Taking cognizance of an offence requires the Magistrate to apply their mind to the material on record and record satisfaction that a prima facie case exists; summoning an accused via a cryptic order without assigned reasons is legally unsustainable and liable to be quashed.

ORDER

This Criminal Petition is filed by the petitioner/accused seeking to quash the proceedings in C.C.No.10959 of 2021 pending on the file of the VIII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, for the offences punishable under Section 420 of the Indian Penal Code, 1860 and 12(1)b) of the Indian Passport Act, 1967 .

2. Heard Sri Mohammed Adam, learned counsel for the petitioner and Sri Jithendar Rao Veeramalla, learned Additional Public Prosecutor for respondent No.1.

3. With the consent of both the learned counsel, the criminal petition is disposed of at the admission stage on the ground that even according to the learned counsel for the petitioner, the matter before the learned Trial Court has not riped for the trial yet. In view of the same, notice in respect of respondent No.2/defacto complainant is dispensed with.

4. During the course of hearing, learned counsel for the petitioner submitted that the learned Magistrate without recording satisfaction and without assigning any reasons has taken cognizance and issued summons to the accused and the same is contrary to the principle laid down in Sunil Bharati Mittal v. Central Bureau of Investigation , (2015) 4 SCC 609

5. The above said submissions are not opposed by the learned Additional Public Prosecutor.

6. Having considered the rival submissions made by the respective parties and after perusal of the material available on record it reveals that the learned Magistrate has taken cognizance without applying his mind and without assigning any reasons, especially taken cognizance against the accused and not against the 2021.

7. It is very much relevant to mention that in Sunil Bharati Mittal supra the Hon’ble Supreme Court held that the order of issuing process to accused to face criminal trial is a serious issue. Such summoning cannot be done on mere asking and the Court has to record reasons for summoning a person. In GHCL Employees Stock Option Trust v. India Infoline Limited , (2013) 4 SCC 505, the Hon’ble Apex Court found fault with the order of the Magistrate in issuing summons when the Magistrate has not recorded his satisfaction about the prima facie case against the accused. In Chief Enforcemnet Officer v. Videocon International Limited, offences through cognizance order passed in C.C.No.10959 of , the Hon’ble Supreme Court while discussing the expression ‘cognizance’ held that in criminal law ‘cognizance’ means becoming aware of and the word used with respect to Court or a Judge initiating proceedings in respect of an offence. Taking cognizance would involve application of mind by the Magistrate to the suspected commission of an offence. The Hon’ble Supreme Court in Sunil Bharati Mittal’s case (Supra), further held as follows: (2008) 2 SCC 492

“Sine Qua Non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.”

8. In Fakhruddin Ahmad v. State of Uttaranchal and another , (2008) 17 SCC 157, it is held as follows:

“Nevertheless, it is well settled that before a Magistrate ca