# Babu @ Naseem & Ors v. State of U.P. & Anr

- **Citation:** (2021) 4 ILRA 286
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-22
- **Case number:** U/S 482/378/407 No. 1520 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-naseem-ors-v-state-of-u-p-anr-47008
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973-
Section
190-
Cognizance of offences by Magistrate- It
is
settled
view
that
though
the
Magistrate is not required to pass a
detailed order when taking cognizance
on the chargesheet but it does not mean
that order of taking cognizance can be
passed by filling up the blanks on
printed format- While passing a judicial
order including the order of taking
cognizance
of
offences
pursuant
to
perusal of charge sheet, as the case is in
the instant matter, the Court is required
to apply it's judicial mind. The order of
taking cognizance cannot be passed in
stereotype and mechanical manner. The
application of mind over the matter
must reflect from the order of taking
cognizance of offence by the Court,
otherwise the same cannot be said a
legally passed order.

Although the Magistrate is not required to
pass a detailed order while taking cognizance
of the offences, but he has to apply his
judicial mind and the order taking cognizance
must reflect application of mind. An order
passed in a stereotyped and mechanical
manner in a printed format is wholly
impermissible and unsustainable in the eyes
of law. ( Para 10, 11)

Criminal Application disposed of. (E-2)

Case law/ Judgements relied upon:-

## Text

286 INDIAN LAW REPORTS ALLAHABAD SERIES
quashing, particularly the offences arising
from commercial, financial, mercantile,
civil, partnership or such like transactions
or the offences arising out of matrimony
relating to dowry, etc. or the family
disputes where the wrong is basically
private or personal in nature and the
parties have resolved their entire dispute.
In this category of cases, High Court may
quash criminal proceedings if in its view,
because of the compromise between the
offender and victim, the possibility of
conviction is remote and bleak and
continuation of criminal case would put
accused to great oppression and prejudice
and extreme injustice would be caused to
him by not quashing the criminal case
despite full and complete settlement and
compromise with the victim. In other
words, the High Court must consider
whether it would be unfair or contrary to
the interest of justice to continue with the
criminal proceeding or continuation of the
criminal proceeding would tantamount to
abuse of process of law despite settlement
and compromise between the victim and
wrongdoer and whether to secure the ends
of justice, it is appropriate that criminal
case is put to an end and if the answer to
the above question(s) is in affirmative, the
High Court shall be well within its
jurisdiction
to
quash
the
criminal
proceeding."

16. On the basis of aforesaid
discussions and considering the dispute
with regard to the offences allegedly to
have been committed by the present
accused-applicants is amicably settled with
the victims of the offence. Since they are
not heinous and serious offences of mental
depravity or offences like murder, rape,
dacoity etc., the charge-sheet and further
proceeding flowing therefrom in Sessions
Trial No.26/2018 may be quashed in view
of the compromise.

17. The charge-sheet no.74/2015 filed
by the police and the criminal proceedings
flowing
therefrom
in
Session
Trial
No.26/2018, arising out of Case Crime
No.858/2015, under Sections 323, 504,
308, 325 I.P.C., Police Station- Kotwali
City, District- Hardoi are quashed and the
trial court is directed accordingly to drop
the proceedings.

18. The prayer made in the instant
application by the accused-applicants and
opposite parties no.2 to 4 is allowed.

19. The present application under
Section 482 Cr.P.C. is disposed of.

20. The Deputy Registrar (Criminal)
is to communicate the order of this Court to
the
learned
court
below
(Additional
Sessions Judge, Court No.11, Hardoi)
promptly.
----------
(2021)04ILR A286
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.3.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

U/S 482/378/407 No. 1520 of 2021

Babu @ Naseem & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sheikh Mohammad Ali

Counsel for the Opposite Parties:
G.A.
4 All. Babu @ Naseem & Ors. Vs. State of U.P. & Anr.
287
Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
190-
Cognizance of offences by Magistrate- It
is
settled
view
that
though
the
Magistrate is not required to pass a
detailed order when taking cognizance
on the chargesheet but it does not mean
that order of taking cognizance can be
passed by filling up the blanks on
printed format- While passing a judicial
order including the order of taking
cognizance
of
offences
pursuant
to
perusal of charge sheet, as the case is in
the instant matter, the Court is required
to apply it's judicial mind. The order of
taking cognizance cannot be passed in
stereotype and mechanical manner. The
application of mind over the matter
must reflect from the order of taking
cognizance of offence by the Court,
otherwise the same cannot be said a
legally passed order.

Although the Magistrate is not required to
pass a detailed order while taking cognizance
of the offences, but he has to apply his
judicial mind and the order taking cognizance
must reflect application of mind. An order
passed in a stereotyped and mechanical
manner in a printed format is wholly
impermissible and unsustainable in the eyes
of law. ( Para 10, 11)

Criminal Application disposed of. (E-2)

Case law/ Judgements relied upon:-

1. Fakhruddin Ahmad Vs St. of Uttaranchal &
anr.,(2008) 17 SCC 157

2. Prasad Shrikant Purohit Vs St. of Maha. &
anr. (2015) 7 SCC 440

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out.

2. Learned counsel for the applicants
Sri Sheikh Mohammad Ali, Advocate and
learned A.G.A. for the State are present in
the Court.

3. The present application under
Section 482 Cr.P.C. is moved on behalf of
accused-applicants with following prayer:-

"That by means of the instant
petition petitioners are challenging the
impugned summoning order dated 16.9.2020
passed
by
Additional
Civil
Judge
(J.D.)/Judicial Magsitrate-II, Bahraich in
Criminal Case No.9645/2020, State Versus
Babu @ Naseem and others, relating to case
crime no. 204/2020, under Sections 323, 504,
506, 452, 325 of I.P.C. at police station
Huzurpur, District Bahraich by means of
which the petitioners have been summoned to
face the trial on the basis of false and
concocted story and also against the charge
sheet dated 11.6.2020."

4. On perusal of record, it seems that
vide
order
dated
16.09.2020,
learned
Additional
Civil
Judge
(J.D.)/Judicial
Magsitrate-II, Bahraich purported to have
taken cognizance of offence and issued
summons, fixing 13.10.2020, to the accused.
It is obvious from the face of the summons
that it is a typographical format having
several blanks to be filled mutatis mutandis
as and when required. It further appears that
the blanks are filled up with date only and
lastly the initial is put by the concerned
Additional
Civil
Judge
(J.D.)/Judicial
Magsitrate-II, Bahraich.

5. Nothing has been endorsed with
regard to perusal of the charge sheet,
consideration
upon
the
evidences,
satisfaction as to constitution of offence
found thereupon, is recorded in the
handwriting of the said Judicial MagsitrateII, Bahraich. It manifest on it's face that
288 INDIAN LAW REPORTS ALLAHABAD SERIES
there is a non-application of judicial mind
by the concerned officer.

6. The order dated 16.09.2020 of
summoning the accused challenged in the
instant application under Section 482
Cr.P.C. is being reproduced hereunder so as
to find out the answer whether the
concerned court, Additional Civil Judge
(J.D.)/Judicial Magsitrate-II, Bahraich has
legally taken cognizance of offence, while
passing the order aforesaid and to further
discuss legality of passing the summoning
order against a person in a criminal case, in
such a mechanical way, by filling the
blanks in the typographed format. The
order
dated
16.09.2020
is
quoted
hereunder:-

U;k;ky; vij flfoy tt1⁄4v0[k01⁄2@ts0,e0
f+}rh;]cgjkbp

eq0la0&9645@20

ljdkj cuke& ckcw mQZ ulheQ vkfn

धारा - 323]504]506]452]325
I.P.C.

v0la0& 204@20

Fkkuk&gqtwjiqj

vkt ;g vkjksi i+= tfj;s lh0vks0
isjksdkj

}kjk izkIr gqvkA dsl Mk;jh ,oa leLr

izi=ksa dk voyksdu fd;k] laKku
fy;k x;kA

आदेश

ntZ jft0 gksA vfHk;qä tfj;s lEeu
fnukad 13&10&2020 dks ryc gksA

vij flfoy tt1⁄4v0[k01⁄2@

@ts0,e0 f}rh; cgjkbp

7. Passing of summoning order in
such a mechanical way without reflecting
the application of judicial mind over the
allegations/police report under Section 190
of the Criminal Procedure Code, 1973 by
the Magistrate has become prevalent in
their practice, as it is seen in applications
moved by aggrieved persons before the
High Court under Section 482 of the
Cr.P.C.

8 .In para 17 of Fakhruddin Ahmad
Vs. State of Uttaranchal and Another
reported in (2008) 17 SCC 157, Hon'ble
the Supreme Court held as under :-

"Nevertheless, 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 is in regard to the offence and
not the offender."

9. It would be pertinent to cite some
more decisions of Hon'ble the Supreme
Court which found place in the judgment in
the case of Prasad Shrikant Purohit Vs.
State
of
Maharashtra
and
Another
reported in (2015) 7 SCC 440. The
relevant paras are quoted hereunder:-
4 All. Babu @ Naseem & Ors. Vs. State of U.P. & Anr.
289

68. Mr Lalit, learned counsel in
the course of his submissions relied
uponAjit Kumar Palit v. State of W.B. [AIR
1963 SC 765 : (1963) 1 Cri LJ 797] In the
said decision with reference to the
expression "cognizance" a three-Judge
Bench of this Court has explained what is
really meant by the said expression in the
following words in para 19: (AIR p. 770)

"19. ... The word ''cognizance' has
no esoteric or mystic significance in criminal
law or procedure. It merely means--become
aware of and when used with reference to a
court or Judge, to take notice of judicially. It
was stated in Gopal Marwari v. Emperor
[1943 SCC OnLine Pat 5 : AIR 1943 Pat
245] , by the learned Judges of the Patna
High Court in a passage quoted with
approval by this Court in R.R. Chari v. State
of U.P. [AIR 1951 SC 207 : (1951) 52 Cri LJ
775 : 1951 SCR 312] (SCR at p. 320 : AIR at
p. 210) that the word ''cognizance' was used
in the Code to indicate the point when the
Magistrate or Judge takes judicial notice of
an offence and that it was a word of indefinite
import, and is not perhaps always used in
exactly the same sense. As observed in
Sourindra
Mohan
Chuckerbutty
v.
Emperor[1910 SCC OnLine Cal 41 : ILR
(1910) 37 Cal 412] : (ILR at p. 416: SCC
OnLine Cal)

''...taking cognizance does not
involve any formal action, or indeed action
of any kind; but occurs as soon as a
Magistrate, as such, applies his mind to the
suspected commission of an offence.'

Where the statute prescribes the
materials on which alone the judicial mind
shall operate before any step is taken,
obviously the statutory requirement must be
fulfilled." (emphasis supplied)

In the above-extracted portion
the reference made to the earlier judgment
inR.R.
Chari
case reported
in R.R.
Chari [AIR 1951 SC 207 : (1951) 52 Cri LJ
775 : 1951 SCR 312] (AIR at p. 210, para
8) that the word "cognizance" was used in
the Code to indicate the point when the
Magistrate or Judge takes judicial notice of
an offence throws sufficient light to state
that at that very moment when a Magistrate
takes judicial notice of an offence, the
requirement of cognizance of such offence
will get fulfilled. Therefore, the said
decision also fully supports our conclusion
on the question of taking cognizance by the
competent court.

72. In R.R. Chari [AIR 1951 SC
207 : (1951) 52 Cri LJ 775 : 1951 SCR
312] , in para 8, this Court made it clear
that the word "cognizance" is used by the
Court to indicate the point when the
Magistrate or a Judge first takes judicial
notice of an offence. Therefore, primarily
cognizance of an offence takes place when
a Judicial Magistrate applies his mind and
takes judicial notice of the offence. In fact
that is what has been even statutorily
stipulated under Section 190(1) CrPC.

73. In Darshan
Singh
Ram
Kishan [(1971) 2 SCC 654 : 1971 SCC
(Cri) 628 : AIR 1971 SC 2372] , in para 8,
with particular reference to Section 190,
this Court has held as under: (SCC p. 656)

"8. 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
290 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
 (emphasis supplied)

The above passage referred to in
the said decision makes the position
explicitly clear that cognizance would take
place at a point when a Magistrate first
takes judicial notice of the offence either on
a complaint or on a police report or upon
information of a person other than the
police officer. Taking judicial notice is
nothing but perusing the report of the
police officer, proceeding further on that
report by opening the file and thereafter
taking further steps to ensure the presence
of the accused and all other consequential
steps including at a later stage, depending
upon the nature of offence alleged, to pass
necessary order of committal to Court of
Session.

74. In Salap Service Station
[1994 Supp (3) SCC 318 : 1994 SCC (Cri)
1713] , the question as to what is the
implication of a supplementary report filed
by the investigating agency under Section
173(8) CrPC was considered. While
dealing with the same, it has been stated as
under in para 2: (SCC p. 319)

"2. ... It may be mentioned here
that in the supplementary charge-sheet
allegations are to the effect that there was
violation of Direction 12 of the Control
Order. The question of taking cognizance
does not arise at this stage since
cognizance has already been taken on the
basis of the main charge-sheet. What all
Section 173(8) lays down is that the
investigating agency can carry on further
investigation in respect of the offence after
a report under sub-section (2) has been
filed. The further investigation may also
disclose some fresh offences but connected
with the transaction which is the subjectmatter of the earlier report. ... The purpose
of sub-section (8) of Section 173 CrPC is to
enable the investigating agency to gather
further evidence and that cannot be
frustrated. If the materials incorporated in
the supplementary charge-sheet do not
make out any offence, the question of
framing any other charge on the basis of
that may not arise but in case the court
frames a charge it is open to the accused
persons to seek discharge in respect of that
offence also as they have done already in
respect of the offence disclosed in the main
charge-sheet. The rejection of the report
outright at that stage in our view is not
correct." (emphasis supplied)

The above statement of law with
particular reference to Section 173(8)
CrPC makes the position much more clear
to the effect that the filing of the
supplementary charge-sheet does not and
will not amount to taking cognizance by the
court afresh against whomsoever again
with reference to the very same offence.
What all it states is that by virtue of the
supplementary charge-sheet further offence
may also be alleged and charge to that
effect may be filed. In fact, going by Section
173(8) it can be stated like in our case by
4 All. Babu @ Naseem & Ors. Vs. State of U.P. & Anr.
291
way of supplementary charge-sheet some
more accused may also be added to the
offence with reference to which cognizance
is already taken by the Judicial Magistrate.
While cognizance is already taken of the
main offence against the accused already
arrayed, the supplementary charge-sheet
may provide scope for taking cognizance of
additional
charges
or
against
more
accused with reference to the offence
already taken cognizance of and the only
scope would be for the added offender to
seek for discharge after the filing of the
supplementary charge-sheet against the
said offender.

10. On the basis of law laid down by
Hon'ble the Apex Court, thus it is settled
view that though the Magistrate is not
required to pass a detailed order when
taking cognizance on the chargesheet but it
does not mean that order of taking
cognizance can be passed by filling up the
blanks on printed format.

11. While passing a judicial order
including the order of taking cognizance of
offences pursuant to perusal of charge
sheet, as the case is in the instant matter,
the Court is required to apply it's judicial
mind. The order of taking cognizance can
not be passed in stereotype and mechanical
manner. The application of mind over the
matter must reflect from the order of taking
cognizance of offence by the Court,
otherwise the same cannot be said a legally
passed order.

12. The conduct of Judicial Officer
concerned in passing such order purporting
to
be
taking
cognizance
order
on
typographed format by filling the blanks is
condemnable
and
deserved
to
be
deprecated.

13. Our High Court has repeatedly
assailed and deprecated in number of
decisions, the practice adopted by some of
the Judicial Magistrate, of passing the order
of taking cognizance on typographed
format filling the blanks only, and
summoning persons as accused, without
application of mind and set aside such
orders remitting the matter to the concerned
Court
for
passing
the
order
taking
cognizance of offence afresh. Even then,
the habit of passing such orders is extent.

14. It cannot be said that such judicial
officers are not aware of the decision given
over their practice to pass order on
typographed format containing reflection of
application
of
mind
while
taking
cognizance of offence over complaint,
allegations/charge sheet or otherwise on
information received from other sources
but the instances of passing such orders are
still found in their practice.

15. The impugned order dated
16.09.2020, is therefore, set aside, the
matter is remitted to the Court concerned
for passing the order of taking cognizance
on perusal of charge sheet submitted by the
police on 11.06.2020, in Case Crime
No.204/2020, under Sections 323, 504,
506, 452, 325 of I.P.C. at Police Station
Huzurpur, District Bahraich recording
satisfaction as to the evidences collected by
the Investigating Officer so as to make a
finding as to the constitution of offence, if
any, thereupon specifically stating the
relevant Sections of the offences and
whether they are triable by them or not then
only to issue the process, like summoning
the accused accordingly.

16. The District and Sessions Judge,
Bahraich is also required to circulate
292 INDIAN LAW REPORTS ALLAHABAD SERIES
amongst the officers, the direction issued
by the High Court time to time, their
decisions alongwith the decision in this
case also.

17.

Accordingly,
the
present
application under Section 482 Cr.P.C. is
disposed of.

18. Deputy Registrar (Criminal) is
directed to communicate this order to the
Court concerned i.e. Additional Civil Judge
(J.D.)/Judicial
Magsitrate-II,
Bahraich
immediately.
----------
(2021)04ILR A292
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.03.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

U/S 482/378/407 No. 1699 of 2021

Patiram & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Nijam Ahamad

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section

482
-
Quashing of criminal proceedings under
Sections 452, 336, 323, 427 of I.P.C on
basis
of
Compromise
-
Non-
Compoundable offence- None of the
offence, in which the present accusedapplicants are arraigned, is falling under
those heinous offence like murder, rape
or
dacoity,
which
falls
under
the
categories, categorized as heinous and
inacceptable
for
mutual
settlement
between the offender and the victim-The
inherent power may be exercised in
different ways to achieve its ultimate
objective. Formation of opinion by the
High Court before it exercises inherent
power under Section 482 Cr.P.C. on
either of the twin objectives (i) to
prevent abuse of the process of any
court or (ii) to secure the ends of
justice, is a sine qua non.

It is settled law that the power u/s 482 Cr.Pc
can be exercised to quash the criminal
proceedings
even
in
non-compoundable
offences where the offence arises out of a
family dispute, is not heinous and is private
and personal in nature, not effecting public
life, and the parties have amicably arrived at
a compromise rendering the possibility of
conviction remote. (Para 13, 17, 18, 19)

Criminal Application disposed of. (E-2)

Case law/ Judgements relied upon:-

1. Gyan Singh Vs St. of Punj. & anr. (2012) 10
SCC 303

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out.

2. Heard learned counsel for the
applicants and learned A.G.A. for the State.

3. The present application under
Section 482 Cr.P.C. is filed by applicants
Patiram, Suresh Chandra @ Suresh, Smt.
Vimla and Sandeep Kumar against private
opposite party nos.2 to 4 namely Avadhesh
Verma, Raj Bahadur Verma and Sunil
Kumar.

4. From the array of parties, it appears
that applicant nos.1 & 2 i.e. Patiram and
Suresh Chandra @ Suresh are real brothers
whereas applicant no.3, Vimla is wife of
Patiram and applicant no.4, Sandeep
Kumar is son of Patiram. The parties to the