A summoning order passed by a Magistrate on a printed proforma without applying judicial mind is unsustainable and liable to be quashed.

Court No. - 81

Case :- APPLICATION U/S 482 No. - 18352 of 2021

Applicant :- Kunwer Pal Singh

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Shishir Kumar Tiwari

Counsel for Opposite Party :- G.A.

Hon'ble Sanjay Kumar Singh,J.

Heard learned counsel for the applicant, learned A.G.A. for the

State of U.P./opposite parties and perused the record.

The instant application has been preferred by the applicant with

a prayer to quash the summoning order dated 29.01.2018 and

entire proceeding of Complaint Case No. 484 of 2018 (State Vs.

Kunwer Pal Singh), under Section 4 and 21 of the Mines and

Minerals (Development and Regulation) Act, 1957, Police

Station-Kotwali Dehat, District-Etah, pending in the court of

learned Chief Judicial Magistrate, Etah.

Record reflects that a complaint under Sections 4 and 21 of the

Mines and Minerals (Development and Regulation) Act, 1957

and under Rules 3, 57 and 70 of the Uttar Pradesh Minor

Minerals (Concession) Rules, 1963 was filed on 20.01.2018 by

the opposite party no. 2/Mines Inspector, Etah against the

applicant, on which learned Chief Judicial Magistrate, Etah vide

order dated 29.01.2018 took cognizance and summoned the

applicant under Section 4 and 21 of the Mines and Minerals

(Development and Regulation) Act, 1957 on a printed

proforma.

Learned counsel for the applicant assailing the impugned

summoning order dated 29.01.2018 submits that the learned

Chief Judicial Magistrate has not applied his judicial mind in

passing the summoning order dated 29.01.2018, as the same has

been passed on a printed proforma already prepared for

summoning the accused in a police case after submission of

charge sheet, whereas in this case complaint has been filed by

the opposite party no. 2 and there is no police report under

Section 173(2) Cr.P.C. It is next submitted that the applicant has

been summoned without following due procedure provided for

the compliant case under Chapter XIV and XV Cr.P.C.,

therefore, the same is not sustainable and liable to be quashed.

Learned A.G.A. has also admitted that procedure of complaint

case has not been followed in this case and impugned

summoning order dated 29.01.2018 has been passed on a

printed proforma by filling up the blanks, which has been

prepared for summoning the accused after submission of charge

sheet in police case and prayed that the matter may be

remanded to the concerned Chief Judicial Magistrate with the

direction to pass a fresh order.

Having heard the arguments of learned counsel for the parties, it

is relevant to mentioned that it is well settled that before a

Magistrate can be said to have taken cognizance of an offence,

it is 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. It needs little emphasis that it is

only when the Magistrate applies his mind and is satisfied that

the allegations, if proved, would constitute an offence and

decides to initiate proceedings against the alleged offender, that

it can be positively stated that he has taken cognizance of the

offence.

Cognizance of an offence is taken by the Magistrate under

Chapter XIV Section 190 of the Code of Criminal Procedure,

1973. Chapter XV Cr.P.C. deals with the further procedure for

dealing with "Complaints To Magistrate". Chapter XVI Cr.P.C.

deals with "Commencement of Proceeding before Magistrate".

It is very strange that in the present case learned Chief Judicial

Magistrate has not applied his mind and even did not take pain

to go through the complaint and applicant has been summoned

on a printed proforma, in which the name of the accused and

other details of the case have been filled up by hand. Even

learned Chief Judicial Magistrate did not bother