# Manohar Lal v. The State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 237
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-16
- **Case number:** U/S 482/378/407 No. 759 of 2013
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manohar-lal-v-the-state-of-u-p-anr-46493
- **Pages:** 7

## Headnote

G.A.

Cognizance
taken
by
Magistrate-on
printed proforma without assigning any
reason-without
application
of
mindagainst
the
settled
judicial
normssummoning
order
quashed-Application
allowed.

List of Cases cited:

## Text

11 All. Manohar Lal Vs. The State of U.P. & Anr.
237
hand. If the Public Interest Litigation is
permitted to be misused the very purpose for
which it is conceived, namely to come to the
rescue of the poor and down trodden will be
defeated. The Courts should discourage the
unjustified litigants at the initial stage itself and
the person who misuses the forum should be
made accountable for it. In the realm of Public
Interest Litigation, the Courts while protecting
the larger public interest involved, should at the
same time have to look at the effective way in
which the relief can be granted to the people,
whose rights are adversely affected or at stake.
When their interest can be protected and the
controversy or the dispute can be adjudicated by
a mechanism created under a particular statute,
the parties should be relegated to the appropriate
forum, instead of entertaining the writ petition
filed as Public Interest Litigation."

(31) In view of aforesaid discussions, not
only there is no merit in this petition, but the
same is also mischievous and has only resulted
in wastage of precious Court's time, which could
have been better utilized for disposal of the
cases for genuine litigant(s).

(32) Accordingly, the instant petition is
dismissed with costs of Rs.5,00,000/- (Rupees
Five Lacs) to be paid/deposited by the petitioner
before the Senior Registrar of this Court within
three months, failing which, the learned Senior
Registrar of this Court shall initiate proceedings
for recovery of the aforesaid costs, in
accordance with law, from the petitioner as
arrears of land revenue. On receipt of the
aforesaid cost/amount, the Senior Registrar of
this Court shall transmit it to the account of
Uttar Pradesh Rani Lakshmi Bai Mahila
Samman Kosh, which has been notified as
Juvenile Justice Fund w.e.f. 4th January, 2017
under the Department of Women and Child
Development, Government of Uttar Pradesh in
pursuance of the provisions of Section 105 of
Juvenile Justice (Care & Protection of Children),
Act 2015 and a receipt showing that the amount
has actually been transmitted to the aforesaid
account shall be brought in the instant writ
petition. It is further provided that the amount of
the said cost shall be utilized for the welfare of
poor children.
----------
(2021)11ILR A237
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.11.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

U/S 482/378/407 No. 759 of 2013

Manohar Lal ...Applicant
Versus
The State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
R.P. Shukla, A.K. Pandey

Counsel for the Opposite Party:
G.A.

Cognizance
taken
by
Magistrate-on
printed proforma without assigning any
reason-without
application
of
mindagainst
the
settled
judicial
normssummoning
order
quashed-Application
allowed.

List of Cases cited:

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

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

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

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

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

6.H.N. Rishbud Vs St. of Delhi, AIR 1955 SC 196.
238 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Bhushan Kumar & anr. Vs St. (NCT of Delhi) & anr.,
AIR 2012 SC 1747

8. Basaruddin & ors. Vs St. of U.P. & ors., 2011 (1)
JIC 335 (All)(LB)

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

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

11. Ankit Vs St. of U.P. & anr. passed in Application
U/S 482 No.19647 of 2009 decided on 15.10.2009

12. Kavi Ahmad Vs St. of U.P. & anr. passed in
Criminal Revision No. 3209 of 2010

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

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

1. Heard Sri R.P. Shukla, learned counsel
for the applicant, learned AGA for the State and
perused the record.

2. In this case notice was issued to opposite
party no.2 vide order dated 21.2.2013 but till
date nobody has filed Vakalatnama on behalf of
opposite party no.2 nor counter affidavit has
been filed on his behalf and State.

3. This application under Section 482
Cr.P.C. has been filed for quashing of the
impugned cognizance and summoning order
dated 11.9.2012 and criminal proceedings of
Criminal Case No. 486 of 2012 (State Vs. Kallu
Ram and Manohar), initiated on the basis of
charge-sheet No. 62 of 2012 dated 13.7.2012,
arising out of Case Crime No.112 of 2012, under
Section 447 IPC and section 2/3 of Public
Property Act, Police Station Machharehta,
District Sitapur, pending in the Court of 1st
Additional Civil Judge (Junior Division)/Judicial
Magistrate, Sitapur. A further prayer has also
been made to stay the further proceedings of the
aforesaid case.

4. Learned counsel for the applicant
submits that on 21.06.2012, respondent no.2
lodged an F.I.R. against the applicant and one
Kallu Ram, which was registered as case crime
no.112/2012, under Section 447 I.P.C and
section 2/3 Public Property Act, Police Station
Machharehta District Sitapur.

5. As per the prosecution version of the
F.I.R, Gata No. 747 measuring area 0.065
Hectare is entered in revenue record as Chak
Road and the applicant and one Kallu Ram
encroached the Chak Road by planting the trees
of Eucalyptus thereon. The demarcation was
done several times but they are not removing
their possession from the land in question while
their 17 Eucalyptus trees have been demarcated
on the Chak Road.

6. Learned counsel for the applicant further
submits that the entire prosecution story is false.
No such incident took place and the applicant
has been falsely implicated in the present case
owing to annoyance of opposite party no.2, who
is Lekhpal of the area.

7. Learned counsel for the applicant 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 dated
13.07.2012 against the applicant and one Kallu
Ram under Section 447 IPC and section 2/3 of
Public Property Act; whereas he further submits
that on the charge-sheet submitted, the learned
Magistrate had taken cognizance on 11.09.2012
and the case was numbered as Criminal Case
No. 486 of 2012. The cognizance was taken on
the printed proforma by filling the accused
names, sections of IPC and Public Property Act
and date and in the said proforma, the learned
Magistrate without assigning any reason has
summoned the applicant for facing trial.
11 All. Manohar Lal Vs. The State of U.P. & Anr.
239

8. Learned counsel for the applicant further
submits that by the order dated 11.09.2012
cognizance taken by the learned Magistrate on
printed proforma without assigning any reason is
abuse of process of law.

9. Learned counsel for the applicant further
submits that after submission of charge sheet the
applicant has been summoned mechanically by
order dated 11.09.2012 and the court below
while summoning the applicant 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 applicant through a printed
order, which is wholly illegal.

10. It is vehemently urged by learned
counsel for the applicant that the impugned
cognizance
and
summoning
order
dated
11.09.2012 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 cognizance and summoning order
dated 11.09.2012 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.

11. 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.

12. Per contra, learned A.G.A. for the State
submitted
that
considering
the
material
evidences and allegations against the applicant
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 learned
Magistrate has taken cognizance on the printed
proforma. This case is being finally decided at
this stage without filing counter affidavit.

13. 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 Section
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 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."

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

15. 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
of a 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.

16. 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 non-cognizable 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 charge sheet under Section 173,
Cr.P.C., vide H.N. Rishbud vs. State of Delhi,
AIR 1955 SC 196. Thereafter, the learned
Magistrate has to take cognizance after
application of judicial mind and by reasoned
order and not in mechanical manner.

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.

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

"From a perusal of the impugned
order, it appears that the learned Magistrate on
the complaint filed by the complainant has
summoned the accused in a mechanical way
filling the date in the typed proforma. Learned
11 All. Manohar Lal Vs. The State of U.P. & Anr.
241
Magistrate while taking cognizance of the
offence on complaint was expected to go through
the allegations made in the complaint and to
satisfy himself as to which offences were prima
facies, being made out against the accused on
basis of allegations made in the complaint. It
appears that the learned Magistrate did not
bother to go through the allegations made in the
complaint and ascertain as to what offences
were, prima facie, being made out against the
accused on the basis of allegations made in the
complaint. Apparently, the impugned order
passed by the learned Magistrate suffers from
non-application of mind while taking cognizance
of the offence. The impugned order is not well
reasoned order, therefore, the same is liable to
be quashed and the petition deserves to be
allowed and the matter may be remanded back
to the learned Chief Judicial Magistrate,
Lakhimpur Kheri with direction to him to go
through the allegations made in the complaint
and ascertain as to what offences against the
accused were prima facie being made out
against the accused on the basis of allegations
made in the complaint and pass fresh order,
thereafter, he will proceed according to law."

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

20. 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.."

21. 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."
242 INDIAN LAW REPORTS ALLAHABAD SERIES

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

"8. In the beginning, the name of the
court, case number, state vs. ....... under section
......... P.S. ......... District ......... case crime No.
........ /2009 also have been printed and blanks
have been filled up by mentioning the case
number, name of the accused, section, P.S.
District etc. by some employee. Below afore
cited printed matter, the following sentence has
been mentioned in handwriting "अवभयुक्त अोंवकत
की वगरफ्तारी मा0 उच्च न्यायायल द्वारा Crl. Writ No.
19559/08 अोंवकत बनाम राज्य में पाररत आर्ेि
वर्नाोंक 5.11.08 द्वारा आर प पत्र प्राप्त ह ने तक
स्थवगत 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."

23. 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.

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

"6. Whenever any police report or
complaint is filed before the Magistrate, he has
to apply his mind to the facts stated in the report
or complaint before taking cognizance. If after
applying his mind to the facts of the case, the
Magistrate comes to the conclusion that there is
sufficient material to proceed with the matter, he
may take cognizance. In the present case, the
summoning order has been passed by affixing a
ready made seal of the summoning order on a
11 All. Abhishek Srivastava Vs. U.O.I.
243
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."

25. In view of the above, this Court finds
and observes that the conduct of the judicial
officers concerned in passing orders on printed
proforma by filling up the blanks without
application of judicial mind is objectionable and
deserves to be deprecated. The summoning of an
accused in a criminal case is a serious matter and
the order must reflect that Magistrate had
applied his mind to the facts as well as law
applicable thereto, whereas the impugned
cognizance and summoning order was passed in
mechanical manner without application of
judicial mind and without satisfying himself as
to which offence were prima-facie being made
out against the applicant on the basis of the
allegations made by the opposite party no.2, the
impugned cognizance and summoning order
passed by the learned Magistrate is against the
settled judicial norms.

26. In light of the judgments referred to
above, it is explicitly clear that the impugned
cognizance
and
summoning
order
dated
11.09.2012 passed by the 1st Additional Civil
Judge (Junior Division)/Judicial Magistrate,
Sitapur is cryptic and does not stand the test of
the law laid down by the Hon'ble Apex Court.
Consequently, the cognizance and summoning
order dated 11.09.2012 cannot be legally
sustained, as the Magistrate failed to exercise the
jurisdiction
vested
in
him
resulting
in
miscarriage of justice.

27. Accordingly, the present Criminal
Misc. Application U/S 482 Cr.P.C succeeds and
is allowed. The impugned cognizance and
summoning order dated 11.09.2012 passed by
the 1st Additional Civil Judge (Junior Division)/
Judicial Magistrate, Sitapur, is hereby quashed
in Criminal Case No. 486 of 2012 (State Vs.
Kallu Ram and Manohar) arising out of Case
Crime No.112 of 2012, under Section 447 IPC
and section 2/3, Public Property Act, Police
Station Machharehta, District Sitapur.

28. The 1st Additional Civil Judge (Junior
Division)/Judicial
Magistrate,
Sitapur,
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
two months from the date of production of a
copy of this order.
----------
(2021)11ILR A243
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.11.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

U/S 482/378/407 No. 3465 of 2021

Abhishek Srivastava ...Applicant
Versus
U.O.I. ...Opposite Party

Counsel for the Applicant: