# Gangaram & Ors v. The State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 574
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-04
- **Case number:** Application U/S 482 No. 17336 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gangaram-ors-v-the-state-of-u-p-anr-46628
- **Pages:** 21

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860 -
Sections
325,
120-B
-quashing
of
entire
proceeding-a litigation was going on between
the parties, later on having been lost the said
litigation, a false FIR was lodged-applicants
have been summoned on total non-application
of mind on a cyclostyled format-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 deprecatedthe summoning of accused in a criminal cases is
a serious matter and order must reflect that
Magistrate had applied his mind to the facts as
well as law applicable thereto-Learned court
below failed to exercise the jurisdiction vested
in him resulting in miscarriage of justice-The
order cannot be legally sustained.(Para 1 to 30)

The application is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,969 of 74,807. This is a partial read: ask again with offset=39969 for what follows._

574 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed by the Collector subject to the condition
of payment of 30% of the market value of the
vehicle which has been seized carrying illicit
liquor. The very language of Section 72 of the
Excise Act, and its Proviso, gives power to the
Collector to release the vehicle to the owner
thereof by giving a bond to pay in lieu of its
confiscation such fine at the Collector thinks
appropriate but not exceeding on the date of its
seizure.

16. It is apparent from the language of the
Act that the Collector can impose a fine up to
the extent of entire market value of the seized
vehicle. In the instant case obviously thirty
percent of the value of the seized car have been
directed to be paid.

17. Under Sub-Section (7) of Section 72,
the petitioner could have appealed against such
an order as it has a statutory remedy provided
under the Act, which could not be bye passed.

18. There is no abuse of process of Court
as alleged by the counsel for the petitioner for
this Court to exercise its inherent jurisdiction
under Section 482 of the Cr.P.C.

18. Accordingly, the petition stands
rejected.

19. No order as to costs.
----------
(2021)12ILR A574
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Application U/S 482 No. 17336 of 2021

Gangaram & Ors. ...Applicants
Versus
The State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Anil Kumar Bind

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

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860 -
Sections
325,
120-B
-quashing
of
entire
proceeding-a litigation was going on between
the parties, later on having been lost the said
litigation, a false FIR was lodged-applicants
have been summoned on total non-application
of mind on a cyclostyled format-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 deprecatedthe summoning of accused in a criminal cases is
a serious matter and order must reflect that
Magistrate had applied his mind to the facts as
well as law applicable thereto-Learned court
below failed to exercise the jurisdiction vested
in him resulting in miscarriage of justice-The
order cannot be legally sustained.(Para 1 to 30)

The application is allowed. (E-6)

List of Cases cited:

1. R.R. Chari Vs St. of U.P. (1951) AIR SC 207

2. Ajit Kumat Palit Vs St. of W. B. & ors. (1963) AIR
SC 765

3. Tularam & ors. Vs Kishore Singh (1977) 4 SCC 459

4. Hareram Satpathy Vs Tikaram Agarwala & ors.
(1978) 4 SCC 58

5. Chandra Deo Singh Vs Prokar Chandra Bose(3)

6.
S.K
Sinha
Chief
Informant
Vs
Videocon
International CRLA No. 175 of 2007

7. Sunil Bharti Mittal Vs C.B.I. (2015) AIR SC 1923

8. Sunil Todi & ors. Vs St. of Guj. & anr. CRLA
No.1446 of 2021

9. Bhushan Kumar & anr. Vs State (NCT of Delhi) &
Anr (2012) 5 SCC 424
11 All. Gangaram & Ors. Vs. The State of U.P. & Anr.
575
10. Ankit Vs St. of U.P. & anr, Appl. u/s 482 No.
19647 of 2009

11. Abdul Rasheed & ors. Vs St. of U.P. & anr, Appl.
u/s 482 No. 7279 of 2006

12. Qavi Ahmad Vs St. of U.P. & anr. CRLR No. 3209
of 2010

13. Vineet Agarwal & 2 ors. Vs St. of U.P. & anr.,
Appl. u/s 482 No. 15450 of 2020

14. Ved Krishna Vs St. of U.P. & anr. Appl. u/s 482
No. 683 of 2021

15. Deepak Yadav @ Lalla & anr. Vs St. of U.P. & anr,
Appl. u/s 482 No. 6932 of 2021

16. Smt. Rubina Khan Vs St. of U.P. & anr., Appl. u/s
482 No. 7854 of 2021

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Whether summons issued on cyclostyled
and printed proforma, qualifies the litmus test of
being the real intent of the word "cognizance" is
a question which falls for determination before
this Court in the present proceeding.

2. Heard Sri Anil Kumar Bind, learned
counsel for the applicants and Sri K.K. Rajbhar,
who appears for opposite party nos. 1 and 2.

3. In view of the order which is being
proposed to be passed today, there is no need to
issue notice to the opposite party no. 2 as the
learned counsel for the applicants as well as the
learned A.G.A. have consented for disposal of
the present application at the admission stage,
particularly in view of the peculiar facts of the
case, wherein only the order summoning
applicants dated 06.11.2020 is subject matter of
scrutiny on a technical issue as demonstrated in
the latter part of the judgment.

4. This application u/s 482 Cr.P.C. has
been filed for quashing of the charge sheet no.
03/2019 dated 05.01.2019 and cognizance order
dated 06.11.2020 as well as entire criminal
proceeding of Case No. 3649 of 2020 (State Vs.
Nanne and others) pending before Additional
Civil Judge (Senior Division) Shahjahanpur
arising out of Case Crime No. 247 of 2018, u/s
325, 120-B IPC, P.S. Allahganj, District
Shahjahanpur.

5. Factual matrix of the case as worded in
the present application are that a FIR was lodged
by the opposite party no. 2 against one Laxman
S/o Shankar, Prithiviraj S/o Lalla Singh and
Kallu S/o Chakrapal before P.S. Allahganj,
District Shahjahanpur on 27.06.2018, u/s 307,
504, 506 IPC with an allegation that the opposite
party no. 2 as aged about 50 years, belonging to
Kushwaha community R/o Village Chauki,
Azampur P.S. Allahganj, Shahjahanpur and a
litigation was going on between the opposite
party no. 2 and Laxman S/o Shankar and later on
having been lost the said litigation, Laxman
came to the house of opposite party no. 2 on
26.06.2018 at about 11 p.m. armed with a pistol
312 bore along with Prithiviraj S/o Lalla Singh
and Kallu S/o Chakrapal and at that point of
time the brother of the opposite party no. 2 being
Gangaram was sleeping on the cot out side the
house and the aforesaid accused pounced upon
him and hurled abuses and threatening them to
withdraw the case and when the brother of
opposite party no. 2 started shouting seeking
help then the villagers who were present within
the close vicinity came and then the accused
took out their pistol shot and also threatened the
brother as well as the opposite party no. 2 and
brother of the opposite party no. 2 sustained
injuries. A copy of the injury report of the
brother of the opposite party no. 2 on record.
The statement of the brother of the opposite
party no. 2 was also obtained consequently, after
investigation the Investigating Officer submitted
a charge sheet on 05.01.2019 against the
applicants alleging that the FIR so lodged
against Laxman S/o Shankar, Prithiviraj S/o
Lalla Singh and Kallu S/o Chakrapal was false
576 INDIAN LAW REPORTS ALLAHABAD SERIES
and no case u/s 307, 504, 506 IPC were made
out against them and on the contrary cases
u/s325 and 120-B IPC are made against the
applicants.

6. Accordingly on the 06.11.2020 the court
of Additional Civil Judge (Senior Division)
Shahjahanpur in the proceedings in case no.
3649 of 2020 (State Vs. Nanhe and others) in
case crime no. Case Crime No. 247 of 2018 have
issued summons against the applicants u/s 325,
120-B IPC. Challenging the charge sheet dated
05.01.2019
emanating
from
the
criminal
proceedings of case crime no. 3649 of 2020
(State Vs. Nanhe and others) in case crime no.
Case Crime No. 247 of 2018, u/s 325, 120-B
IPC, P.S. Allahganj, District Shahjahanpur as
well as the cognizance order dated 06.11.2020
summoning the applicants pending before the
Additional
Civil
Judge
(Senior
Division)
Shahjahanpur, the present application has been
preferred.

7. The word 'Cognizance' roots from an old
French word "Conoisance" based on Latin word
"Cognoscere" the word cognizance has not been
deciphered and defined in procedural law being
the Code of Criminal Procedure 1973.

8. The learned counsel for the applicants
has sought to argue that the present application
is being confined to the challenge so made to the
order
dated
06.11.2020
summoning
the
applicants u/s 325, 120-B IPC as the applicants
have been summoned on total non-application of
mind on a cyclostyled format. In nutshell the
argument of the learned counsel for the
applicants is to the extent that summoning is a
serious matter and the same cannot be restored
without application of mind particularly when
the order in question is cyclostyled wherein the
blanks have been filled.

9. Countering the said submission the
learned counsel for the opposite party no. 1
has argued that though the order under
challenge being a summoning order is
cyclostyled but it cannot said to be passed by
total non application of mind as the order
though it does not contain any discussion but
it is a case wherein the court below has
applied his mind.

10. I have gone through the argument so
raised by the learned counsel for the
applicants as well as learned A.G.A. who
appear for opposite party no. 1 and perused
the record.

11. Before adverting to the factual as
well as legal position this Court finds
necessary to extract the relevant statutory
provisions which are germane to the issue in
question.

Code of Criminal Procedure 1898
(Old Code)

"190. Cognizance of offence by
Magistrate. - (1) Except as hereinafter
provided, any Presidency Magistrate, District
Magistrate or Sub-divisional Magistrate, and
any other Magistrate specially empowered in
this behalf, may take cognizance of any
offence -

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

(b) upon a report in writing of such
facts made by any police-officer;]

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

(2) The [State Government], or the
District Magistrate subject to the general or
11 All. Gangaram & Ors. Vs. The State of U.P. & Anr.
577
special orders of the [State Government], may
empower any Magistrate to take cognizance
under sub-section (1), clause (a) or clause (b), of
offences for which he may try or commit for
trial.

(3) The [State Government] may
empower any Magistrate of the first or second
class to take cognizance under sub-section (1),
clause (c), of offences for which he may try or
commit for trial."

Code of Criminal Procedure 1973
(New Code)

Section 2 (c) " cognizable offence"
means an offence for which, and" cognizable
case" means a case in which, a police officer
may, in accordance with the First Schedule or
under any other law for the time being in
force, arrest without warrant;

(l) " non- cognizable offence" means
an offence for which, and" non- cognizable
case" means a case in which, a police officer
has no authority to arrest without warrant;"

190. Cognizance of offences by
Magistrates.

(1) 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.

12. It is noteworthy to mention here that
the word cognizance has not been employed
either in the Old Code or the New Code but in
the new code the word "cognizable offence" and
"non cognizable offence" are defined. In
nutshell, taking cognizane means cognizance of
an offence and not of offender. Once, the
Magistrate takes the cognizance of an offence
then it is the duty to find who is the real
offender. The aforesaid process itself personifies
taking cognizance is a serious matter which
presupposes a condition whereby wherein the
Magistrate has to apply its mind. Parliament has
deliberately
engrafted
Section
190
under
Chapter
(XIV)
containing
the
heading
"Condition
Requisite
For
Initiation
Of
Proceedings", providing that subject to the
provisions of Chapter (XIV) any Magistrate of
the first class, any Magistrate of the second class
specially empowered in that behalf under subsection (2) may take cognizance of an offence
upon receiving the complaint of facts which
constitute the offence, upon a police report of
said facts, upon information received from any
person other than the police officer or upon his
own knowledge that said offence has been
committed. Sub-Section (2) itself authorises
Chief Judicial Magistrate to empower any
Magistrate of second class to take cognizance
under sub-section (1) of said offence as are
within its competence to enquire into or trial.
The procedure contemplated under section 190
of the New Code is an act to be committed
judicially. The discretion has been casted upon
the Magistrate concerned to act judicially
keeping in account the facts of a particular case
578 INDIAN LAW REPORTS ALLAHABAD SERIES
as well as law on the said subject. Section 190 of
the New Code of Cr.P.C. itself is a starting point
for taking appropriate judicial action as the
Magistrate under the said sections has to apply
its mind on the motion so set up in sub-clause
(a)(b)(c) of Sub-Section (1) of Section 190 of
the New Code.

13. To simplify the same it can be safely
said that the Magistrate has to apply his
independent mind so as to find out whether the
material collected by Investigating Officer is
sufficient to proceed further and whether the
same constitutes violation of law so as to call
a person to appear before criminal court to
face trial. Logically the word cognizable and
non-cognizable offence have been employed
in the New Code so as to suggest that it is the
Magistrate who exercises its powers u/s 190 to
proceed against a person while summoning
him for the purpose of investigation into two
categories
being
cognizable
and
noncognizable.
The
New
Code
no
where
contemplates the situation whereby wherein
under the Magistrate concerned is to act as a
post office. Whenever, any information of a
cognizable offence is received or the same is
suspected, the police authority so available
with the police officer authorizes him to enter
into the investigation of the same but wherein
the information relates to non cognizable
offence he has no power to investigate it
without the order of the competent Magistrate.
The said provision itself finds place in Section
155 of the New Code.

14. The word cognizance has also been
defined in well known dictionaries which are
often referred in legal fraternity being...

The
Black's
Law
Dictionary
Seventh Edition has defined the word which
is as under:-

Cognizance (Kog-ni-zens), n. 1. The
right and power to try and determine cases;
JURISDICTION. 2. The taking of judicial or
authoritative notice. 3. Acknowledgement or
admission of an alleged fact; esp. (hist),
acknowledgement of a fine. See FINE (1);
FINE SUR COGNIZANCE DE DROIT. 4.
Common-law pleading. In a replevin action, a
plea by the defendant that the goods are held
in bailment for another. Cf. AVOWRY.

Similarly, the P RAMANATHA AIYAR
Law Lexicon Dictionary 1997 Edition has
defined cognizance as under:-

Cognizance.
Judicial
notice
or
knowledge; the judicial recognition or hearing
of a cause; jurisdiction, or right to try and
determine causes. It is a word of the largest
omport : embracing all power, authority and
jurisdiction. The word "Cognizance" is used in
the sense of "the right to take notice of and
determine a cause." 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 of the
suspected commission of an offence. (37 Cal
412=14 CWN 512-6 IC 8=11 Cr LJ 217.)

15. The word cognizance has defined in
the dictionaries as referred to above does not
involve any formal action but the same
embraces to which the application of mind
while proceeding judicially.

16. The word "taking cognizance" has
being often matter of judicial interpretation and
it has been held to be a positive act of
application of mind.

17. The Hon'ble Apex Court in the case of
R.R. Chari V. State of Uttar Pradesh reported
in AIR 1951 SC 207 has held as under:-
11 All. Gangaram & Ors. Vs. The State of U.P. & Anr.
579

"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"

18. Following the judgment in the case of
R.R. Chari (Supra) the Hon'ble Apex court in
the case of Ajit Kumat Palit Vs. State of West
Bengal and Others AIR 1963 SC 765 has held
as under:-

19. The provisions of s. 190 (1) being
obviously, and on its own terms, inapplicable, the
next question to be. considered is whether it is the
requirement
of
any
principle
of
general
jurisprudence that there should be some additional
material to entitle the Court to take cognizance of
the offence. 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 A.I.R. (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 Uttar Pradesh [1951] S.C.R.
312, 320 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 Emperor v. Sourindra Mohan
Chuckerbutty I.L.R. 37 Cal. 412, 416 "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. Thus, a sessions judge cannot exercise
that original jurisdiction which magistrates
specified in s. 190(1) can, but the material on
which alone he can apply his judicial mind and
proceed under the Code is an order of
commitment. But statutory provision apart, there is
no set material which must exist before the judicial
mind can operate. It appears to us therefore that as
soon as a special judge receives the orders of
allotment of the case passed by the State
Government it becomes vested with jurisdiction to
try the case and when it receives the record from
the Government it can apply its mind and issue
notice to the accused and thus start the trial of the
proceedings
assigned
to
it
by
the
State
Government.

19. In the case of Tularam And Others
Vs. Kishore Singh 1977 4 SCC 459 the
Hon'ble Apex Court has observed as under:-

7. The question as to what is meant by
taking cognizance is no longer res integra as it
has been decided by several decisions of this
Court. As far back as 1951 this Court in the
case of R. R. Chari v. State of Uttar Pradesh
[1951] S.C.R. 312 observed as follows -

"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".

While considering the question in
greater detail this Court endorsed the observations
of Justice Das Gupta in the case of Superintendent
and Remembrancer of Legal Affairs, West Bengal
v. Abani Kumar Banerjee A.I.R. 1950 Cal. 347
which was to the following effect (1) [1951]
S.C.R. 312. (2) A.I.R. 1950 Cal. 347.

"It seems to me clear however that
before it can be said that any Magistrate has taken
cognizance of any offence under section 190(1)

(a), Criminal Procedure Code, he must
not only have applied Ms mind to the contents of
580 INDIAN LAW REPORTS ALLAHABAD SERIES
the petition but he must have done so far the
purpose of proceeding in a particular way as
indicated in the subsequent provisions of this
Chapter-proceeding under section 200 and
thereafter sending it for inquiry 'and report under
section 202. When the Magistrate applies his
mind not for the purpose of proceeding under
the subsequent sections of this Chapter, but for
taking action of some other kind, e.g. ordering
investigation under section 156(3), or issuing a
search
warrant
for
the
purpose
of
the
investigation, he cannot be said to have taken
cognizance of the offence".

8. Section 190 of the Code runs thus
"190.(1) 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 subsection (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".

It seems to us that there is no special
charm or any magical formula in the expression
"taking cognizance" which merely means
judicial application of the mind of the Magistrate
to the facts mentioned in the complaint with a
view to, taking further action. Thus what section
190 contemplates is that the Magistrate takes
cognizance once he makes himself fully
conscious and aware of the allegations made. in
the complaint and decides to examine or test the
validity of the said allegations The Court
prescribes several modes in which a complaint
can be disposed of after taking cognizance. In
the first place. cognizance can be taken on the
basis of three circumstances : (a) upon receiving
a complaint of facts which constitute such
offence; (b) upon a police report of such facts;
and (c) upon information received from any
person other than the police officer or upon his
own knowledge, that an offence has been
committed. These are the three grounds on the
basis of which a Magistrate can take cognizance
and decide to. act accordingly. It would further
appear that this Court in the case of Narayandas
Bhagwandas Madhavdas v. The State of West
Bengal(1) observed the mode in which a
Magistrate could take cognizance of an offence
and observed as follows:-

"It seems to me clear however that
before it can be said that any Magistrate has
taken cognizance of any offence under section
19(1)

(a), Criminal Procedure Code, he, (1)
[1960] 1 S.C.R. 93,106.

3-951SCI/77 must not only have
applied his mind to the contents of the petition
but must have done so for the purpose of
proceeding in a particular way as indicated in
the subsequent provisions of this Chapterproceeding under- section 200 and thereafter
sending it for inquiry and report under section
202".

20. In the case of Hareram Satpathy Vs.
Tikaram Agarwala And Others 1978 4 SCC
58 the Hon'ble Apex Court has observed as
under:-

6.To the same effect is the decision of
this court in Chandra Deo Singh v. Prokar
Chandra Bose(3) where after a full discussion of
the matter it was held that at the time of taking a
decision whether a process should issue against
the accused or not what the Magistrate has to see
is whether there is evidence in support of the
allegations of the complainant so as to justify the
11 All. Gangaram & Ors. Vs. The State of U.P. & Anr.
581
issue of process and commencement of
proceedings against the accused, and not
whether the evidence is sufficient to warrant his
conviction.

7. From the foregoing it is crystal clear
that under section 190 of the Code of Criminal
Procedure the Magistrate takes cognizance of an
offence made out in the police report or in the
complaint and there is nothing like taking
cognizance of the offenders at that stage. As to
who actually the offenders involved in the case
might have been has to be decided by the
Magistrate after taking cognizance of the
offence.

8. In the instant case the SubDivisional Magistrate took cognizance of the
offence on the police report, after taking
cognizance of the offence and perusal of the
record he appears to have satisfied himself that
there were prima facie grounds for issuing
process against the respondents. In so doing the
Magistrate did not ill our Judgment exceed the
power vested in him under law.

10. This second point does not present
any difficulty. lt is well settled that once the
Magistrate has after satisfying himself prima
facie that there is sufficient material for
proceeding against the accused issued process
against him, the High Court cannot go into the
matter in exercise of its revisional jurisdiction
which
is
very
limited.
The
following
observations made in Smt. Nagwwa v. Veeranna
Shivalingappa Konjalai & ors (supra) are
apposite in this connection:

"It is true that in coming to a decision
as to whether a process would be issued the
Magistrate can tale into consideration inherent
improbabilities appearing on the face of the
complaint or in the evidence led by the
complainant in support of the allegations but
there appears to be a very thin line of
demarcation between a probability of conviction
of the accused and establishment of a prima
facie case against him. The Magistrate has been
given an undoubted discretion in the matter and
the discretion has to be judicially exercised by
him. Once the Magistrate has exercised his
discretion it is not for the High Court or even
this Court to substitute its own discretion for that
of the Magistrate or to examine the case on
merits with-a view to find out whether or not the
allegations in the complaint, if proved, would
ultimately end in conviction o the accused.
These considerations, in our opinion. are totally
foreign to the scope and ambit of an inquiry
under s. 202 of the Code of Criminal
Procedure."

21. In the case of S.K. Sinha Chief
Informant Vs. Videocon International Ltd. In
Appeal (Criminal) 175 of 2007 decided on
25.01.2008 the Hon'ble Apex Court has
observed as under:-

18. R.R. Chari v. State of Uttar
Pradesh, 1951 SCR 312 was probably the first
leading decision of this Court on the point.
There, the
police,
having
suspected
the
appellant-accused to be guilty of offences
punishable under Section 161 and 165 of the
Indian Penal Code (IPC) as also under the
Prevention of Corruption Act, 1947, applied to
the District Magistrate, Kanpur to issue warrant
of arrest on October 22, 1947. Warrant was
issued on the next day and the accused was
arrested on October 27, 1947. On March 25,
1949, the accused was produced before the
Magistrate to answer the charge-sheet submitted
by the prosecution. According to the accused, on
October 22, 1947, when warrant for his arrest
was issued by the Magistrate, the Magistrate was
said to have taken cognizance of offence and
since no sanction of the Government had been
obtained
before
that
date,
initiation
of
proceedings against him was unlawful. The
question before the Court was as to when
582 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of the offence could be said to have
been taken by the Magistrate under Section 190
of the Code. Considering the circumstances
under which cognizance of offence under sub-
section (1) of Section 190 of the Code can be
taken by a Magistrate and referring to Abani
Kumar Banerjee, the Court, speaking through
Kania, C.J. stated:

It is clear from the wording of the
section that the initiation of the proceedings
against a person commences on the cognizance of
the offence by the Magistrate under one of the
three contingencies mentioned in the section. The
first contingency evidently is in respect of non-

cognizable offences as defined in the
Criminal Procedure Code on the complaint of an
aggrieved person. The second is on a police report,
which evidently is the case of a cognizable offence
when the police have completed their investigation
and come to the Magistrate for the issue of a
process. The third is when the Magistrate himself
takes notice of an offence and issues the process. It
is important to remember that in respect of any
cognizable offence, the police, at the initial stage
when they are investigating the matter, can arrest a
person without obtaining an order from the
Magistrate. Under section 167(b) of the Criminal
Procedure Code the police have of course to put up
the person so arrested before a Magistrate within
24 hours and obtain an order of remand to police
custody for the purpose of further investigation, if
they so desire. But they have the power to arrest a
person for the purpose of investigation without
approaching the Magistrate first. Therefore in
cases of cognizable offence before proceedings are
initiated and while the matter is under investigation
by the police the suspected person is liable to be
arrested by the police without an order by the
Magistrate.

19. Approving the observations of Das
Gupta, J. in Abani Kumar Banerjee, this Court
held that it was on March 25, 1949 when the
Magistrate issued a notice under Section 190 of
the Code against the accused that he took
cognizance of the offence. Since before that day,
sanction had been granted by the Government,
the proceedings could not be said to have been
initiated without authority of law.

20. Again in Narayandas Bhagwandas
Madhavdas v. State of West Bengal, (1960) 1
SCR 93, this Court observed that when
cognizance is taken of an offence depends upon
the facts and circumstances of each case and it is
impossible to attempt to define what is meant by
taking cognizance. Issuance of a search warrant
for the purpose of an investigation or a warrant
of arrest of accused cannot by itself be regarded
as an act of taking cognizance of an offence. It is
only when a Magistrate applies his mind for
proceeding under Section 200 and subsequent
sections of Chapter XV or under Section 204 of
Chapter XVI of the Code that it can be
positively stated that he had applied his mind
and thereby had taken cognizance of an offence
[see also Ajit Kumar Palit v. State of W.B. &
Anr., (1963) Supp (1) SCR 953; Hareram
Satpathy v. Tikaram Agarwala & Anr., (1978) 4
SCC 58].

21. In Gopal Das Sindhi & Ors. v.
State of Assam & Anr., AIR 1961 SC 986,
referring to earlier judgments, this Court said:
We cannot read the provisions of Section 190 to
mean that once a complaint is filed, a Magistrate
is bound to take cognizance if the facts stated in
the complaint disclose the commission of any
offence. We are unable to construe the word
may in Section 190 to mean must. The reason is
obvious. A complaint disclosing cognizable
offences may well justify a Magistrate in
sending the complaint under Section 156(3) to
the police for investigation. There is no reason
why the time of the Magistrate should be wasted
when primarily the duty to investigate in cases
involving cognizable offences is with the police.
On the other hand, there may be occasions when
the Magistrate may exercise his discretion and
11 All. Gangaram & Ors. Vs. The State of U.P. & Anr.
583
take cognizance of a cognizable offence. If he
does so then he would have to proceed in the
manner provided by Chapter XVI of the Code.

23. In Darshan Singh Ram Kishan v.
State of Maharashtra, (1972) 1 SCR 571,
speaking for the Court, Shelat, J. stated that
under Section 190 of the Code, 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
said, taking cognizance does not involve any
formal action or indeed action of any kind. It
occurs as soon as a Magistrate applies his mind
to the suspected commission of an offence.
Cognizance, thus, takes place at a point when a
Magistrate first takes judicial notice of an
offence.

24. In Devarapalli Lakshminarayana
Reddy & Ors. v. V. Narayana Reddy & Ors.,
(1976) 3 SCC 252, this Court said:

It is well settled that when a
Magistrate receives a complaint, he is not bound
to take cognizance if the facts alleged in the
complaint, disclose the commission of an
offence. This is clear from the use of the words
"may take cognizance" which in the context in
which they occur cannot be equated with must
take cognizance". The word "may" gives a
discretion to the Magistrate in the matter. If on a
reading of the complaint he finds that the
allegations therein disclose a cognizable offence
and the forwarding of the complaint to the police
for investigation under Section 156(3) will be
conducive to justice and save the valuable time
of the Magistrate from, being wasted in
enquiring into a matter which was primarily the
duty of the police to investigate, he will be
justified in adopting that course as an alternative
to taking cognizance of the offence, himself.

This raises the incidental question :
What is meant by "taking cognizance of an
offence"
by
a
Magistrate
within
the
contemplation of Section 190?. This expression
has not been defined in the Code. But from the
scheme of the Code, the content and marginal
heading of Section 190 and the caption of
Chapter XIV under which Sections 190 to 199
occur, it is clear that a case can be said to be
instituted in a Court only when the Court takes
cognizance of the offence alleged therein. The
ways in which such cognizance can be taken are
set out in Clauses (a), (b) and (c) of Section
190(1). Whether the Magistrate has or has not
taken cognizance of the offence will depend on
the circumstances of the particular case
including the mode in which the case is sought
to be instituted and the nature of the preliminary
action, if any, taken by the Magistrate. Broadly
speaking, when on receiving a complaint, the
Magistrate applies his mind for the purposes of
proceeding
under
Section
200
and
the
succeeding sections in Chapter XV of the Code
of 1973, he is said to have taken cognizance of
the offence within the meaning of Section
190(1)(a). If, instead of proceeding under
Chapter XV, he has in the judicial exercise of
his discretion, taken action of some other kind,
such as issuing a search warrant for the purpose
of investigation, or ordering investigation by the
police under Section 156(3), he cannot be said to
have taken cognizance of any offence. [see also
M.L. Sethi v. R.P. Kapur & Anr., (1967) 1 SCR
520].

25. In the case on hand, it is amply
clear that cognizance of the offence was taken
by the Chief Metropolitan Magistrate, Mumbai
on May 24, 2002, i.e., the day on which the
complaint was filed, the Magistrate, after
hearing the counsel for the department, took
cognizance of the offence and passed the
following order: Mr. S.A.A. Naqvi, counsel for
the department is present. Complainant is public
servant. Cognizance is taken. Issue summons to
584 INDIAN LAW REPORTS ALLAHABAD SERIES
accused under Section 18(2)(3) of FERA, 73
read with Central Notification and r/w Section
68(1) of the said Act and r/w 56 (1)(i) and r/w
Section 49(3) (4) of FEMA, 1999. Summons
returnable on 7.2.2003 at 3 p.m. (emphasis
supplied)

26. Undoubtedly, the process was
issued on February 3, 2003. In our judgment,
however,
it
was
in
pursuance
of
the
cognizance taken by the Court on May 24,
2002 that a subsequent action was taken under
Section 204 under Chapter XVI. Taking
cognizance of offence was entirely different
from initiating proceedings; rather it was the
condition precedent to the initiation of the
proceedings. Order of issuance of process on
February 3, 2003 by the Court was in
pursuance of and consequent to taking
cognizance of an offence on May 24, 2002.
The High Court, in our view, therefore, was
not right in equating taking cognizance with
issuance of process and in holding that the
complaint was barred by law and criminal
proceedings were liable to be quashed. The
order passed by the High Court, thus, deserves
to be quashed and set aside.

27. It was also contended by the
learned counsel for the appellant that the
relevant date for considering the question of
limitation is the date of filing of complaint and
not taking cognizance or issuance of process by
a Court of law. In this connection, our attention
was invited by the counsel to Bharat Damodar
Kale & Anr. v. State of A.P., (2003) 8 SCC 559
and a recent decision of this Court in Japani
Sahoo v. Chandra Sekhar Mohanty, (2007) 7
SCC

394. In Japani Sahoo, one of us (C.K.
Thakker, J.), after considering decisions of
various High Courts as also Bharat Damodar
Kale, stated:

52. The matter can be looked at from
different angle also. Once it is accepted (and
there is no dispute about it) that it is not within
the domain of the complainant or prosecuting
agency to take cognizance of an offence or to
issue process and the only thing the former can
do is to file a complaint or initiate proceedings
in accordance with law. If that action of
initiation of proceedings has been taken within
the period of limitation, the complainant is not
responsible for any delay on the part of the
Court or Magistrate in issuing process or taking
cognizance of an offence. Now, if he is sought to
be penalized because of the omission, default or
inaction on the part of the Court or Magistrate,
the provision of law may have to be tested on
the touchstone of Article 14 of the Constitution.
It can possibly be urged that such a provision is
totally arbitrary, irrational and unreasonable. It
is settled law that a Court of Law would
interpret
a
provision
which
would
help
sustaining the validity of law by applying the
doctrine of reasonable construction rather than
making it vulnerable and unconstitutional by
adopting rule of litera legis. Connecting the
provision of limitation in Section 468 of the
Code with issuing of process or taking of
cognizance by the Court may make it
unsustainable and ultra vires Article 14 of the
Constitution.

22. In the case of Sunil Bharti Mittal Vs.
Central Bureau of Investigation AIR 2015 SC
1923 the Hon'ble Apex Court has observed as
under:-

"46. 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.
11 All. Gangaram & Ors. Vs. The State of U.P. & Anr.
585

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. 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 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.

48. However, there has to be a proper
satisfaction in this behalf which should be duly
recorded by the Special Judge on the basis of
material on record. No such exercise is done. In
this scenario, having regard to the aforesaid
aspects coupled with the legal position explained
above, it is difficult to sustain the impugned
order dated 19.03.2013 in its present form
insofar as it relates to implicating the appellants
and summoning them as accused persons.