# Anil Katiyar & Anr v. State of U.P. Opp. Party

- **Citation:** (2024) 6 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-13
- **Case number:** Application u/s 482 No. 640 of 2016
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-katiyar-anr-v-state-of-u-p-opp-party-52121
- **Pages:** 15

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 190, 190(1)(b), 173
& 482 - The Prevention of Corruption Act,
1988 - Sections 13(1)(d), 13(2) & 19: -
Application u/s 482 - for quashing of impugned
summoning order as well as the entire criminal
proceeding initiated under PC Act, 1988 - both
the applicants had no role in conducting the
examination or type test during Selection in
question alleged to be held in year 2008, they
were merely members of selection committee -
prior to this proceeding, twice inquiries were
conducted against applicants, but they did not
assigned any specific role - further, in absence
of requisite sanction orders required u/section
19 of PC Act, 1988, the impugned proceeding,
initiated against applicants not sustainable -
held, in absence of procedural requirement
under Section 19 and in absence of any
substantive evidence on record implicating the
applicants
in
criminal
misconduct,
the
cognizance taken by the court below is legally
untenable - hence, instant application is
allowed. (Para - 21, 22, 44)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 190, 190(1)(b), 173
& 482 - The Prevention of Corruption Act,
1988 - Sections 13(1)(d), 13(2) & 19: -
Application u/s 482 - for quashing of impugned
summoning order as well as entire criminal
proceeding - - court finds that, in spite of
several orders passed by the Hon'ble Apex court
as well as this Court, the learned Magistrates
are still passing orders and taking cognizance on
printed proforma, by filing up the banks, without
application of judicial mind and is objectionable
and deserves to be deprecated - Hence,
summoning and cognizance order is bad in eyes
of law - Accordingly, directions issued to all the
District Courts of Uttar Pradesh for necessary
compliance. (Para -41, 42, 46)
142 INDIAN LAW REPORTS ALLAHABAD SERIES
Application Allowed. ( E-11)

List of Cases cited:

## Text

_Characters 0–39,863 of 48,987. This is a partial read: ask again with offset=39863 for what follows._

6 All. Anil Katiyar & Anr. Vs. State of U.P.
141
sixth respondent respectively, would be
revised and redetermined by respondent
Nos.3 and 4, accordingly.

27. In the result, this writ petition
succeeds and is allowed. The impugned
order dated 24.02.2014 passed by the
District Inspector of Schools, Bulandshahar
is hereby quashed. A mandamus is issued
in the terms indicated above, by which each
of the respondent Nos.1 to 6 shall be
bound.

28. Costs easy.

29. It is ordered, accordingly.

30. Let a copy of this judgment be
communicated to the Secretary (Secondary
Education), Government of U.P., Lucknow,
the Secretary, U.P. Secondary Education
Services
Selection
Board,
Alengang,
Prayagraj, the Joint Director of Education,
Meerut
Region,
Meerut,
the
District
Inspector of Schools, Bulandshahr by the
Registrar
(Compliance)
and
to
the
Authorized Controller, Raja Mahendra
Pratap Inter College, Jasnawali Khurd,
District Bulandshahr and Jaswant Giri son
of Richhpal, resident of Preeti Vihar, Gali
No.1,
Near
Sanjeev
General
Store,
Bulandshahr through the Civil Judge (Sr.
Div.),
Bulandshahr
by
the
Registrar
(Compliance).
----------
(2024) 6 ILRA 141
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED LUCKNOW 13.06.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application u/s 482 No. 640 of 2016

Anil Katiyar & Anr. ...Applicants
Versus
State of U.P. ...Opp. Party

Counsel for the Applicants:
Nandit Kumar Srivastava, Pranjal Krishna,
Tapeshwar Kumar Maurya

Counsel for the Opp. Party:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 190, 190(1)(b), 173
& 482 - The Prevention of Corruption Act,
1988 - Sections 13(1)(d), 13(2) & 19: -
Application u/s 482 - for quashing of impugned
summoning order as well as the entire criminal
proceeding initiated under PC Act, 1988 - both
the applicants had no role in conducting the
examination or type test during Selection in
question alleged to be held in year 2008, they
were merely members of selection committee -
prior to this proceeding, twice inquiries were
conducted against applicants, but they did not
assigned any specific role - further, in absence
of requisite sanction orders required u/section
19 of PC Act, 1988, the impugned proceeding,
initiated against applicants not sustainable -
held, in absence of procedural requirement
under Section 19 and in absence of any
substantive evidence on record implicating the
applicants
in
criminal
misconduct,
the
cognizance taken by the court below is legally
untenable - hence, instant application is
allowed. (Para - 21, 22, 44)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 190, 190(1)(b), 173
& 482 - The Prevention of Corruption Act,
1988 - Sections 13(1)(d), 13(2) & 19: -
Application u/s 482 - for quashing of impugned
summoning order as well as entire criminal
proceeding - - court finds that, in spite of
several orders passed by the Hon'ble Apex court
as well as this Court, the learned Magistrates
are still passing orders and taking cognizance on
printed proforma, by filing up the banks, without
application of judicial mind and is objectionable
and deserves to be deprecated - Hence,
summoning and cognizance order is bad in eyes
of law - Accordingly, directions issued to all the
District Courts of Uttar Pradesh for necessary
compliance. (Para -41, 42, 46)
142 INDIAN LAW REPORTS ALLAHABAD SERIES
Application Allowed. ( E-11)

List of Cases cited:

1. Dilwar Vs St. of Har. (2018, 16 SCC 521),

2. Menka Gandhi Vs U.O.I. (AIR 1978 SC 597),

3. Hussainara Khatoon (I) Vs. St. of Bihar (1980
1 SCC 81),

4. Abdul Rehman Antulay Vs. RS Nayak (1992 1
SCC 225),

5. P. Ramchandra Rao Vs. St. of Karn. (2002 4
SCC 578),

6. H. N. Rishbud Vs St. of Delhi (AIR 1955 SC
196),

7. Bassaruddin & ors. Vs. St. of UP & ors.(2011
(1) JIC 335 (All) (LB),

8. Bhushan Kumar & anr. Vs St. (NCT of Delhi)
& anr.(AIR 2012 SC 1747),

9. Sunil Bharti Mittal Vs. C.B.I. (AIR 2015 SC
923),

10. Darshan Singh Ram Kishan Vs St. of Mah.
(1971 2 SCC 654),

11. Ankit Vs St. of UP & anr.(Application U/s 482
No. 19647 of 2009 decided on Dt. 15.10.2009),

12. Kavi Ahmad Vs St. of U.P. & anr.(Criminal
Revision NO. 3209/2010

13. Abdul Rasheed & ors. Vs St. of U.P. &
ors.(2010 (3) JIC 761 (All),

14. Lalan Kumar Singh & ors. Vs St. of Mah.
(2022 SCC Online SC 1383),

15. Haryana Vs Bhajan Lal (1992 Supp. (1) SCC
335),

16. R P Kapoor Vs St. of Pun. (AIR 1960 SC
866),

17. St. of Bihar Vs P.P. Sharma (1992 SCC (Crl.)
192),

18. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr.(2005 SCC (Cril.) 283),

19. Neeharika Infrastructure Pvt. Ltd. Vs. St. of
Mah. (AIR 2021 SC 1918),

20. S W Palankattkar & ors. Vs St. of Bihar
(2002 (33) ACC 168),

21. M/s Pepsi Food Ltd. & anr. Vs S.J.M. & ors.
(1998 (5) SCC 749).

(Delivered by Hon'ble Shamim Ahmed, J.)

 1. Heard Sri Pranjal Krishna,
Advocate assisted by Sri Saurabh Shukla,
learned counsel for the applicants and Sri
Ajay Kumar Agnihotri, learned A.G.A.
alongwith Sri Ashok Kumar Singh, learned
A.G.A.-I for the State.

2. The present application under
Section 482 Cr.P.C. has been filed with a
prayer to quash the entire proceedings of
Criminal Case No.319 of 2015 (State Vs.
Awadhu Ram & Others), under Sections
13(1)(d) and 13(2) of The Prevention of
Corruption Act, 1988 arising out of Crime
No.102/2014, Police Station Husainganj,
District Lucknow, investigated by CIS(1)
CB CID, Lucknow pending in the Court of
learned Special Judge (P.C. Act), Lucknow
as
well
as
to
quash
the
cognizance/summoning
order
dated
08.09.2015.

3. Learned counsel for the
applicants has filed a supplementary
affidavit on 17.05.2024 in the Court, which
was taken on record.

4. Learned counsel for the
applicants submitted that the present matter
pertains to the appointment of Junior
Clerks in the Office of the Engineer-inChief and Circle cadre of the Irrigation
6 All. Anil Katiyar & Anr. Vs. State of U.P.
143
Department
in
the
year
2008.
The
applicants were merely members of the
Selection Committee constituted for this
purpose.

5. Learned counsel for the
applicants further submitted that the
selection procedure comprised two stages:
a typing test and an interview. The
applicants had no role in conducting or
evaluating the typing test, which was
conducted by experts from the Directorate
of Technical Education and Employment
and Training Department, Lucknow.

6. Learned counsel for the
applicants further submitted that the
interview was conducted as per the Uttar
Pradesh
Procedure
for
Direct
Recruitment for Group 'C' Post Rules,
2003. The applicants had no role in
evaluating the educational and sports
qualifications of the candidates, which
was done by a Sub-Committee.

7 . Learned counsel for the
applicants further submitted that the
final results were compiled based on the
typing test results provided by the
experts and the interview conducted by
the Selection Committee. The applicants
performed their duties in accordance
with the rules and have not committed
any wrong.

8. Learned counsel for the
applicants further submitted that two
inquiries were conducted by Mr. Radha
Charan and Mr. A.N. Gupta in 2011 and
2012 respectively and they did not
assign any specific role or criminal
conspiracy to the applicants. Copies of
the Enquiry Reports dated 14.11.2011
and
11.10.2012
are
annexed
as
Annexures No. 11 and 14 respectively
alongwith the affidavit filed in support
of the present application under Section
482 Cr.P.C.

9. Learned counsel for the
applicants further submitted that the
applicants herein are law-abiding senior
citizens, retired from the Irrigation
Department,
Government
of
Uttar
Pradesh,
with
unblemished
service
records. The Applicant No. 1 retired as
Chief Engineer on 31.12.2014 whereas
the
Applicant
No.
2
retired
as
Superintending Engineer on 30.04.2009.

10. Learned counsel for the
applicants further submitted that the
prosecution has failed to produce any
material evidence against the applicants
and the cognizance taken by the Court of
Learned
Special
Judge
(P.C.
Act),
Lucknow,
is
without
sanction
for
prosecution as required under Section 19 of
the Prevention of Corruption Act, 1988, for
Mr. Awadhu Ram, who is still a public
servant. The allegations in the Police
Report (Chargesheet) do not constitute any
prima facie offence against the applicants
and are absurd and inherently improbable.

11. Learned counsel for the
applicants further submitted that by the
order dated 08.09.2015 cognizance taken
by the learned Magistrate on printed
proforma without assigning any reason is
abused of process of law.

12. Learned counsel for the
applicants further submitted that after
submission of charge sheet the applicants
have been summoned mechanically by
order dated 08.09.2015 and the learned trial
court while summoning the applicants had
materially erred and did not follow the
dictum of law as propounded by the
144 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Supreme Court in various cases
that summoning in criminal case is a
serious matter and the learned trial court
without
dwelling
into
material
and
visualizing the case on the touch stone of
probability should not summon accused
person to face criminal trial. The learned
trial court has summoned the applicants
through a printed proforma order, which is
wholly illegal.

13. On the other hand, learned
A.G.A-I for the State opposed the argument
advanced by learned Counsel for the
applicants and submitted that all legal
procedures have been duly followed in the
process of investigation and filing of the
chargesheet. The procedural requirements,
including those under the Prevention of
Corruption Act, 1988, have been complied
with, justifying the learned trial court's
decision to proceed with the case.

14. Learned A.G.A-I for the State
further submitted that the chargesheet and
accompanying evidences established a prima
facie case against the applicants under
Sections 13(1)(d) and 13(2) of the Prevention
of Corruption Act, 1988. The allegations and
evidence suggest that the applicants, while
serving
as members of
the Selection
Committee, engaged in corrupt practices to
derive undue benefits.

15. Learned A.G.A-I for the State
further submitted that the learned trial court
had upheld the cognizance of chargesheet and
subsequent prosecutions in corruption cases
based on substantial evidence. The trial court's
decision to take cognizance and summon the
applicants is totally legal and does not requrire
any interference by this Hon'ble Court.

16.

After
considering
the
arguments advanced by learned counsel for
the parties and perusal of record in light of
the submissions made at the Bar and after
taking an overall view of all the facts and
circumstances of this case, the nature of
evidence and the contents of the F.I.R. as
well as summoning order dated 08.09.2015,
this court deems it appropriate to discuss
the relevant provisions of the Prevention of
Corruption Act, 1988.

17. Section 13(1)(d) of the
Prevention of Corruption Act, 1988

 "Section 13(1)(d): This section
defines specific actions that constitute
"criminal misconduct" by a public servant.
According to this provision, a public
servant is said to commit the offense of
criminal misconduct if he:

 (i) by corrupt or illegal means,
obtains for himself or for any other person
any valuable thing or pecuniary advantage;
or

 (ii) by abusing his position as a
public servant, obtains for himself or for
any other person any valuable thing or
pecuniary advantage; or

 (iii) while holding office as a
public servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest."

18.

Section
13(2)
of
the
Prevention of Corruption Act, 1988

 "Section
13(2):
This
section
prescribes the punishment for the offense
defined in Section 13(1). It states that any
public servant who commits criminal
misconduct as defined in Section 13(1)
shall be punishable with imprisonment for
a term not less than four years but which
6 All. Anil Katiyar & Anr. Vs. State of U.P.
145
may extend to ten years, and shall also be
liable to fine."

19. Section 19 of the Prevention
of Corruption Act, 1988

 "19. Previous sanction necessary
for prosecution.

 (1)
No
Court
shall
take
cognizance of an offence punishable under
[sections 7, 11, 13 and 15] [Substituted
'sections 7, 10, 11, 13 and 15' by Act No. 16
of 2018, dated 26.7.2018.] alleged to have
been committed by a public servant, except
with the previous sanction,

 (a) in the case of a person [who is
employed, or as the case may be, was at the
time of commission of the alleged offence
employed] [Substituted 'who is employed'
by Act No. 16 of 2018, dated 26.7.2018.] in
connection with the affairs of the Union
and is not removable from his office save by
or with the sanction of the Central
Government, of that Government;

 (b) in the case of a person [who is
employed, or as the case may be, was at the
time of commission of the alleged offence
employed] [Substituted 'who is employed'
by Act No. 16 of 2018, dated 26.7.2018.] in
connection with the affairs of a State and is
not removable from his office save by or
with sanction of the State Government, of
that Government;

 (c) in the case of any other
person, of the authority competent to
remove him from his office.

 [Provided that no request can be
made, by a person other than a police
officer or an officer of an investigation
agency or other law enforcement authority,
to
the
appropriate
Government
or
competent authority, as the case may be,
for
the
previous
sanction
of
such
Government
or
authority
for
taking
cognizance by the court of any of the
offences specified in this sub-section,
unless-

 (i) such person has filed a
complaint in a competent court about the
alleged offences for which the public
servant is sought to be prosecuted; and

 (ii) the court has not dismissed
the complaint under section 203 of the
Code of Criminal Procedure, 1973 and
directed the complainant to obtain the
sanction for prosecution against the public
servant for further proceeding:

 Provided further that in the case
of request from the person other than a
police
officer
or
an officer
of
an
investigation
agency
or
other
law
enforcement authority, the appropriate
Government or competent authority shall
not accord sanction to prosecute a public
servant without providing an opportunity of
being heard to the concerned public
servant:Provided also that the appropriate
Government or any competent authority
shall, after the receipt of the proposal
requiring sanction for prosecution of a
public servant under this sub-section,
endeavour to convey the decision on such
proposal within a period of three months
from the date of its receipt:Provided also
that in case where, for the purpose of grant
of
sanction
for
prosecution,
legal
consultation is required, such period may,
for the reasons to be recorded in writing, be
extended by a further period of one
month:Provided also that the Central
Government may, for the purpose of
sanction for prosecution of a public
146 INDIAN LAW REPORTS ALLAHABAD SERIES
servant, presecribe such guidelines as it
considers necessary.Explanation. - For the
purposes of sub-section (1), the expression
"public servant" includes such person-

(a) who has ceased to hold the
office during which the offence is alleged to
have been committed; or

(b) who has ceased to hold the
office during which the offence is alleged to
have been committed and is holding an
office other than the office during which the
offence is alleged to have been committed.]

(2)
Where
for
any
reason
whatsoever any doubt arises as to whether
the previous sanction as required under
sub-section (1) should be given by the
Central
Government
or
the
State
Government or any other authority, such
sanction shall be given by that Government
or authority which would have been
competent to remove the public servant
from his office at the time when the offence
was alleged to have been committed.

(3)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974),

(a) no finding, sentence or order
passed by a special Judge shall be reversed
or
altered
by
a
Court
in
appeal,
confirmation or revision on the ground of
the absence of, or any error, omission or
irregularity in, the sanction required under
sub-section (1), unless in the opinion of
that Court, a failure of justice has in fact
been occasioned thereby;

(b) no Court shall stay the
proceedings under this Act on the ground of
any error, omission or irregularity in the
sanction granted by the authority, unless it
is satisfied that such error, omission or
irregularity has resulted in a failure of
justice;

(c) no Court shall stay the
proceedings under this Act on any other
ground and no Court shall exercise the
powers of revision in relation to any
interlocutory order passed in any inquiry,
trial, appeal or other proceedings.

(4) In determining under subsection (3) whether the absence of, or any
error, omission or irregularity in, such
sanction has occasioned or resulted in a
failure of justice, the Court shall have
regard to the fact whether the objection
could and should have been raised at any
earlier
stage
in
the
proceedings.Explanation. For the purposes
of this section,

(a) error includes competency of
the authority to grant sanction;

(b)
a
sanction
required
for
prosecution includes reference to any
requirement that the prosecution shall be at
the instance of a specified authority or with
the sanction of a specified person or any
requirement of a similar nature.

20. After careful scruitiny of the
afroesaid legal provisions, this Court finds
that the purpose of prosecution sanction is
to provide a safeguard against frivolous or
vexatious litigation. It ensures that the
prosecution of a public servant is based on
substantial grounds and is scrutinized by a
higher authority before proceeding to trial.
The absence of requisite sanction under
Section 19 of the Prevention of Corruption
Act, 1988 is a critical procedural defect that
invalidates the cognizance and subsequent
proceedings. As such, the prosecutions
6 All. Anil Katiyar & Anr. Vs. State of U.P.
147
initiated without the necessary sanction are
deemed null and void.

21. In the present case, the
applicants are accused under Sections
13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988. However, several
crucial points undermine the legitimacy of
the
prosecution,
which
are
being
reproduced hereunder:-

 (i) The applicants were merely
members of the Selection Committee for
the appointment of Junior Clerks in the
Irrigation Department. Their duties were
confined to conducting interviews and they
had no role in the typing test evaluation or
the
verification
of
candidates'
qualifications.

 (ii)
The
selection
process
included a typing test and an interview. It is
clear from the records that the applicants
had no role in conducting or evaluating the
typing test, which was managed by experts
from
the
Directorate
of
Technical
Education and Employment and Training
Department,
Lucknow.
Similarly,
the
evaluation of educational and sports
qualifications was undertaken by a SubCommittee, independent of the applicants'
influence.

 (iii) Two inquiries conducted in
the year 2011 and 2012 by Mr. Radha
Charan and Mr. A.N. Gupta, respectively,
did not assign any specific role or criminal
conspiracy to the applicants. The Inquiry
Reports dated 14.11.2011 and 11.10.2012
do not implicate the applicants in any
criminal activity.

 (iv) The prosecution has not
produced any material evidence against the
applicants. The cognizance taken by the
Court of Learned Special Judge (P.C. Act),
Lucknow, is without the necessary sanction
for prosecution as provided under Section
19 of the Prevention of Corruption Act,
1988 for Mr. Awadhu Ram, who remains a
public servant. The allegations in the
chargesheet do not constitute any prima
facie offence against the applicants and are
considered
absurd
and
inherently
improbable.

 (v) The prosecution has failed to
produce material evidence against the
applicants that would justify the allegations
under Sections 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988. The
cognizance and subsequent proceedings
appear to lack proper application of judicial
mind and are based on insufficient grounds.

22. The procedural requirements of
Section 19 of the Prevention of Corruption
Act, 1988, and the absence of any
substantive
evidence
implicating
the
applicants in criminal misconduct, the
cognizance taken by the Court of the
Learned
Special
Judge
(P.C.
Act),
Lucknow, is legally untenable. The failure
to obtain the mandatory sanction as
provided
under
Section
19
of
the
Prevention of Corruption Act, 1988 vitiates
the entire prosecution process. Therefore,
the applicants are entitled to have the
criminal proceedings quashed.

23. Further, this Court is also of
the view that an another issue for
consideration before this Court is that
whether
the
learned
Magistrate
may
summon the accused person on a printed
proforma without assigning any reason and
take cognizance on police report filed
under Sections 173 of Cr.P.C. In this
regard, it is relevant to mention here that a
Court can take cognizance of an offence
148 INDIAN LAW REPORTS ALLAHABAD SERIES
only when condition requisite for initiation
of proceedings before it as set out in
Chapter XIV of the Code are fulfilled.
Otherwise, the Court does not obtain
jurisdiction to try the offences under
section 190 (1) of the Cr.P.C. provided that
"subject to the provisions of this Chapter,
any Magistrate of the first class, and any
Magistrate of the second class specially
empowered in this behalf under sub-section
(2), may take cognizance of any offence-

 (a) upon receiving a complaint of
facts which constitute such offence,

(b) upon a police report of
such facts;

 (c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

 (2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub-section
(1) of such offences as are within his
competence to inquire into or try."

24. At this juncture, it is fruitful to
have a look so far as the law pertaining to
summoning of the accused persons, by
taking cognizance on a police report filed
under section 173 of the Cr.P.C., is
concerned and the perusal of the case law
mentioned herein below would clearly
reveal that cognizance of an offence on
complaint is taken for the purpose of
issuing process to the accused. Since, it is a
process of taking judicial notice of certain
facts which constitute an offence, there has
to be application of mind as to whether the
material collected by the Investigating
Officer results in sufficient grounds to
proceed further and would constitute
violation of law so as to call a person to
appear before the criminal court to face
trial. This discretion puts a responsibility
on the magistrate concerned to act
judiciously keeping in view the facts of the
particular case as well as the law on the
subject and the orders of Magistrate does
not suffers from non-application of judicial
mind while taking cognizance of the
offence.

25. Fair and proper investigation is
the primary duty of the Investigating
Officer. No investigating agency can take
unduly
long
time
in
completing
investigation. There is implicit right under
Article 21 for speedy trial which in turn
encompasses speedy investigation, inquiry,
appeal, revision and retrial. There is clear
need
for
time
line
in
completing
investigation for having in-house oversight
mechanism wherein accountability for
adhering to lay down timeline, can be fixed
at different levels in the hierarchy, vide
Dilawar vs. State of Haryana, (2018) 16
SCC 521, Menka Gandhi vs. Union of
India, AIR 1978 SC 597, Hussainara
Khatoon (I) vs. State of Bihar, (1980)1
SCC 81, Abdul Rehman Antulay vs. R.S.
Nayak, (1992) 1 SCC 225 and P.
Ramchandra Rao vs. State of Karnatka,
(2002) 4 SCC 578.

26.

For
the
purposes
of
investigation, offences are divided into two
categories
"cognizable"
and
"noncognizable".
When
information
of
a
cognizable offence is received or such
commission is suspected, the proper police
officer has the authority to enter in the
investigation of the same but where the
information relates to a non-cognizable
offence, he shall not investigate it without
the order of the competent Magistrate.
Investigation includes all the proceedings
6 All. Anil Katiyar & Anr. Vs. State of U.P.
149
under the Cr.P.C. for the collection of
evidence conducted by a police officer or
by any person other than a Magistrate (who
is authorised by a Magistrate in his behalf).
Investigation consists of steps, namely (i)
proceeding to spot, (ii) ascertainment of the
facts and circumstances of the case, (iii)
discovery and arrest of the suspected
offender,
(iv)
collection
of
evidence
relating to the commission of the offence
and (v) formation of opinion as to whether
on the material collected therein to place
the accused before a Magistrate for trial
and if so to take necessary steps for the
same by filing a charge sheet under Section
173, Cr.P.C., vide H.N. Rishbud vs. State
of Delhi, AIR 1955 SC 196. Thereafter, the
learned Magistrate has to take cognizance
after application of judicial mind and by
reasoned order and not in mechanical
manner.

27. In the case of Basaruddin &
others Vs. State of U.P. and others, 2011
(1) JIC 335 (All)(LB), the Hon'ble Court
was pleased to observed as under:-

 "From a perusal of the impugned
order, it appears that the learned Magistrate
on the complaint filed by the complainant
has summoned the accused in a mechanical
way filling the date in the typed proforma.
Learned
Magistrate
while
taking
cognizance of the offence on complaint was
expected to go through the allegations
made in the complaint and to satisfy
himself as to which offences were prima
facies, being made out against the accused
on basis of allegations made in the
complaint. It appears that the learned
Magistrate did not bother to go through the
allegations made in the complaint and
ascertain as to what offences were, prima
facie, being made out against the accused
on the basis of allegations made in the
complaint. Apparently, the impugned order
passed by the learned Magistrate suffers
from non-application of mind while taking
cognizance of the offence. The impugned
order is not well reasoned order, therefore,
the same is liable to be quashed and the
petition deserves to be allowed and the
matter may be remanded back to the
learned
Chief
Judicial
Magistrate,
Lakhimpur Kheri with direction to him to
go through the allegations made in the
complaint and ascertain as to what offences
against the accused were prima facie being
made out against the accused on the basis
of allegations made in the complaint and
pass fresh order, thereafter, he will proceed
according to law."

28. In the case of Bhushan Kumar
and Anr. v. State (NCT of Delhi) and Anr.,
AIR 2012 SC 1747, the Hon'ble Apex Court
was pleased to observe that Section 204 of
the Code does not mandate the Magistrate to
explicitly state the reasons for issuance of
summons. It clearly states that if in the
opinion of a Magistrate taking cognizance of
an offence, there is sufficient ground for
proceeding, then the summons may be
issued. This section mandates the Magistrate
to form an opinion as to whether there exists
a sufficient ground for summons to be issued
but it is nowhere mentioned in the section
that the explicit narration of the same is
mandatory, meaning thereby that it is not a
pre-requisite for deciding the validity of the
summons issued.

29. In the case of Sunil Bharti
Mittal v. Central Bureau of Investigation,
AIR 2015 SC 923, the Hon,ble Apex Court
was pleased to observe in paragraph no.47 of
the judgment as under:

 "47.
However,
the
words
"sufficient
grounds
for
proceeding"
150 INDIAN LAW REPORTS ALLAHABAD SERIES
appearing in the Section are of immense
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.."

30. In the case of Darshan Singh
Ram Kishan v. State of Maharashtra ,
(1971) 2 SCC 654, the Hon'ble Court was
pleased to observe that the process of
taking cognizance does not involve any
formal action, but it occurs as soon as the
Magistrate
applies
his
mind
to
the
allegations and, thereafter, takes judicial
notice of the offence. As provided by
Section 190 of the Code of Criminal
Procedure,
a
Magistrate
may
take
cognizance of an offence either, (a) upon
receiving a complaint, or (b) upon a police
report, or (c) upon information received
from a person other than a police officer or
even
upon his
own
information
or
suspicion that such an offence has been
committed. As has often been held, taking
cognizance does not involve any formal
action or indeed action of any kind but
occurs as soon as a Magistrate applies his
mind to the suspected commission of an
offence. Cognizance, therefore, takes place
at a point when a Magistrate first takes
judicial notice of an offence. This is the
position whether the Magistrate takes
cognizance of an offence on a complaint, or
on a police report, or upon information of a
person
other
than
a
police
officer.
Therefore,
when
a
Magistrate
takes
cognizance of an offence upon a police
report, prima facie he does so of the
offence or offences disclosed in such
report."

31. In the case of Ankit Vs. State
of
U.P.
And
Another
passed
in
Application U/S 482 No.19647 of 2009
decided on 15.10.2009, this Court was
pleased to observe in paragraph No.8 of the
judgment as under:-

 "8. In the beginning, the name of
the court, case number, state vs. ....... under
section ......... P.S. ......... District ......... case
crime No. ........ /2009 also have been
printed and blanks have been filled up by
mentioning the case number, name of the
accused, section, P.S. District etc. by some
employee. Below afore cited printed matter,
the following sentence has been mentioned
in
handwriting
"अभियुक्त
अंभित
िी
भिरफ्तारी मा0 उच्च न्यायायल द्वारा Crl. Writ
No. 19559/08 अंभित बनाम राज्य में पाररत
आदेश भदनांि 5.11.08 द्वारा आरोप पत्र प्राप्त
होने ति स्थभित थी।"

 Below aforesaid sentence, the
seal of the court containing name of Sri
Talevar
Singh,
the
then
Judicial
Magistrate-III, has been affixed and the
learned magistrate has put his short
signature (initial) over his name. The
manner in which the impugned order has
been prepared shows that the learned
magistrate did not at all apply his judicial
mind at the time of passing this order and
after the blanks were filled up by some
employee of the court, he has put his initial
on the seal of the court. This method of
passing judicial order is wholly illegal. If
for the shake of argument, it is assumed
that the blanks on the printed proforma
were filled up in the handwriting of learned
magistrate, even then the impugned order
would be illegal and invalid, because order
of taking cognizance of any other judicial
order cannot be passed by filling up blanks
on the printed proforma. Although as held
by this Court in the case of Megh Nath
Guptas & Anr V State of U.P. And Anr,
6 All. Anil Katiyar & Anr. Vs. State of U.P.
151
2008 (62) ACC 826, in which reference has
been made to the cases of Deputy Chief
Controller Import and Export Vs Roshan
Lal Agarwal, 2003 (4) ACC 686 (SC), UP
Pollution Control Board Vs Mohan
Meakins, 2000 (2) JIC 159 (SC): AIR
2000 SC 1456 and Kanti Bhadra Vs State
of West Bengal, 2000 (1) JIC 751 (SC):
2000 (40) ACC 441 (SC), the Magistrate is
not required to pass detailed reasoned
order at the time of taking cognizance on
the charge sheet, but it does not mean that
order of taking cognizance can be passed
by filling up the blanks on printed
proforma. At the time of passing any
judicial order including the order taking
cognizance on the charge sheet, the Court
is required to apply judicial mind and even
the order of taking cognizance cannot be
passed in mechanical manner. Therefore,
the impugned order is liable to be quashed
and the matter has to be sent back to the
Court below for passing fresh order on the
charge sheet after applying judicial mind."

32. In the case of Kavi Ahmad Vs.
State of U.P. and another passed in
Criminal Revision No. 3209 of 2010,
wherein order taking cognizance of offence
by the Magistrate under Section 190(1)(b)
on printed proforma without applying his
judicial mind towards the material collected
by the Investigating Officer has been held
illegal.

33. In the case of Abdul Rasheed
and others Vs. State of U.P. and another
2010 (3) JIC 761 (All). The relevant
observations and findings recorded in the
said case are quoted below:-

 "6. Whenever any police report or
complaint is filed before the Magistrate, he
has to apply his mind to the facts stated in
the report or complaint before taking
cognizance. If after applying his mind to
the facts of the case, the Magistrate comes
to the conclusion that there is sufficient
material to proceed with the matter, he may
take cognizance. In the present case, the
summoning order has been passed by
affixing a ready made seal of the
summoning order on a plain paper and the
learned Chief Judicial Magistrate had
merely entered the next date fixed in the
case in the blank portion of the ready made
order. Apparently the learned Magistrate
had not applied his mind to the facts of the
case before passing the order dated
20.12.2018, therefore, the impugned order
cannot be upheld.

 7. Judicial orders cannot be
allowed to be passed in a mechanical
manner either by filling in blank on a
printed proforma or by affixing a ready
made seal etc. of the order on a plain
paper. Such tendency must be deprecated
and cannot be allowed to perpetuate. This
reflects not only lack of application of mind
to the facts of the case but is also against
the settled judicial norms. Therefore, this
practice must be stopped forthwith."

34. In view of the above, this Court
finds and observes that the conduct of the
judicial officers concerned in passing
orders on printed proforma by filling up the
blanks without application of judicial mind
is objectionable and deserves to be
deprecated. The summoning of an accused
in a criminal case is a serious matter and
the order must reflect that Magistrate had
applied his mind to the facts as well as law
applicable thereto, whereas the impugned
summoning
order
was
passed
in
mechanical manner without application of
judicial mind and without satisfying
himself as to which offence were primafacie being made out against the applicants
152 INDIAN LAW REPORTS ALLAHABAD SERIES
on the basis of the allegations made by the
complainant.
Thus,
the
impugned
cognizance order passed by the learned
Magistrate is against the settled judicial
norms.

35. Further, Hon'ble the Supreme
Court of India in the case of Lalankumar
Singh
and
Others
vs.
State
of
Maharashtra reported in 2022 SCC
Online SC 1383 has specifically held in
paragraph No.38 that the order of issuance
of process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. Paragraph No.38
of Lalankumar Singh and Others (supra)
is being quoted hereunder:-

 "38. The order of issuance of
process is not an empty formality. The
Magistrate is required to apply his mind as
to whether sufficient ground for proceeding
exists in the case or not. The formation of
such an opinion is required to be stated in
the order itself. The order is liable to be set
aside if no reasons are given therein while
coming to the conclusion that there is a
prima facie case against the accused. No
doubt, that the order need not contain
detailed reasons. A reference in this respect
could be made to the judgment of this
Court in the case of Sunil Bharti Mittal v.
Central Bureau of Investigation, which
reads thus:

 "51. On the other hand, Section 204
of the Code deals with the issue of process, if
in the opinion of the Magistrate taking
cognizance of an offence, there is sufficient
ground for proceeding. This section relates to
commencement of a criminal proceeding. If
the Magistrate taking cognizance of a case (it
may be the Magistrate receiving the complaint
or to whom it has been transferred under
Section 192), upon a consideration of the
materials before him (i.e. the complaint,
examination of the complainant and his
witnesses, if present, or report of inquiry, if
any), thinks that there is a prima facie case for
proceeding in respect of an offence, he shall
issue process against the accused.

52. A wide discretion has been given
as to grant or refusal of process and it must be
judicially exercised. A person ought not to be
dragged into court merely because a
complaint has been filed. If a prima facie case
has been made out, the Magistrate ought to
issue process and it cannot be refused merely
because he thinks that it is unlikely to result in
a conviction.

 53. However, the words "sufficient
ground for proceeding" appearing in Section
204 are of immense importance. It is these
words which amply suggest that an opinion is
to be formed only after due application of
mind that there is sufficient basis for
proceeding against the said accused and
formation of such an opinion is to be stated in
the order itself. The order is liable to be set
aside if no reason is given therein while
coming to the conclusion that there is prima
facie case against the accused, though the
order need not contain detailed reasons. A
fortiori, the order would be bad in law if the
reason given turns out to be ex facie
incorrect."

36. Further, Hon'ble the Supreme
Court of India has provided guidelines in
case of State of Haryana Vs. Bhajan Lal
reported in 1992 Supp (1) SCC 335 for
the exercise of power under Section 482
Cr.P.C. which is extraordinary power and
used separately in following conditions:-

 "102.(1) Where the allegations
made in the first information report or the
6 All. Anil Katiyar & Anr. Vs. State of U.P.
153
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused."

 (2) where the allegations in the
First
Information
Report
and
other
materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police officers
under Section 156(1) of the Code except
under an order of a Magistrate within the
purview of Section 155(2) of the Code;

 (3) where the uncontroverted
allegations made in the FIR or 'complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused;

 (4) where the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code;

 (5) where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused;