Heard Sri Manish Tiwary, learned counsel for the revisionist, Sri Anoop Trivedi for the Opposite Party No. 2 and learned A.G.A. for the State.
Counter and rejoinder affidavits have been exchanged between the parties. With the consent of the learned counsel for the parties, this revision is being finally disposed of at this stage.
This criminal revision has been filed by the revisionist Chandravati @ Chandra Maheshwari with prayer to set aside the order dated 17.07.2010 passed by Chief Judicial Magistrate, Aligarh in Case No.3552 of 2010, by which he has taken cognizance for offences punishable under Sections 420, 467, 468, 471 I.P.C. and summoned the revisionist along with two other co-accused.
Sri Manish Tiwary, learned counsel for the revisionist vehemently submitted that the order passed by the Magistrate taking cognizance does not reflect any application of mind to the facts of the case and the material on record and cognizance has been taken in a mechanical manner.
Learned counsel for the revisionist next submitted that the incident on the basis of which charge sheet was submitted and cognizance was taken by the Magistrate took place about 20 years ago in Hajipur, State of Bihar and hence learned Magistrate had no jurisdiction to entertain the charge sheet and to summon the accused.
Sri Anoop Trivedi, learned counsel for the opposite party no. 2 submitted that the revisionist with the motive of obtaining employment in the Railway Department forged documents at District Aligarh claiming herself to be a member of Scheduled Caste category and procured appointment in Indian Railways at Gorakhpur on the strength of the aforementioned forged documents.
Sri Trivedi next submitted that the offence was committed within the territorial jurisdiction of District Aligarh and subsequently owing to the transfer of the division from Gorakhpur to Samastipur, the papers pertaining to the appointment of the revisionist including the forged documents have been transmitted to Samastipur and no part of cause of action has arisen within the territorial jurisdiction of District Samastipur.
Sri Trivedi further submitted that the first information report was lodged by the opposite party no. 2 at P.S. Banna Devi, District Aligarh on the basis of which the instant case was registered against the revisionist. However, even during investigation the revisionist continuously evaded the process of law. He neither appeared before the Investigating Officer nor cooperated with the investigation and when eventually on the application of the Investigating Officer dated 03.07.2010, the Chief Judicial Magistrate issued warrants against the revisionist on 03.07.2010 and the revisionist was arrested from her Delhi's address on 06.07.2010 and brought to Police Station Banna Devi, District Aligarh, the Officer in charge P.S. Banna Devi erroneously granted bail to the revisionist on his furnishing personal bonds and sureties on 07.07.2010.
Sri Trivedi also submitted that despite filing undertaking before the Chief Judicial Magistrate that she will appear before the Chief Judicial Magistrate, Aligarh on 07.07.2010, she did not appear before the concerned Court and instead moved a surrender application before the Court of Chief Judicial Magistrate but did not appear before the Court concerned again as a result the surrender application was rejected whereupon on the application of the complainant /O.P. No. 2 filed before the Chief Judicial Magistrate, Aligarh alleging therein collusion between the revisionist and the Officer in-charge of the Police Station Banna Devi, the concerned Court called for a report from the Investigating Officer. The Investigating Officer submitted a report on 12.07.2010 stating therein that the revisionist had been granted bail on the ground of her illness where after non-bailable warrants were issued against the revisionist by the Court below by order dated 03.08.2010, which was challenged by the revisionist before this Court by means of an application under Section 482 Cr.P.C, which was finally disposed of by this Court by order dated 09.09.2010 whereby this Court directed the Trial Court to conduct the trial in legal and fair manner and if the accused person has not obtained bail then compel her to follow the mandate of law.
Learned Counsel for the opposite party no. 2 vehemently urged that since the revisionist has approached this Court without disclosing aforesaid material facts, he is not entitled to any relief from this Court and the impugned order is not liable to be set aside on the technical grounds urged on behalf of the revisionist.
I have very carefully examined the submissions advanced by the learned counsel for the parties and perused the impugned order as well as other materials brought on record and I am of the considered opinion that there is no need to enter into and examine the merits of the numerous arguments advanced on behalf of the parties at this stage and this revision can be finally disposed of on the limited ground as to whether the order by which the learned Magistrate has taken cognizance of the offence is liable to be set aside on the ground that the same is a cryptic and non speaking order which reflects non application of mind by the court below to the facts of the case and the materials on record.
In support of his contention that the order by which the learned Magistrate has taken cognizance in the present case is liable to be set aside on account of it being a non speaking order, learned counsel for the revisionist has placed reliance upon the case of Fakhruddin Ahmad Vs. State of Uttaranchal and another, 2009 (64) ACC 774.
Per contra learned A.G.A. made his submissions in support of the impugned order.
From the perusal of the impugned order it appears that before taking cognizance the learned Magistrate has neither taken into consideration the nature of accusations nor he has made any any effort to satisfy himself as from the materials collected during investigation and keeping in view the nature of the allegations made against the revisionist any offence under Sections 420, 467, 468, 471 I.P.C was disclosed or not. By the impugned order he has taken cognizance in a very cursory and routine manner. While dealing with the identical issue the Apex Court in the case of Fakhruddin Ahmad (supra) has held hereunder:
15. 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 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.
Thus, in view of the above and the fact that the impugned order by which cognizance has been taken does not reflect any application of mind the same cannot be sustained. This revision is allowed. The order dated 17.07.2010 passed by Chief Judicial Magistrate, Aligarh in Case No. 3552 of 2010 is set aside with the direction that the Magistrate shall pass a fresh order in the matter in accordance with law within a period of one month from the date of production of a certified copy of this order.
It goes without saying that before passing afresh order in the matter, the Court below shall take into consideration the entire facts and circumstances of the case as well as the materials on record.
Learned counsel for the revisionist undertakes to file a certified copy of this order before the Magistrate concerned within a month from today. In case he fails to do so, this revision shall stands dismissed automatically.
Order Date :- 23.2.2011 arun