Court No. - 77
Case :- APPLICATION U/S 482 No. - 26785 of 2021 Applicant :- Satish Rana Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
Heard Mr. Sunil Kumar Srivastava, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This application u/s 482 Cr.P.C. has been filed by applicants with a prayer to allow the instant application and quash the charge sheet dated 5.7.2020 along with cognizance order dated 1.10.2020 passed by Ist Additional Civil Judge/A.C.J.M. Saharanpur as well as proceedings of Case No. 913 of 2020 arising out of Case Crime No. 74 of 2020, under Section 379 I.P.C. and Section 3/4 the prevention of Damage to Public Property Act, 1984 P.S. Biharigarh, district Saharanpur pending in the Court of Judicial Magistrate III Saharanpur. It is further prayed that during the pendency of the present application, further proceeding of aforementioned case shall be stayed.
Learned counsel for the applicant has argued that impugned matter has been filed under Section 379 I.P.C. and 3/4 of the prevention of Damage to Public Property Act, 1984 while cognizance order dated 1.10.2020 indicates that the cognizance has been taken under Section 379 I.P.C. and 3/4 of the Mines and Minerals Act.
Learned counsel for the applicant has further argued cognizance order is a cryptic order passed on printed proforma, only the date and signature have been put in by the Magistrate concerned without applying his judicial mind. He has placed reliance on the judgement passed by the coordinate Bench of this Court vide order dated 11.2.2021 in U/s 482/378/407 No. 683 of 2021 wherein it has been held that if cognizance has been taken on the printed proforma, the same is not sustainable in the eye of law. The same view has been expressed by the large Bench of this Court in following decisions of this Court:-
(i) Basaruddin & others Vs. State of U.P. and others 2011 (1) JIC 335 (All)(LB). The relevant paragraph of the said judgment is quoted below:-
"From a perusal of the impugned order, it appears that the learned Magistrate on the complaint filed by the complainant has summoned the accused in a mechanical way filling the date in the typed proforma. Learned Magistrate while taking cognizance of the offence on complaint was expected to go through the allegations made in the complaint and to satisfy himself as to which offences were prima facies, being made out against the accused on basis of allegations made in the complaint. It appears that the learned Magistrate did not bother to go through the allegations made in the complaint and ascertain as to what offences were, prima facie, being made out against the accused on the basis of allegations made in the complaint. Apparently, the impugned order passed by the learned Magistrate suffers from non-application of mind while taking cognizance of the offence. The impugned order is not well reasoned order, therefore, the same is liable to be quashed and the petition deserves to be allowed and the matter may be remanded back to the learned Chief Judicial Magistrate, Lakhimpur Kheri with direction to him to go through the allegations made in the complaint and ascertain as to what offences against the accused were prima facie being made out against the accused on the basis of allegations made in the complaint and pass fresh order, thereafter, he will proceed according to law."
(ii) 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 Sec. 190(1)(b) on printed proforma without applying his judicial mind towards the material collected by the Investigating Officer has been held illegal.
(iii) 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."
Learned counsel for the applicant has contended that such a proforma order could not have been passed as it indicates that there is no application of mind by the Magistrate concerned.
Learned A.G.A. could not dispute the said fact of the order being on a printed proforma.
In view of the above cognizance order dated 1.10.2020 is set aside and the matter is remanded back to the concerned court to pass a fresh and detailed order in accordance with law after hearing the parties concerned.
The prayer for quashing of charge sheet dated 5.7.2020 and proceedings of Case No. 913 of 2020 arising out of Case Crime No. 74 of 2020, under Section 379 I.P.C. and Section 3/4 the prevention of Damage to Public Property Act, 1984 P.S. Biharigarh, district Saharanpur pending in the Court of Judicial Magistrate III Saharanpur are declined.
Thus, the present application stands partly allowed with the aforesaid directions.
Order Date :- 20.12.2021 SY