Sanjeev Sirohi
Published on: 27 January 2023 at 13:44 IST
Without mincing any words whatsoever, the Allahabad High Court has in a brief, brilliant and balanced judgment titled Krishna Kumar (As Per FIR And The Charge Sheet Krishna Kumar Naayi) And Others Opposite Party vs State Of UP Thru. Prin. Secy. Home And 3 Others [Application u/s 482 No. – 677 of 2023] minced just no words to observe specifically that the conduct of the judicial officers concerned in passing orders on printed proforma by filling up the blanks without application of judicial mind is objectionable and deserves to be deprecated.
It must be mentioned here that the Single Judge Bench of Hon’ble Mr Justice Shamim Ahmed observed thus while quashing the cognizance order of the Court of ASJ/POCSO-II Raibareli summoning a man accused of committing offences under Sections 363 and 366 of the IPC and Sections 16 and 17 of POCSO Act, 2012.
It merits mentioning here that the Court found after going into the nitty gritty of the case that the Magistrate concerned had summoned the accused person on a printed proforma without assigning any reason while taking cognizance on the police report filed under Section 173 of CrPC.
At the very outset, the single Judge Bench comprising of Hon’ble Mr Justice Shamim Ahmed sets the ball in motion of this learned judgment by first and foremost putting forth that, “Heard Sri Siddharth Shanker Dubey, learned counsel for the applicants as well as Smt Jan Laxmi Tiwari Senanai, learned A.G.A. for the State and perused the record.”
While giving momentum to this laudable judgment, the Bench then observes in next para that, “The instant application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the entire criminal proceedings of Case No. 21 of 2019: State of U.P. Versus Krishna Kumar and other under Section 363, 366 I.P.C. and Sections 16 and 17 of Protection of Children from Sexual Offences Act, 2012, pending before the court of ASJ/POCSO-II Raibareli and also for quashing of the charge-sheet No.101/2019 dated 05.02.2019 and quashing of summoning order dated 08.02.2019.”
To put things in perspective, the Bench envisages in next para that, “As per the prosecution version of the F.I.R., on 13.11.2018 at 08.40 A.M. the complainant went to drop off his daughter to her school and after the end of school hours, the complainant found out that his daughter did not attend the school that day.
The complainant went home and checked his household trunk and found that the daughter had fled with Rs.20,000/- along with her. That complainant’s house is nearby to one neighbour Krishna Kumar Nayi’s house who lives with his son Avinash alias Shivam wife Shrimati, daughter Shivani and second son Abhishek as a family.
The complainant states that Avinash alias Shivam was living in some city for purpose of earning his livelihood. Furthermore, as per the allegations levelled by complainant on 13.11.2018 at about 8.40 AM in the morning Shivani and Abhishek dropped off the victim from school to station where accused Avinash alias Shivam was already present, who manipulated the victim in running away with him.
Also, it is alleged in the F.I.R. that Krishna Kumar Nayi was connected throughout on the phone and hence Krishna Kumar Nayi mother Shrimati sister Shivani and brother Abhishek all are involved in the said crime.”
On the other hand, the Bench then states in the next para that, “Learned counsel for the applicants further submits that the entire prosecution story is false. No such incident took place and the applicants have been falsely implicated in the present case.”
As we see, the Bench then mentions that, “I have heard the learned counsel for the parties and perused the record. The main issue for consideration before this Court is that whether the learned Magistrate may summon the accused person on a printed proforma without assigning any reason and take cognizance on police report filed under Sections 173 of Cr.P.C.
In this regard, it is relevant to mention here that a Court can take cognizance of an offence only when condition requisite for initiation of proceedings before it as set out in Chapter XIV of the Code are fulfilled.
Otherwise, the Court does not obtain jurisdiction to try the offences under section 190 (1) of the Cr.P.C. provided that “subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence–
(a) upon receiving a complaint of facts which constitute such offence,
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.””
Be it noted, the Bench then clearly states that, “At this juncture, it is fruitful to have a look so far as the law pertaining to summoning of the accused persons, by taking cognizance on a police report filed under section 173 of the Cr.P.C., is concerned and the perusal of the case law mentioned herein below would clearly reveal that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused,”.
“Since, it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the material collected by the Investigating Officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial,”.
“This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the law on the subject and the orders of Magistrate does not suffers from non-application of judicial mind while taking cognizance of the offence.”
Adding more to it, the Bench then observes that, “Fair and proper investigation is the primary duty of the Investigating Officer. No investigating agency can take unduly long time in completing an investigation,”.
“There is implicit right under Article 21 for speedy trial which in turn encompasses speedy investigation, inquiry, appeal, revision and retrial. There is clear need for time line in completing investigation for having in-house oversight mechanism wherein accountability for adhering to lay down timeline, can be fixed at different levels in the hierarchy, vide Dilawar vs. State of Haryana, (2018) 16 SCC 521, Menka Gandhi vs. Union of India, AIR 1978 SC 597, Hussainara Khatoon (I) vs. State of Bihar, (1980)1 SCC 81, Abdul Rehman Antulay vs. R.S. Nayak, (1992) 1 SCC 225 and P. Ramchandra Rao vs. State of Karnataka, (2002) 4 SCC 578.”
It is worth noting that the Bench then enunciates that, “For the purposes of investigation, offences are divided into two categories “cognizable” and “non-cognizable”. When information of a cognizable offence is received or such commission is suspected, the proper police officer has the authority to enter in the investigation of the same but where the information relates to a non-cognizable offence, he shall not investigate it without the order of the competent Magistrate,”.
“Investigation includes all the proceedings under the Cr.P.C. for the collection of evidence conducted by a police officer or by any person other than a Magistrate (who is authorised by a Magistrate in his behalf). Investigation consists of steps, namely (i) proceeding to spot, (ii) ascertainment of the facts and circumstances of the case, (iii) discovery and arrest of the suspected offender, (iv) collection of evidence relating to the commission of the offence and (v) formation of opinion as to whether on the material collected therein to place the accused before a Magistrate for trial and if so to take necessary steps for the same by filing a charge sheet under Section 173, Cr.P.C., vide H.N. Rishbud vs. State of Delhi, AIR 1955 SC 196,”.
” Thereafter, the learned Magistrate has to take cognizance after application of judicial mind and by reasoned order and not in mechanical manner.”
While referring to the case of Ankit Vs State of UP And Another passed in Application U/S 482 No. 19647 of 2009 decided on 15.10.2009, the Bench clearly states that, “Below aforesaid sentence, the seal of the court containing name of Sri Talevar Singh, the then Judicial Magistrate III, has been affixed and the learned magistrate has put his short signature (initial) over his name,”.
“The manner in which the impugned order has been prepared shows that the learned magistrate did not at all apply his judicial mind at the time of passing this order and after the blanks were filled up by some employee of the court, he has put his initial on the seal of the court. This method of passing judicial order is wholly illegal,”.
“If for the sake of argument, it is assumed that the blanks on the printed proforma were filled up in the handwriting of learned magistrate, even then the impugned order would be illegal and invalid, because order of taking cognizance of any other judicial order cannot be passed by filling up blanks on the printed proforma,”.
“Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma,”.
“At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind.”
While citing yet another relevant case law, the Bench hastens to add that, “In the case of Kavi Ahmad Vs. State of U.P. and another passed in Criminal Revision No. 3209 of 2010, wherein order taking cognizance of offence by the Magistrate under Section 190(1)(b) on printed proforma without applying his judicial mind towards the material collected by the Investigating Officer has been held illegal.”
To be sure, the Bench further adds that, “In the case of Abdul Rasheed and others Vs. State of U.P. and another 2010 (3) JIC 761 (All). The relevant observations and findings recorded in the said case are quoted below:-
“6. Whenever any police report or complaint is filed before the Magistrate, he has to apply his mind to the facts stated in the report or complaint before taking cognizance. If after applying his mind to the facts of the case, the Magistrate comes to the conclusion that there is sufficient material to proceed with the matter, he may take cognizance.
In the present case, the summoning order has been passed by affixing a ready made seal of the summoning order on a plain paper and the learned Chief Judicial Magistrate had merely entered the next date fixed in the case in the blank portion of the ready made order.
Apparently the learned Magistrate had not applied his mind to the facts of the case before passing the order dated 20.12.2018, therefore, the impugned order cannot be upheld.
7. Judicial orders cannot be allowed to be passed in a mechanical manner either by filling in blank on a printed proforma or by affixing a ready made seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot be allowed to perpetuate.
This reflects not only lack of application of mind to the facts of the case but is also against the settled judicial norms. Therefore, this practice must be stopped forthwith.””
Most significantly and also most remarkably, the Bench then holds that, “In view of the above, this Court finds and observes that the conduct of the judicial officers concerned in passing orders on printed proforma by filling up the blanks without application of judicial mind is objectionable and deserves to be deprecated,”.
“The summoning of an accused in a criminal case is a serious matter and the order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto, whereas the impugned summoning order was passed in mechanical manner without application of judicial mind and without satisfying himself as to which offence were prima-facie being made out against the applicants on the basis of the allegations made by the complainant. The impugned cognizance order passed by the learned Magistrate is against the settled judicial norms.”
As a corollary, we see that the Bench then holds so very rightly that, “In light of the judgments referred to above, it is explicitly clear that the order dated 08.02.2019 passed by the ASJ/POCSOII, Raibareli is cryptic and does not stand the test of the law laid down by the Hon’ble Apex Court. Consequently, the cognizance/summoning order dated 08.02.2019 cannot be legally sustained, as the Magistrate failed to exercise the jurisdiction vested in him resulting in miscarriage of justice.”
Resultantly, we see that the Bench directs that, “Accordingly, the present Criminal Misc. Application U/S 482 Cr.P.C succeeds and is allowed. The impugned summoning order dated 08.02.2019 passed in Case No. 21 of 2019: State of U.P. Versus Krishna Kumar and others under Section 363, 366 I.P.C. and Sections 16 and 17 of Protection of Children from Sexual Offences Act, 2012, pending before the ASJ/POCSO-II Raibareli is hereby quashed.”
What’s more, the Bench then mandates stating that, “The matter is remitted back to ASJ/POCSO-II Raibareli directing him to decide afresh the issue for taking cognizance and summoning the applicants and pass appropriate orders in accordance with law keeping in view the observations made by this Court as well as the direction contained in the judgments referred to above within a period of two months from the date of production of a copy of this order.”
Still more, the Bench also directs that, “The party shall file certified copy or computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.”
Finally, the Bench concludes by aptly holding that, “The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.”
All told, we thus see that the Allahabad High Court has taken a grim view of the judicial officers conduct in passing orders on printed proformas sans application of judicial mind as ‘objectionable’. It thus therefore merits no reiteration that all the judicial officers must definitely comply unconditionally and in totality with what the Allahabad High Court has laid down so very commendably, cogently and convincingly in this leading case! No denying it!
Sanjeev Sirohi, Advocate