Prem Tewari vs State of U.P. and Another

Bala Krishna Narayana, J.—Heard learned Counsel for the Petitioner and the learned AGA appearing on behalf of State.

It appears that the learned Sessions Judge, Kushinagar at Padrauna, by his order dated 19.8.2009 passed in (State of U.P. v. Meraz Ansari and Ors. S.T. No 85 of 2009) has taken cognizance of the offence u/s 8/20 N.D.P.S Act registered at Police Station Patherva, District Kushinagar.

Learned Counsel for the Petitioner submitted that the learned Magistrate has not applied his mind to the facts of the case and has taken cognizance of the offence by an order which has been passed without any application of mind to the material on record and hence the impugned order by which cognizance is taken is liable to be quashed.

Per contra learned AGA made his submissions in support of the impugned order.

I have very carefully examined the submissions advanced by learned Counsel for the Petitioners learned AGA for the State and perused the impugned order as well as other materials brought on record.

Whenever any police report or complaint is filed before the Magistrate, he should take cognizance only if after applying his mind the Magistrate comes to the conclusion that there is sufficient material on record to take cognizance. In the present case from the perusal of the impugned order it is apparent that no effort was made by the Magistrate to examine the material which had been collected by the Investigating Officer during investigation and the learned Magistrate has in a mechanical manner taken cognizance by the impugned order.

Apparently learned Magistrate has not applied his mind to the facts of the case and the materials on record. There is no consideration of the allegations made and no satisfaction has been recorded that such allegations , if proved, shall constitute an offence. The Apex Court in the case of Fakhruddin Ahmad v. State of Uttaranchal LXIV (2009) ACC 774 while considering identical issue has held in paragraph 15 of the said judgment as under:

Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance 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 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 he has taken cognizance is in regard to the offence and not the offender.

The impugned order can not be sustained in view of the law laid down in the case of Fakhruddin Ahmad v. State of Uttaranchal (Supra) the judicial orders can not be allowed to be passed in a mechanical manner.

The writ petition is accordingly allowed. The order dated 19.8.2009 passed in S.T. No 85 of 2009 (State of U.P. v. Meraz Ansari and others) u/s 8/20 N.D.P.S Act registered at Police Station Patherva, District Kushinagar is hereby set aside. The learned Sessions Judge, Kushinagar at Padrauna is directed to pass a fresh order in accordance with law.

This order shall be communicated to the learned learned Sessions Judge, Kushinagar at Padrauna by Registrar General of this Court within three weeks from today.