Rajendra Kumar vs State Of Uttarakhand And Another

Ravindra Maithani, J

The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") has been filed for quashing the entire proceedings in Criminal Case No.293 of 2015, State vs. Rajendra Kumar pending in the Court of learned Judicial Magistrate III Dehradun (for short "the Case") as well as for quashing the summoning order dated 15.01.2015 passed in the case.

Learned counsel for the petitioner has raised only a legal issue. According to the learned counsel in this matter the summoning order has not been passed in accordance with law. It is on a printed proforma in which blanks have been filled in and this is not compliance of the legal provisions. It is argued that summoning an accused is a judicial act, which may be passed only after due application of mind, having considered all the relevant facts but it is urged that it has not happened in the case. Therefore, it is argued that the summoning order deserves to be set aside and petition allowed with the direction to the court below to consider the matter afresh. In support of his contention learned counsel for the petitioner placed reliance in the cases of Pawan Kumar Sharma vs. State of Uttaranchal (Special Leave to Appeal (Crl) No(s)4701 of 2007) Saurabh Dewana vs. State of U.P. (Application under Section 482-No.8618 of 2010, High Court of Judicature at Allahabad), Ankit vs. State of U.P. & Another (Application under Section 482-No.19647 of 2009, High Court of Judicature at Allahabad).

In the case of Pawan Kumar (Supra) Hon'ble Supreme Court observed about the practice being adopted in the State of Uttarakhand that in the State, the Magistrates take cognizance of offences and issue summons in terms of Section 202 of the Code on rubber stamped orders. In this case reference has also been made to the judgment in the case of State of Karnataka and another vs. Pastor P. Raju 2006(6) SCC 728, in this case it was held as under:-

"13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out."

In the case of Saurabh Dewana (supra) and Ankit (Supra) High Court of Allahabad observed that cognizance order on printed proforma, by filling up the blanks shows non application of judicial mind.

On the other hand learned Additional Government Advocate would argue that summoning order is valid and in the charge sheet cognizable order has been passed by the learned Magistrate himself, therefore, no interference is warranted in this case.

Learned counsel for the State has placed reliance on the principles of law as laid down in the case of Mehmood Ul Rehman vs Khazir Mohammad Tunda and Others (2015) 12 SCC 420. Special reference has been made to para 15 of the judgment in which the Hon'ble Court has held as under:-

"15. In Kanti Bhadra Shah v. State of W.P., this Court has taken the view that it is quite unnecessary to write detailed orders at the state of issuing process. In U.P. Pollution Control Board v. Mohan Meakins Ltd., the position was further clarified that it was not necessary to pass a speaking order at the stage of taking cognizance. In Chief Controller of Imports and Exports v. Roshanlal Agarwal, this Court considered the situation where the impugned order passed by the Magistrate reads as follows: (SCCp. 145, para 8)

''8'. ...'Cognizance taken. Register the case. Issue summons to the accused.' "

It was held that:(SCC p. 145, para 9)

"9. ...At the state of issuing the process to the accused, Magistrate is not required to record reasons."

The word cognizance has such not been defined in the Court. Taking cognizance and summoning an accused are not one and the same thing. It is also settled legal proposition that cognizance is always taken of an offence and the offender are summoned either simultaneously or after taking cognizance of the matter. In the case of Prasad Shrikant Purohit vs. State of Maharashtra and another (2015) 7 SCC 440, the Hon'ble Supreme Court referred to the judgment of Darshan Singh Ram Kishan vs. The State of Maharashtra 1971(2) SCC 654 and observed as hereinunder:-

"73. In Darshan Singh Ram Kishan, in para 8, with particular reference to Section 190, this Court has held as under: (SCC p. 656)

"8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report".

(emphasis supplied)

The above passage referred to in the said decision makes the position explicitly clear that cognizance would take place at a point when a Magistrate first takes judicial notice of the offence either on a complaint or on a police report or upon information of a person other than the police officer. Taking judicial notice is nothing but perusing the report of the police officer, proceeding further on that report by opening the file and thereafter taking further steps to ensure the presence of the accused and all other consequential steps including at a later stage, depending upon the nature of offence alleged, to pass necessary order of committal to Court of Session."

(emphasis supplied)

Before any further discussion is made, it would be expedient to have a look as to what the case is all about. In the instant case F.I.R was lodged on 05.06.2014 under Sections 498-A, 504, 506, 316 IPC and 3/4 Dowry Prohibition Act. According to it the first informant was married to the petitioner on 28th October 2012 but, the petitioner and his family members were not happy with the gifts given at the time of marriage and they were demanding a car. The first informant was harassed in her in-laws house and she was beaten up by the petitioner. Because of it, a quick unborn child of the first informant died in the womb and she had to be admitted in Doon Hospital. There are other details also included in the F.I.R. After investigation charge sheet under Sections 498-A, 504, 506, 316 IPC and 3/4 of Dowry Prohibition Act was submitted. On 15.01.2015 summoning order was passed. As stated, this is the order under challenge.

In the instant petition it is not only the printed proforma, in which blanks have been filled in by the Magistrate while summoning the petitioner. In fact on 15.01.2015 when the charge sheet was submitted, the Magistrate took cognizance and ordered for registration of the matter. The order passed by the Magistrate is hereunder;

"Perused C.D. and papers.

Cognizance is taken.

Register"

Thereafter on the same day, on the order sheet an order has been passed to summon the accused. It is true that in the summoning order blanks have been filled in. In the instant case the cognizance has been taken by the Magistrate after due perusal of the relevant documents. In fact, the cognizance order has been passed by the Magistrate on the charge sheet itself, wherein, order for registration of the case has also been passed. Thereafter the only process was to summon the accused. The Magistrate has not distinguished between two accused including the petitioner, against whom the charge sheet had been received and the matter was ordered to be registered. Therefore, the summoning order is simultaneous with the order taking cognizance as both the accused including the petitioner have been summoned. Hence, it cannot be said that the summoning order has been passed without due application of mind and it can also not be said that the summoning order, in the instant case is only on a printed proforma. Therefore, this Court is of the view that there is no scope to make any interference and the petition deserves to be dismissed.

The petition is dismissed, accordingly.