# Kaju & Anr v. State of U.P. & Anr

- **Citation:** (2020) 2 ILRA 1471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-27
- **Case number:** Application U/S 482 No. 2071 of 2020
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaju-anr-v-state-of-u-p-anr-45520
- **Pages:** 5

## Headnote

Law-Code
of
Criminal
Procedure,1973- Section 190(1) - "Cognizance"
is taken when the Magistrate applies his judicial
mind to the facts mentioned in a complaint or to a
police report or upon information received from any
person regarding an offence.

At the stage of taking congnizance, Magistrate can
simply form an opinion as to whether the case is fit
for taking and committing the matter for trial or not.

B. Criminal Law-Code of Criminal Procedure,
1973 - Section 204- Issuance of process takes
place only after taking cognizance of the offence
when, after application of mind, the Magistrate finds
a prima facie case made out against the offender.

C. Criminal Law-Code of Criminal Procedure,
1973- Section 482- Scope- Disputed questions of
fact cannot be adjudicated upon by this Court in
exercise of power conferred u/s 482 Cr.P.C.

At this stage only prima facie case is to be seen and
the disputed defence of the accused cannot be
considered which can only be adjudicated upon in
the course of trial.

Prayer for quashing refused- Applicants directed to
surrender before the court within 30 days.
 (Para 6,7,8,11,12,14,15,17)

Application u/s 482 Cr.Pc disposed of.

Case law discussed: -

## Text

2 All. Kaju & Anr. Vs. State of U.P. & Anr.
1471
to the disputed question of fact, which cannot
be adjudicated upon by this Court in exercise
of power conferred under Section 482 Cr.P.C.
At this stage only prima facie case is to be seen
in the light of the law laid down by Supreme
Court in cases of R.P. Kapur Vs. State of
Punjab, A.I.R. 1960 S.C. 866, State of
Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)
426, State of Bihar Vs. P.P.Sharma, 1992
SCC
(Cr.)
192
and
lastly
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283. The disputed defence of the
accused cannot be considered at this stage.

9. On aforesaid reason, the application
under section 482 Cr.P.C. is devoid of merit and
hence the same is dismissed.

10. However, it is provided that if the
applicants appear and surrender before the court
below within one month from today and apply
for bail, then the bail application of the applicants
be considered and decided expeditiously in view
of the settled law laid by Hon'ble Supreme
Court. For a period of one month from today or
till the disposal of the application for grant of bail
whichever is earlier, no coercive action shall be
taken against the applicants. However, in case,
the applicants do not appear before the Court
below within the aforesaid period, coercive
action shall be taken against them.
----------
(2020)02ILR A1471

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 No. 2071 of 2020

Kaju & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Brij Raj, Sri Ram Sagar Yadav

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

A.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 190(1) - "Cognizance"
is taken when the Magistrate applies his judicial
mind to the facts mentioned in a complaint or to a
police report or upon information received from any
person regarding an offence.

At the stage of taking congnizance, Magistrate can
simply form an opinion as to whether the case is fit
for taking and committing the matter for trial or not.

B. Criminal Law-Code of Criminal Procedure,
1973 - Section 204- Issuance of process takes
place only after taking cognizance of the offence
when, after application of mind, the Magistrate finds
a prima facie case made out against the offender.

C. Criminal Law-Code of Criminal Procedure,
1973- Section 482- Scope- Disputed questions of
fact cannot be adjudicated upon by this Court in
exercise of power conferred u/s 482 Cr.P.C.

At this stage only prima facie case is to be seen and
the disputed defence of the accused cannot be
considered which can only be adjudicated upon in
the course of trial.

Prayer for quashing refused- Applicants directed to
surrender before the court within 30 days.
 (Para 6,7,8,11,12,14,15,17)

Application u/s 482 Cr.Pc disposed of.

Case law discussed: -

1. Akash Garg Vs. St. of U.P. (2011) 11 ADJ
849.

2. R.P. Kapur Vs. St. of Punj., A.I.R. (1960)
S.C. 866,

3. St. of Har. Vs. Bhajan Lal, (1992) SCC (Cr.)
426,

4. St. of Bih. Vs. P.P.Sharma, (1992) SCC (Cr.)
192
1472 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq & anr. (Para-10) (2005) SCC (Cr.)
283

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

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

2. This application under Section
482, Cr.P.C. has been filed for quashing
the
entire
criminal
proceedings
of
complaint case No. 2018 of 2018 arising
out of case crime No. 163 of 2017, under
Sections 308, 504 IPC, police station-
Kotwali Katra, district Mirzapur as well as
charge
sheet
dated
17.12.2017
and
cognizance order dated 6.4.2018, pending
in the court of Chief Judicial Magistrate,
District Mirzapur.

3. The contention of the counsel for
the applicants is that the applicants have
been falsely implicated in this case and the
learned trial court without disclosing the
words that the prima facie no case is made
out against the applicants, cognizance
order is passed by the learned Magistrate
without application of mind and on this
basis the learned counsel for the applicant
submitted that the congizance order is bad
in the eye of law and is liable to quash.

4. Learned counsel for the applicant
also relied upon paragaraph Nos. 6 and
12 of the judgement passed by Hon'ble
Allahabad High Court in the case of
Akash Garg Vs. State of U.P. reported in
[2011 (11) ADJ 849].

"6. It is well settled that the
Magistrate is not bound by the conclusion
of the Investigating Officer. He is
competent under law to form his own
independent opinion on the basis of the
materials
collected
during
the
investigation. The Magistrate may or may
not agree with the conclusion of the
Investigating Officer. If the Investigating
Officer submits charge sheet, in that
eventuality the Magistrate may differ from
the charge sheet and refuse to take
cognizance by holding that no case is
made out. In a case where the final report
is submitted the Magistrate may on
perusal of the materials placed in support
of the final report opine that the
conclusion of the Investigating Officer is
not correct and the offence is made out. In
that eventuality, the Magistrate may reject
the final report and take cognizance of the
offence.

12. It is also well settled that
at the stage of taking cognizance of an
offence, the Magistrate is not required
to examine thoroughly the merits and
demerits of the case and to record a
final verdict. At that stage he is not
required to record even reasons, as
expression of reasons in support of the
cognizance may result in causing
prejudice to the rights of the parties
(complainant or accused) and may also
in due course result in prejudicing the
trial. However, the order of the
Magistrate must reflect that he has
applied his mind to the facts of the
case. In other words at the stage of
taking cognizance what is required
from the Magistrate is to apply his
mind to the facts of the case including
the evidence collected during the
investigation and to see whether or not
there is sufficient ground (prima facie
case) to proceed with the case. The law
does not require the Magistrate to
record reasons for taking cognizance
of an offence."
2 All. Kaju & Anr. Vs. State of U.P. & Anr.
1473

5. What is meant by 'taking
cognizance' in regard to an offence by a
competent Magistrate is not defined or
described in the Code of Criminal
Procedure, 1973 (Cr.P.C.) or any other act.
However the term has acquired a definite
connotation through well settled judicial
pronouncements.

6. The term 'taking cognizance'
actually means 'become aware of', but in
reference to a Court or a Judge, it means
'to take notice of judicially'. The term has
no mystic significance in criminal law. In
practice 'taking cognizance' means taking
notice of an offence for initiation of
proceedings under Section 190 Cr.P.C.

7. 'Cognizance' refers to the point
when the court first takes judicial notice of
an offence by not only applying its mind to
the contents of the complaint/police report,
but also proceeding further as provided
further in Chapter XIV of the Cr.P.C.

8. Taking cognizance includes either
taking steps to see whether there is basis
for initiating a judicial proceeding or
initiating a judicial proceeding against an
offender by the Magistrate.

9. Ordinarily, a citizen can initiate
criminal proceedings against an offence by
two means. He may either lodge an FIR
before the Police Officer (Station House
Officer) if the offence is a cognizable one,
or he may lodge complaint before a
competent Judicial Magistrate irrespective
of whether the offence is cognizable or
non-cognizable. Any Magistrate of the
first class and the duly empowered second
class Magistrate may take cognizance of
any offence for further proceedings.

10. As per Section 190(1) an
empowered
Magistrate
may
take
cognizance of any offence-

a). Upon receiving a complaint
of facts which constitute such an 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 an offence has been committed."

11. Thus the cognizance is taken
when the Magistrate applies his judicial
mind to the facts mentioned in a complaint
or to a police report or upon information
received from any person regarding an
offence.

12. The issuance of process by the
court occurs at a subsequent stage duly
after considering the materials placed
before it. It happens when the Magistrate
decides to proceed against the offender
whom a prima facie case is clearly made
out. Taking cognizance of an offence is
not equivalent to issuance of process:
issuance of process takes place only after
taking cognizance of the offence. When a
Magistrate applies his mind for issue of
process, he must be held to have taken
cognizance of the offences the complaint
put forth.

13. The cognizance and summoning
order passed by learned Magistrate dated
18.11.2019 is read as under:-

आज
वकवकववेचक
िद्वारद्वा
अपरद्वाध ससों० 163/2017 कवे िद्वारद्वा
अवकभययक्तगण कद्वाजज
1474 INDIAN LAW REPORTS ALLAHABAD SERIES
कव वकवकद्वास पद्वाण्डवेय कवे वकवरूद्ध
धद्वारद्वा
-308,504 कभद्वा.ि.ससों. कवे
अपरद्वाध मम
आररोप पत्र प्रस्तयत वकयद्वा गयद्वा हहै।
आररोप पत्र एकवसों समस्त कवे स डद्वायरर
कद्वा
अकवलरोकन वकयद्वा। अपरद्वाध कद्वा
प्रससोंजद्वान ललए जद्वानवे कवे ललए
आधद्वार पयद्वायामि हहै।
अततः अपरद्वाध कद्वा प्रससोंजद्वान ललयद्वा
जद्वातद्वा हहै।
िद्वाणण्डक कवद्वाि पसोंजर ककत हरो।
वकवकववेचक िद्वारद्वा अवकभययक्तगण करो
आररोप पत्र कवे समय न्यद्वायद्वालय
उपणन्धथथित हरोनवे
हवेतय सजचनद्वा प्रवेलसत कक न्धथिर ,
अवकभययक्तगण
न्यद्वायद्वालय
मम
उपणन्धथथित नहह ों आयद्वा।
अततः अवकभययक्तगण विनद्वासोंक 0607-2018
कवे
ललए
िद्वारद्वा
अजमद्वानतर य
अलधपत्र तलब हरो।

14.

At
the
stage
of
taking
congnizance, Magistrate can simply form
an opinion as to whether the case is fit for
taking and committing the matter for trial
or not. In this present case, learned trial
court clearly express his opinion that he
perused all the records and clearly
indicated that the material placed before
him are sufficient to proceed with the case.

15. In the present case detail
cognizance order as well as summoning
order is passed by the learned Magistrate
with judicial application of mind as the
same reflects that the learned Magistrate
has applied his mind to material available
on record and materials are sufficient to
proceed
against
the
applicants.
The
cognizance order is not a proforma order,
every aspect is touched by the learned
Magistrate and applicants failed to adduce
any evidence which caused prejudice to
them so cognizance order is perfectly valid
and there is no occasion to quash the same.

16. So the case law relied by the
learned counsel for the applicants, is not
applicable in the present case.

17. From the perusal of the material
on record and looking into the facts of the
case at this stage it cannot be said that no
offence is made out against the applicants.
All the submission made at the bar relates
to the disputed question of fact, which
cannot be adjudicated upon by this Court
in exercise of power conferred under
Section 482 Cr.P.C. At this stage only
prima facie case is to be seen in the light
of the law laid down by Supreme Court in
cases of R.P. Kapur Vs. State of Punjab,
A.I.R. 1960 S.C. 866, State of Haryana
Vs. Bhajan Lal, 1992 SCC (Cr.) 426,
State of Bihar Vs. P.P.Sharma, 1992 SCC
(Cr.)
192
and
lastly
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283. The disputed defence of
the accused cannot be considered at this
stage. Moreover, the applicants have got a
right of discharge according to the
provisions prescribed in Cr.P.C. as the
case may be through a proper application
for the said purpose and he is free to take
all the submissions in the said discharge
application before the Trial Court.

18. The prayer for quashing the
entire proceedings of criminal case,
cognizance order as well as charge sheet is
refused.
2 All. Satish & Anr. Vs. State of U.P. & Anr.
1475

19. However, it is provided that if
the applicants appear and surrender
before the court below within 30 days
from today and apply for bail, then the
bail application of the applicant be
considered and decided expeditiously in
view of the settled law laid by Hon'ble
Supreme Court. For a period of 30 days
from today or till the disposal of the
application for grant of bail whichever is
earlier, no coercive action shall be taken
against the applicants. However, in case,
the applicants do not appear before the
Court below within the aforesaid period,
coercive action shall be taken against
them.

20. With the aforesaid directions,
this application is finally disposed of.
----------
(2020)02ILR A1475

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE
THE HON'BLE RAJENDRA KUMAR-IV, J.

Application U/S 482 No. 2984 of 2020

Satish & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Shishir Kumar Tiwari

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

A.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 319- In order to
summon a person under Section 319 Cr.P.C., mere
taking of name is not sufficient but there must be
something more to show implication of person who
has been sought to be summoned.

In view of the law settled by the Hon'ble Supreme
Court, the degree of satisfaction required for
summoning an accused u/s 319 Cr.Pc is
more than that required at the time of
framing of Charge.

B.
Criminal
Law-Code
of
Criminal
Procedure,1973- Section 482- At the
stage of summoning of the applicants on
the basis of statements for trial, probable
defence of accused-applicants summoned
under Section 319 Cr.P.C. cannot be
examined for the first time under the
jurisdiction of 482 Cr.P.C. by this Court-

Defence of the accused can only be
appreciated
in
the
trial
by
leading
evidence.
Disputed
questions
of
fact
cannot be considered by the Court u/s 482
Cr.Pc.

On facts, It cannot be said that there is no
material whatsoever and also that on mere
probability of complicity the applicants
have been summoned , rather there is
appropriate
material
and
evidence
to
justify summoning of applicants under
Section 319 Cr.P.C. (Para 15, 16, 18)

Application u/s 482 rejected.

Case law discussed:-

1. Anil Arya Vs. St. of U.P. & ors., Crl.
Rev. No. 1216 of 2005, decided on
09.09.2016

2. Hardeep Singh Vs. St. of Punj. & ors.
(2014) 3 SCC 92

3. Dharam Pal & ors. Vs. St. of Har. &
anr. (2004) 13 SCC 9

4. Brijendra Singh & ors. Vs. State of
Raj. (2017) 7 SCC 706

5. Shiv Prakash Mishra Vs. St. of U.P &
ors. (2019) 7 SCC 806

6. Kailash Vs. St. of Raj. & anr. (2008) 14
SCC 51