Court No. - 41
Reserved on 11.7.2018 Delivered on 31.7.2018 Case :- CRIMINAL MISC. WRIT PETITION No. - 3947 of 2005 Petitioner :- Chandra Shekhar And Another Respondent :- Sessions Judge, Allahabad And Others Counsel for Petitioner :- M.N. Singh,V.K. Singh Counsel for Respondent :- Govt. Advocate,Dev Raj Singh
Hon'ble Aniruddha Singh,J.
1- This petition has been preferred by Chandra Shekhar and Gauri Shanker against the order dated 9.12.2004 passed by Additional Chief Judicial Magistrate, Court No.13, Allahabad in Case No. 9 of 2002 (Gauri Shankar Vs. Ram) whereby the protest petition of the petitioners was dismissed against which the petitioners filed Criminal Revision No. 346 of 2005 which was dismissed by the Sessions Judge, Allahabad vide order dated 16.3.2005.
2- In brief, the facts of the case are that one Complaint Case No. 9 of 2002 was filed by Nandu Ram against Chandra Shekhar, Gauri Shanker and Moti Lal alleging therein that Aaraji nos. 1183 and 1342 were allotted by 'Patta' to the complainant and the petitioners with the help of concerned Lekhpal got forged entry in the revenue record in their names. After recording statements under Sections 200 I.P.C. of the complainant and under Section 202 I.P.C. of P.W.1.-Sita Ram and P.W.2-Hinchhlal and after perusal of the record, the petitioners and Moti Lal were summoned under Sections 467, 468 and 420 I.P.C. vide order dated 23.11.2002. Against this order a protest petition (Recall Application) was filed by the petitioners, which was dismissed vide order dated 9.12.2004 and subsequently revision filed by the petitioners against this order was also dismissed vide order dated 16.3.2005. Hence this petition.
3- Heard Sri V.K. Singh, learned counsel for the petitioners, Sri Dev Raj Singh, learned counsel for respondent no. 3 and learned A.G.A. for the State respondents no. 1, 2 and 4.
4- Learned counsel for the petitioners submitted that disputed land was declared surplus land and was under the ceiling proceedings and the petitioners are the owner of the said land. A notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act was issued against the ancestors of the petitioners against which the petitioners filed objection before the Additional District Magistrate, Allahabad which was allowed and vide order dated 30.11.1983, the Magistrate remanded back the matter to the Prescribed Authority to decide the matter as afresh. The Prescribed Authority after considering the entire materials available on record vide order dated 16.5.1986 exempted the land of the petitioners from ceiling proceedings and discharged the notices issued against them.
5- Sri Dev Raj Singh, learned counsel for the respondent no. 3 submitted that the disputed land belongs to Scheduled Caste and by forgery the petitioners get the mutation in their favour. Summoning order passed by the trial court is legal and no protest petition was maintainable against that order, hence that order was dismissed and revision filed by the petitioners before the competent court has also been dismissed. Hence, this petition has no force.
6- Learned counsel for respondent no.3 further submitted that at this stage evidence produced by the petitioners cannot be taken into account. The petitioners have an alternative remedy at the time of framing of charge as well as at the time of defence stage after statement of the accused recorded under Section 313 Cr.P.C.. Since alternative remedy is available, hence this petition may be dismissed on the ground of alternative remedy.
7- The relevant provisions of the Code of Criminal Procedure relating to taking of cognizance are being reproduced hereunder:-
"190. Cognizance of offences by Magistrates.--(1) 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.
203. Dismissal of complaint.-- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
204. Issue of process.-- (1) If in the opinion of a Magistrate taking cognizance of offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons- case, he shall issue his summons for the attendance of the accused, or
(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."
8- The word "cognizance" has repeatedly been used in different sections of the Code of Criminal Procedure, hereinafter referred to as "Cr.P.C.". However, this word has nowhere been defined in Cr.P.C.
9- The word "cognizance" has been defined in different judgments of the Apex Court. In the case of S. K. Sinha, Chief Enforcement Officer Vs. Videocon International Limited and others (2008)2 SCC page 492. The word cognizance has been narrated as follows:
"The expression "cognizance" has not been defined in Cr.P.C.. But the word (cognizance) is of definite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a Court or a judge, it connotes "to take notice of judicially". It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone"
10- The Apex Court in the case of Bhushan Kumar and another Vs. State of NCT of Delhi and another 2012(5) SCC 424, has described the expression of cognizance as follows:
"The expression "cognizance" in Sections 190 and 204 Cr.P.C. is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 Cr.P.C, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not as to whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 Cr.P.C."
11- In view of the mandate of the Apex Court discussed above, it is evident that the cognizance is taken by the court whereby it holds that sufficient grounds exist for initiation of criminal proceedings against the accused proposed to be summoned for trial. Further that the cognizance is taken in respect of a case and not in respect of the accused-persons in a case. The fact that the cognizance is taken by the Court is equivalent to the statement that all the conditions requisite for the initiation of proceedings are complete.
12- In the case of S. K. Sinha, Chief Enforcement Officer(Supra) quoted above, the Hon'ble the Apex Court in para 20 has defined as to how a cognizance is taken with the following observation:
"Taking Cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a Sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken "Cognizance".
13- It is settled principle of law that at the time of taking cognizance or issuing process under Section 204 Cr.P.C., the court is required to apply its mind and if he finds sufficient ground, it may take cognizance and issue process of summons.
14- In the case of Swarn Anand v. Chief Judicial Magistrate, 1977 Cr.L.J. 355 (All), this Court has held that the expression “in the opinion of a Magistrate” means that the Magistrate has to merely form an opinion as to the sufficiency of grounds for proceeding against the accused persons. It does not require him to record any reasons for his so doing.
15- In the case of National Insurance Company Ltd. v. Narendra Kumar Jhanjhri, 1990 Cr.L.J. 773, the Court has held that at this stage the defence of the accused is not the concern of the Court and it is only for the accused to appear and then put his defence which is to be considered by the Court at the time of framing of charge.
16- In the case of Anil Saran v. State of Bihar, AIR 1996 SC 204, the Apex court has held that the defence open to the accused is not to be seen at the time of issuance of process.
17- In the case of Bhajan Lal v. State of U.P., 2006 Cr.L.J. (NOC) 451, this Court has held that powers under Section 482 Cr.P.C. can be exercised despite dismissal of the revision against the summoning order by the Sessions Judge.
18- In the case of Ramesh Kumar v. Sushila Srivastava, 1997 Cr.L.J. 282 (284)(Raj), the Court has held that an order issuing process cannot be set aside on detail appreciation of evidence even if different view is possible.
19- In the case of dismissal of complaint under Section 203 Cr.P.C. the reasons to be recorded and if the Court found no sufficient ground for proceeding he may dismiss the complaint. It is also pertinent to mention herein that the offence levelled against the petitioners are not compoundable and cognizable.
20- In writ petition, it will not be proper to decide issues relating to fact which has to be adjudicated by the trial court/competent court. The Court finds that issue raised herein by the learned counsel for the petitioners and the documents adduced along with writ petition, may raise the issue and adduce the documents before the court below at the time of framing charges.
21- In view of the discussions made above and as per settled principles of law, at the time of taking cognizance of the offence and issuing summoning order the court is not required to give elaborate reasons describing the sufficient ground for taking cognizance or issuing summoning order of the offence.
22- In the present case, the impugned order has not been passed either on a printed proforma or by use of rubber stamp. A perusal of impugned order shows that cognizance and summoning order have been passed by court after perusal of case, evidence provided by the complainant/ papers. Merely for the reason that it has been written by ministerial staff of the court upon instructions of court, it may not be considered to have been passed in mechanical manner. The possibility, if any, that upon trial one or the other of several accused may be held not guilty of one or the other offences, may not be sufficient to hold the impugned order as wrong or illegal.
23- In view of the discussions made above, I find that learned counsel for the petitioners have failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order of summoning the petitioners and there is no sufficient ground for interfering with or setting it aside within the purview of Section 397/401 Cr.P.C.
24- The criminal writ petition is devoid of merits and is liable to be dismissed.
25- The criminal writ petition is accordingly dismissed.
26- Lower court record along with the copy of the order be transmitted to the court concerned for compliance. Stay order, if any, stands vacated.
Order Date :- 31.07.2018 OP