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ALLAHABAD HIGH COURT
Abhay Mahadeo Thipsay, J.
Bindeswari Prasad Bhardwaj - Appellant
Versus
State of U.P. - Respondent
Case under section 482/378/407 No. 5060 of 2016
Decided On : 10-08-2016
Section 197 - Quashing of Proceedings - The court held that the use of a printed proforma for issuing summoning order does not necessarily indicate non-application of mind, and the summoning order should not be quashed solely on this ground. The key legal provision discussed is Section 197 of the Code of Criminal Procedure, which requires sanction for prosecution of public servants.
Fact of the Case:
The petitioner, an accused in a criminal case, sought to quash the charge sheet and summoning order, arguing that there was no sanction for his prosecution as required under Section 197 of the Code.
Finding of the Court:
The court rejected the petitioner's argument, stating that the use of a printed proforma for the summoning order does not necessarily indicate non-application of mind, and quashing the order solely on this ground would result in avoidable delay and wastage of public money.
Issues: The issues involved the requirement of sanction for prosecution under Section 197 of the Code and the validity of the summoning order based on the use of a printed proforma.
Ratio Decidendi: The court emphasized that the summoning order should not be quashed solely because it was a 'proforma' order, and the key consideration should be the application of mind by the Magistrate based on the material in the charge sheet.
Final Decision: The petition was rejected by the court.
Abhay Mahadeo Thipsay, J. –
Heard the learned counsel for the petitioner and the learned Additional Government Advocate.
2. The petitioner is the accused in Crl. Case No. 1129/2015 pending before the Chief Judicial Magistrate, Gonda. He is aggrieved by the filing of the charge sheet against him and the summoning order, and has approached this Court by the present petition praying that the charge sheet and the proceedings of the said case be quashed.
3. The learned counsel for the petitioner submitted that there has been no sanction for his prosecution as is required under the provisions of Section 197 of the Code of Criminal Procedure (the 'Code'). Though emphasis on this aspect has been placed, it is not asserted that the petitioner falls in the category of public servants who cannot be prosecuted without a sanction under Section 197 of the Code.
4. When this is found, the learned counsel for the petitioner submitted that the order taking cognizance is bad, as the same has been passed on a 'printed proforma' mechanically. According to him, this shows non-application of mind.
5. I have gone through the summoning order. The order is a typewritten one, with dates, names, etc., put by 'ink', in the blanks, kept in the typewritten matter.
6. Indeed, it appears that some matter had already been typed, and the blanks kept in, have been filled, in handwriting by the Magistrate. However, in my opinion this, by itself, does not show non-application of mind.
7. Learned counsel for the petitioner submitted that it has been held by this Court that the order of cognizance passed on a printed proforma, shows non-application of mind and such order is liable to be set aside.
8. I have been shown two decisions delivered by two Hon'ble Single Judges of this Court.
9. In the decision reported in 2010(2) JIC31 (All), a learned Single Judge has held that order taking cognizance was passed on a printed proforma by filling the blanks and that itself indicated non application of judicial mind in passing the said order.
10. In the decision reported in 2012(2) JIC 563 (All), another learned Single Judge held that it was well settled that before a Magistrate could be said to have taken cognizance of an offence, it was 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. A view has been taken in the said decision that 'since the order had been passed by filling up the blanks, it was illegal and incorrect'.
11. I have carefully gone through the aforesaid decisions. In both these decisions, the lower courts were directed to pass orders afresh, according to the law, by applying judicial mind and on the basis of the material collected by the investigating agency.
12. What orders were passed in those cases by the lowers courts after the matters were remanded back to them, by this Court is not known.
13. With utmost respect, in my opinion, these judgments cannot be construed as laying down any proposition of law. These judgments cannot be construed as laying down that 'irrespective of whether or not there are sufficient grounds for passing summoning orders against the accused, merely because a Magistrate has used a proforma for issuing summoning order, the summoning order becomes bad and illegal'. It is not clear from the said decisions whether in those cases there was, (or was not) sufficient material, or sufficient grounds, for taking cognizance.
14. It is quite elementary that where the charge sheet discloses sufficient material for proceeding against an accused, this Court will not interfere with the summoning order, just because the Magistrate has used a typed proforma. Ultimately, the question would be of application of mind. An order written or typewritten, though not in any particular form or proforma, may still suffer from non-application of
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