An order of cognizance must be based on a careful consideration of the facts of the case and the law applicable thereto. A delay in the trial may be a ground for quashing the order of cognizance if no useful purpose would be served by allowing the case to continue.

P.K.Sarkar, J.

1. This petition under Sec. 482, Cr.P.C. is for quashing the order of cognizance dated 3.3.93 passed by the Sub-Divisional Judicial Magistrate, Muzaffarpur (West) in G.R. Case No. 2/76.

2. The brief facts leading to the present application is that O.P. No. 2 Jagarnath Chowdhury instituted a case (G.R. 2/76) alleging that a dacoiry was committed in the night intervening 2nd and 3rd January, 1976, in his house and the petitioner-accused was identified during the commission of the alleged dacoity. It was further alleged that he heard the sound of foot-steps of some persons and saw in the light of torch used by the dacoits. In the meantime, four dacoits holding Farsas in their hands surrounded him and in this process, he identified the petitioner. The Police took up the investigation of the case and submitted a Final Report bearing No. 28 dated 3.6.76 was submitted showing the case to be maliciously false under Sec. 395, I.P.C. The informant O.P. No. 2 filed a protest-cum-complaint petition. An enquiry was made under Sec. 202, Cr.P.C. and cognizance was taken against the petitioner on 30.4.81 under Section 395, I.P.C.

3. Being aggrieved and dissatisfied with the impugned order, the petitioner filed a petition in this Court bearing Cr. Misc. No. 3087/81. On hearing the matter, the Court set aside the impugned order on 17.11.83 for fresh application of mind by the Trial Court. It is submitted that, thereafter, the Court without applying his mind passed another order dated 3.3.93 upholding the previous order. Hence, this application.

4. O.P. No. 2, however, did not file any counter-affidavit in this case.

5. The learned Counsel for the petitioner submitted firstly that the order of cognizance passed by the Sub-Divisional Judicial Magistrate is a mechanical order without applying his mind and secondly, the occurrence is dated 3.1.76 i.e. about twenty two years ago. So, no useful purpose will be served in prosecuting the case now.

6. As regards the first point, the learned Counsel for the petitioner submitted that admittedly the Police, who investigated the case, found the case as false under Sec. 395, I.P.C. and submitted Final Report and order for closure of the proceeding. The informant O.P. No. 2, thereafter, filed a protest petition and the complainant was examined on solemn affirmation. Five witnesses were examined under Sec. 202, Cr.P.C. The Magistrate, thereafter, considered their evidence. He was not convinced with the evidence of those witnesses but took cognizance on the ground that within the limited scope under Sec. 202, Cr.P.C. he cannot waive their evidences, Considering the aforesaid facts, this Court in Cr. Misc. No. 3087/91 quashed the order and directed the Court below to consider the matter afresh. The Court thereafter, considered the matter again on 3.3.93 and without giving any reasons simply observed that a prima facie case is made out against the petitioner under Sec. 395, I.P.C. and there is sufficient ground for proceeding against him. The aforesaid order did not show any thing by which it can be held that after remand of the case by this Court for fresh consideration, the Court below applied his mind. He simply perused the facts already on record on the basis of which earlier the Court had a suspicion in the matter. Thus, this order can also be not sustained and deserves to be set aside.

7. In this connection, the learned Counsel for the petitioner placed reliance on a decision , [Pepsi Foods Ltd. and Anr. V/s. Special Judicial Magistrate and others). For convenience, the observation of the Apex Court can be mentioned below:

Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind t