It has been submitted by learned A.G.A. that despite sending letter, no instructions have been received.
Learned counsel for the applicant has submitted that vide order dated 21.01.2021, learned A.G.A. was directed to seek instruction within three days. After three days, more than six days have passed but still no instructions have been submitted.
Learned A.G.A. could not explain as to why the instructions could not be procured till date. In such a scenario, the Court is compelled to proceed with the case on the basis of material available on record.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
Considering the fact of the case, it is not necessary to issue notice to opposite party No.2. Hence, notice to opposite party No.2 is dispensed with.
This petition under Section 482 Cr.P.C. has been filed for setting aside impugned summoning order dated 30.09.2020, passed by the Court of Civil Judge (S.D.)/A.C.J.M., Ambedkar Nagar in Criminal Case No.6223/2020, Crime No. 51/2020, under Sections 323, 504, 506, 308 IPC, Police Station Bhiti, District Ambedkar Nagar (State Vs. Ram Tilak Verma). A further prayer has also been made to quash the charge-sheet No.A-141/2020, dated 24.07.2020 relating to the above crime.
Learned counsel for the applicant has based his argument on the ground that the summoning order dated 30.09.2020, is non speaking order. It is contrary to the law. It appears that the Presiding Officer of the Court has neither perused the record, nor applied his judicial mind for taking cognizance of offence, which is contrary to law. Hence, impugned summoning order dated 30.09.2020 is liable to be set aside.
Learned A.G.A. has opposed the aforesaid prayer. However, he did not dispute that the impugned order has been passed by Court concerned without showing prima facie case for taking the cognizance.
On the basis of First Information Report lodged by informant one Bajrang Verma, the police, after investigation, submitted charge-sheet No.A-141/2020, dated 24.07.2020 and the Magistrate concerned (A.C.J.M. Ambedkar Nagar) has passed the cognizance order dated 30.09.2020 upon the police report. It shows that cognizance order has been passed without application of judicial mind.
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 30.09.2020 has been passed by the Magistrate concerned mechanically.
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 30.09.2020, passed by learned Civil Judge (S.D.)/A.C.J.M, Ambedkar Nagar in Criminal Case No.6223 of 2020, relating to Case Crime No.51/2020, under Sections 323, 504, 506, 308 IPC, Police Station Bhiti, District Ambedkar Nagar is hereby quashed and matter is remanded back to the court concerned to pass a fresh order upon police report dated 24.07.2020, expeditiously in accordance with law.
At this stage, the petition is allowed.
Order Date :- 29.1.2021 ML/-