# Dharmraj & Ors v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 666
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-30
- **Case number:** Application U/S 482. No. 11315 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmraj-ors-v-state-of-u-p-anr-47288
- **Pages:** 7

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Section 323,325,504quashing of summoning order-impugned
summoning order passed in mechanical
manner through a printed order without
applying
judicial
mind
and
without
considering the material-cognizance order
cannot be legally sustained, as it does not
stand the test of the law laid down by the
Apex Court.(Para 1 to 25)

B. Judicial orders can not 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.(Para 12 to 22)

The application is allowed. (E-5)

List of Cases cited:

## Text

666 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction and place his defence during
the trial.

17. Having regard to the aforesaid,
this Court is not inclined to entertain the
present application in exercise of its
inherent jurisdiction under Section 482
Cr.P.C.

18.

The
application
stands
accordingly dismissed.
----------
(2021)08ILR A666
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.07.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 11315 of 2021

Dharmraj & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sudhir Kumar Agarwal, Sri Naveen
Kumar

Counsel for the Opposite Parties:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Section 323,325,504quashing of summoning order-impugned
summoning order passed in mechanical
manner through a printed order without
applying
judicial
mind
and
without
considering the material-cognizance order
cannot be legally sustained, as it does not
stand the test of the law laid down by the
Apex Court.(Para 1 to 25)

B. Judicial orders can not 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.(Para 12 to 22)

The application is allowed. (E-5)

List of Cases cited:

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

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

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

4. Abdul Rehman Antulay Vs R.S. Nayak(1992)
1 SCC 225

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

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

7. Basaruddin & Ors Vs St. of U.P & ors. (2011)
1 JIC 335 (AII) (LB)

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

9. Sunil Bharti Mittal Vs CBI (2015) AIR SC 923

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

11. Ankit Vs St. of U.P. & anr.

12. Megh Nath Guptas & anr.Vs St. of U.P &
anr. (2008) 62 ACC 826

13. Deputy Chief Controller Import and Export
Vs Roshan Lal Agarwal , (2003) 4 ACC 686 SC

14. UP Pollution Control Board Vs Mohan Meakins
(2000) 2 JIC 159 SC: AIR 2000 SC 1456

15. Kanti Bhadra Vs St. of W.B. (2000) 1 JIC
751 (SC): 2000 (40) ACC 441 SC
8 All. Dharmraj & Ors. Vs. State of U.P. & Anr.
667
16. Kavi Ahmad Vs St. of U.P & anr.CRLR No.
3209 of 2019

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

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

1. Heard learned counsel for the
applicants, learned AGA for the State and
perused the record.

2. This application under Section 482
Cr.P.C. has been filed for quashing the
proceedings of cognizance order dated
5.9.2020 as well as entire proceedings of
Case No.1594 of 2020 (State vs Dharmraj
and others) arising out of Case Crime
No.68 of 2020 under Sections 325,323, 504
IPC P.S. Banshi District Siddharthnagar
pending in the court of Judicial Magistrate,
Banshi, District Siddarthnagar.

3. As per the prosecution version of
the FIR which was lodged by the opposite
party no.2, on 25.12.2019 when he was
going to his home from the field, accused
persons namely Dharmraj, Narku, Sushil,
Sunil and Lavkush started abusing him
without any reason and on being objected,
they had beaten him with lathi and danda
due to which he sustained injuries. The
incident was witnessed by many people.

4. Learned counsel for the applicants
further submits that the entire prosecution
story is false. No such incident took place
and the applicants have been falsely
implicated in the present case.

5. Learned counsel for the applicants
further submits that before arguing the case
on merits, he wants to draw the attention of
the Court on the charge-sheet submitted by
the Investigating Officer and submitted that
the Investigating Officer had submitted the
charge-sheet against the applicants under
Sections 323, 325, 504 IPC on 6.4.2020,
copy of the same is filed as Annexure No.8
to the affidavit, whereas he further submits
that on the charge-sheet, the learned
Magistrate
had
taken
cognizance
on
5.9.2020 and the case was numbered as
Case No.1594 of 2020. The cognizance
was taken on the prined proforma by filling
the sections of IPC, dates and number and
in the said proforma the learned Magistrate
without
assigning
any
reason
has
summoned the applicants for facing trial.
Copy of the same is annexed as Annexure
No.9 to the affidavit.

6. Learned counsel for the applicant
further submits that by the order dated
5.9.2020 cognizance taken by the learned
Magistrate on printed proforma without
assigning any reason is abused of process
of law.

7. Learned counsel for the applicant
further submits that after submission of
charge sheet the applicant has been
summoned mechanically by order dated
5.9.2020 and the court below while
summoning the applicants has materially
erred and did not follow the dictum of law
as propounded by the Hon'ble Supreme
Court in various cases that summoning in
criminal case is a serious matter and the
court below without dwelling into material
and visualizing the case on the touch stone
of probability should not summon accused
person to face criminal trial. It is further
submitted that the court below has not
taken into consideration the material placed
before the trial court along with charge
sheet and, therefore, the trial court has
materially
erred
in
summoning
the
applicant. The court below has summoned
the applicants through a printed order,
which is wholly illegal.
668 INDIAN LAW REPORTS ALLAHABAD SERIES

8. It is vehemently urged by learned
counsel
for
the
applicants
that
the
impugned summoning order dated 5.9.2020
is not sustainable in the eye of law, as the
same has been passed in mechanical
manner without applying the judicial mind,
because on the face of record itself it is
apparent that impugned summoning order
dated 5.9.2020 has been passed by the
Magistrate concerned on printed proforma
by filling up the gaps, therefore the same is
liable to be quashed by this Court.

9. Learned counsel for the applicant
has given much emphasis that if the
cognizance has been taken on the printed
proforma, the same is not sustainable.

10. Per contra, learned AGA for the
State
submitted
that
considering
the
material evidences and allegations against
the applicants on record, as on date, as per
prosecution case, the cognizable offence
against the applicants is made out,
therefore, application is liable to be
dismissed but has not denied that the leaned
Magistrate has taken cognizance on the
printed proforma. This case is being finally
decided at this stage without issuing notice
to opposite party no.2 and without calling
for a counter affidavit.

11. I have heard the learned counsel
for the parties and perused the record.

12. The main 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 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 upo
n 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."

13. 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
8 All. Dharmraj & Ors. Vs. State of U.P. & Anr.
669
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.

14. 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.

15. For the purposes of investigation,
offences are divided into two categories
"cognizable" and "non-cognizable". 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 noncognizable offence, he shall not investigate
it without the order of the competent
Magistrate. Investigation includes all the
proceedings 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 chargesheet 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.

16. 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 obserave 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
670 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. 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 prerequisite for deciding the validity of the
summons issued.

18. 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"
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.."

19. 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."

20. In the case of Ankit Vs. State of
U.P. And another passed in Application
8 All. Dharmraj & Ors. Vs. State of U.P. & Anr.
671
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
"अमभयुक्त
अंमकत
की
मगरफ्तारी िा0 उच्च न्यायायल द्वारा Crl. Writ
No. 19559/08 अंमकत िनाि राज्य िें पाररत
आदेश मदनांक 5.11.08 द्वारा आरोप पत्र प्राप्त
होने तक थथमगत 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,
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."

21. 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.

22. 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
672 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

23. In view of the above, 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.

24. In light of the judgments referred to
above, it is explicitly clear that the order dated
5.9.2020 passed by Civil Judge (J.D.)/Judicial
Magistrate, Banshi, District Siddarthnagar is
cryptic and does not stand the test of the law
laid down by the Hon'ble Apex Court.
Consequently, the cognizance order dated
5.9.2020 cannot be legally sustained, as the
Magistrate failed to exercise the jurisdiction
vested in him resulting in miscarriage of
justice.

25. Accordingly, the present Criminal
Misc. Application U/S 482 Cr.P.C succeeds
and is allowed. The impugned cognizance
order dated 5.9.2020 passed by Civil Judge
(J.D.)/Judicial Magistrate, Banshi, District
Siddarthnagar in Case No.1594 of 2020 (State
vs Dharmraj and others) arising out of Case
Crime No.68 of 2020 under Sections 325,323,
504 IPC P.S. Banshi District Siddharthnagar is
hereby quashed.

26. The Civil Judge (J.D.)/Judicial
Magistrate, Banshi, District Siddarthnagar is
directed to decide afresh the issue for taking
cognizance and summoning the applicant and
pass appropriate orders in accordance with law
keeping in view the observations made by this
Court as well as the direction contained in the
judgments referred to above within a period of
three months from the date of production of a
certified copy of this order.

27. With the above direction, the
application filed under Section 482 Cr.P.C.
stands allowed.
----------
(2021)08ILR A672
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482. No. 11334 of 2021

Pankaj Jaiswal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties