mainly contended that the learned Magistrate has taken cognisance in the case without perusing the case diary and applying his mind. It is submitted that according to the order impugned dated 3.10.2012, the charge-sheet was received from the office of C.O., cognisance taken, Court is vacant. Let the case be registered and summons be issued against the accused and the file was sent to prepare the copies. It is submitted that the learned Magistrate has not perused the charge-sheet and other materials including case diary of the case. Hence the order of taking cognisance and issuing summons is against the legal procedure. In support of his contention he placed reliance upon the decision of this Court given in Akash Garg Vs. State of U.P. and Others, .

I have considered the said argument as well as the decision of this Court given in Akash Garg v. State of U.P. and others (Supra). In the said decision, this Court has also considered the judgment of the Apex Court in the case of Fakhruddin Ahmad Vs. State of Uttaranchal and Another, . The Hon''ble Apex Court in the aforesaid verdict in paragraph 15 has held as under:

Nevertheless, it is well-settled that before a Magistrate can be said to have taken cognisance 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 or the information received from a source other than a police report, as the case may be, and the material filed therewith. 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 offender.

In the aforesaid decision Akash Garg v. State of U.P. (Supra)the following principle has been laid down in para 6 and 12 has held as under:

It is well-settled that the Magistrate is not bound by the conclusion of the Investigating Officer. He is competent under law to form his own independent opinion on the basis of the materials collected during the investigation. The Magistrate may or may not agree with the conclusion of the Investigating Officer. If the Investigating Officer submits charge-sheet, in that eventuality the Magistrate may differ from the charge-sheet and refuse to take cognizance by holding that no case is made out. In a case where the final report lis submitted the Magistrate may on perusal of the materials placed in support of the final report opine that the conclusion of the Investigating Officer is not correct and the offence is made out. In that eventuality, the Magistrate may reject the final report and take cognizance of the offence.

It is also well-settled that at the stage of taking cognisance of an offence, the Magistrate is not required to examine thoroughly the merits and demerits of the case and to record a final verdict. At that stage he is not required to record even reasons, as expression of reasons in support of the cognizance may result in causing prejudice to the rights of the parties (complainant or accused) and may also in due course result in prejudicing the trial. However, the order of the Magistrate must reflect that he has applied his mind to the facts of the case. In other words at the stage of taking cognizance what is required from the Magistrate is to apply his mind to the facts of the case including the evidence collected during the investigation and to see whether or not there is sufficient ground (prima facie case) to proceed with the case. The law does not require the Magistrate to record reasons for taking cognizance of an offence.

The present case needs to be examined in the light of aforesaid settled principles given by Hon''ble Apex Court in the case of Fakruddin v. State of Uttaranchal and another (Supra) and this Court in the case Akash Garg v. State of U.P. (Supra). The cognizance order dated 3.10.2012 in the present case has been passed in the following manner:

A perusal of the aforesaid order it is revealed that the learned Magistrate has no where mentioned in the order that he has perused the charge-sheet and material filed in support thereof nor he disclosed the fact that the materials were sufficient to proceed with the case. The manner in Which the learned Magistrate has passed the order impugned cannot be said that he had applied his mind to the facts contained in the charge-sheet and other materials filed in support thereof. Therefore, the aforesaid order cannot be described as an order "taking of cognizance of the offences" disclosed in the charge-sheet against the petitioner, hence the order dated 3.10.2012 cannot be sustained.

In view of the aforesaid considerations this petition is allowed. The order dated 3.10.2012 is hereby set aside. The learned Magistrate is directed to reconsider the charge-sheet in the light of the relevant material and observations made above and pass appropriate order afresh on the charge-sheet in accordance with law.