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2020 Supreme(All) 167
IN THE HIGH COURT OF ALLAHABAD
Suresh Kumar Gupta, J.
Kaju And Anr. - Applicant
Versus
State of U.P. And Anr. - Opposite Party
Application U/S 482 No. - 2071 of 2020
Decided On : 27-01-2020
For the Applicant : Brij Raj, Ramsagar Yadav
Headnote:
Code of Criminal Procedure, 1973 – Sections 190, 482 – Indian Penal Code, 1860 – Sections 308, 504 – Contention of counsel for applicants is that applicants have been falsely implicated in case and trial court without disclosing words that prima facie no case is made out against applicants, cognizance order is passed by Magistrate without application of mind and on this basis counsel for applicant submitted that cognizance order is bad in eye of law and is liable to quash – Held, It cannot be said that no offence is made out against applicants – All submission made at bar relates to disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C – At this stage only prima facie case is to be seen in light of law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 –Disputed defence of accused cannot be considered at this stage – Moreover, applicants have got right of discharge according to provisions prescribed in Cr.P.C. as case may be through a proper application for said purpose and he is free to take all submissions in discharge application before Trial Court –Prayer for quashing entire proceedings of criminal case, cognizance order as well as charge sheet is refused – Application Disposed of. (Paras 17 to 20)
Facts of Case:
Contention of counsel for applicants is that applicants have been falsely implicated in case and trial court without disclosing words that prima facie no case is made out against applicants, cognizance order is passed by Magistrate without application of mind and on this basis counsel for applicant submitted that cognizance order is bad in eye of law and is liable to quash.
Findings of Court:
It cannot be said that no offence is made out against applicants – All submission made at bar relates to disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C – At this stage only prima facie case is to be seen in light of law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 –Disputed defence of accused cannot be considered at this stage – Moreover, applicants have got right of discharge according to provisions prescribed in Cr.P.C. as case may be through a proper application for said purpose and he is free to take all submissions in discharge application before Trial Court –Prayer for quashing entire proceedings of criminal case, cognizance order as well as charge sheet is refused.
Result: Application Disposed of
JUDGMENT :
1. Heard learned counsel for the applicants and learned A.G.A. for the State.
2. This application under Section 482, Cr.P.C. has been filed for quashing the entire criminal proceedings of complaint case No. 2018 of 2018 arising out of case crime No. 163 of 2017, under Sections 308, 504 IPC, police station- Kotwali Katra, district Mirzapur as well as charge sheet dated 17.12.2017 and cognizance order dated 6.4.2018, pending in the court of Chief Judicial Magistrate, District Mirzapur.
3. The contention of the counsel for the applicants is that the applicants have been falsely implicated in this case and the learned trial court without disclosing the words that the prima facie no case is made out against the applicants, cognizance order is passed by the learned Magistrate without application of mind and on this basis the learned counsel for the applicant submitted that the congizance order is bad in the eye of law and is liable to quash.
4. Learned counsel for the applicant also relied upon paragaraph Nos. 6 and 12 of the judgment passed by Hon'ble Allahabad High Court in the case of Akash Garg Vs. State of U.P. reported in [2011 (11) ADJ 849].
"6. It is well settled that the Magistrate is not bound by the conclusion of the Investigating Officer. He is competent under law to form his own independent opinion on the basis of the materials collected during the investigation. The Magistrate may or may not agree with the conclusion of the Investigating Officer. If the Investigating Officer submits charge sheet, in that eventuality the Magistrate may differ from the charge sheet and refuse to take cognizance by holding that no case is made out. In a case where the final report is submitted the Magistrate may on perusal of the materials placed in support of the final report opine that the conclusion of the Investigating Officer is not correct and the offence is made out. In that eventuality, the Magistrate may reject the final report and take cognizance of the offence.
12. It is also well settled that at the stage of taking cognizance of an offence, the Magistrate is not required to examine thoroughly the merits and demerits of the case and to record a final verdict. At that stage he is not required to record even reasons, as expression of reasons in support of the cognizance may result in causing prejudice to the rights of the parties (complainant or accused) and may also in due course result in prejudicing the trial. However, the order of the Magistrate must reflect that he has applied his mind to the facts of the case. In other words at the stage of taking cognizance what is required from the Magistrate is to apply his mind to the facts of the case including the evidence collected during the investigation and to see whether or not there is sufficient ground (prima facie case) to proceed with the case. The law does not require the Magistrate to record reasons for taking cognizance of an offence."
5. What is meant by 'taking cognizance' in regard to an offence by a competent Magistrate is not defined or described in the Code of Criminal Procedure, 1973 (Cr.P.C.) or any other act. However the term has acquired a definite connotation through well settled judicial pronouncements.
6. The term 'taking cognizance' actually means 'become aware of', but in reference to a Court or a Judge, it means 'to take notice of judicially'. The term has no mystic significance in criminal law. In practice 'taking cognizance' means taking notice of an offence for initiation of proceedings under Section 190 Cr.P.C.
7. 'Cognizance' refers to the point when the court first takes judicial notice of an offence by not only applying its mind to the contents of the complaint/police report, but also proceeding further as provided further in Chapter XIV of the Cr.P.C.
8. Taking cognizance includes either taking steps to see whether there is basis for initiating a judicial proceeding or initiating a judicial proceeding against an offender by the Magistrate.
9. Ordina
