Learned counsel for the applicant submits that in the case F.I.R. has been lodged by police under Sections 188, 504, 506 I.P.C., Section 2/3 of Prevention of Damage of Public Property Act, 1984 and Section 3 of Mahamari Act, 1987 against 8 named persons on 11.7.2020. Thereafter chargesheet has been submitted after investigation on 23.8.2020 and Magistrate has taken cognizance of offence on 31.10.2020.
Learned counsel for the applicant has based his argument on the ground that according to law learned Magistrate has not applied his judicial mind for taking cognizance of offence, which is contrary to law hence impugned order dated 31.10.2020 is liable to be quashed.
Learned A.G.A. has opposed the aforesaid prayer. However, he did not dispute that the impugned order is on printed proforma.
On the basis of First Information Report lodged by Vinod Kumar Shukla, a Case No. 850 of 2020 (State Vs. Kashiram) under Sections 188, 504, 506 I.P.C., Section 2/3 of Prevention of Damage of Public Property Act, 1984 and Section 3 of Mahamari Act, 1987, FIR No. 117 of 2020 has been filed. After investigation, chargesheet has been filed on 23.8.2020 and the Additional Chief Judicial Magistrate, Court No. 17, Barabanki has passed the cognizance order dated 31.10.2020 upon the police report. It shows that cognizance order has been passed on the printed proforma by filling the date and sections.
The word cognizance is used to indicate the point of time when the Magistrate or Judge, first takes judicial notice of an offence. It is the application of judicial mind to the averments in the police report/complaint, that constitutes the cognizance. It is apparent on record that summoning order after taking cognizance on 31.10.2020 has been passed by the Additional Chief Judicial Magistrate, Court No. 17, Barabanki on printed proforma by filling up the gap.
Learned counsel for the applicant placed reliance on the case laws Basaruddin and others vs. State of U.P. and others 2011 (1) GIC 335 (ALLD.) (LB) in which the court has held that by filling the typed proforma, the accused has been summoned by the court in mechanical way. It is required by law that there must be application of judicial mind and Magistrate has to satisfy himself regarding prima facie case upon which cognizance can be taken and accused can be summoned. Apparently, the summoning order passed by the learned Magistrate suffers from non-application of mind while taking cognizance of the offence.
Learned counsel for the applicant has also placed reliance on the judgment passed in Kavi Ahmad vs. State of U.P. and others (Criminal Revision No. 3209 of 010) and Abdul Rasheed and others vs. State of U.P. and others [2010 (3) GIC 761 (ALLD.)] that whenever, any police report/complaint is filed before Magistrate, it is mandatory for Magistrate to apply his mind to the fact stated in the report/complaint for taking cognizance and the Magistrate may summon the accused if he finds that prima facie there is sufficient material on record to proceed with the matter. It has been held that in the case of Arvind Pandey and others vs. State of U.P. and others (Application U/s 482 Cr.P.C. No. 15372 of 2019) by this Court that 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.
In view of the above, the summoning order dated 31.10.2020 is hereby quashed and matter is remanded back to the court concerned to pass a fresh order upon police report dated 23.8.2020, expeditiously in accordance with law.
At this stage, the petition is allowed.
Order Date :- 22.2.2021 Vikas/-