# Muralidhar Tiwari & Ors v. The State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 5 ILRA 2212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Application U/S 482 No. 3047 of 2017
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/muralidhar-tiwari-ors-v-the-state-of-u-p-anr-opp-parties-52055
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 155(2), 161, 169, 173,
190(1) & 482 - Indian Penal Code, 1860 -
Sections 34, 193, 195, 324, 307, 504 &
506 - Arms Act, 1959 - Section - 27 -
Constitution of India - Article 21 -
Application u/s 482 - for quashing the impugned
orders - an FIR was lodged against the opposite
party no. 2 - police filed Final Report - rejected
- court directed to summon the applicant to file
reply - police registered an NCR against the
applicants - impugned orders - Whether the
learned magistrate may summon the accused
person on a printed proforma without assigning
any reason and without satisfying himself as to
which offence were prima-facie being made out
against the applicants and take cognizance on
the police report is against the settled judicial
norms - held, impugned judgments are cryptic
and do not stand the test of the law laid down
by the hon'ble Apex court - consequently,
cannot be legally sustained - accordingly,
present application is allowed - the matter is
remitted back to court below to decide afresh
the issue for taking cognizance and summoning
the applicants and pass appropriate orders in
accordance with law. (Para - 23, 34, 35, 36, 37)

Application u/s 482 Allowed. (E-11)

List of Cases cited:

## Text

2212 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Accordingly, the revisionists
namely, Dr. Tanzeen Fatima, Mohammad
Azam Khan and Mohammad Abdullah
Azam Khan who have been convicted and
sentenced by the impugned judgment and
order dated 18.10.2023, be released on bail
on their furnishing a personal bond and two
reliable sureties each in the like amount to
the satisfaction of Court concerned during
pendency of these Criminal Revisions.

32. On acceptance of their bail bonds,
the trial court shall transmit the photo
copies thereof to this Court for being kept
on record of these Criminal Revisions.

33. Considering the nature of
allegations,
role
attributed
to
the
revisionists and evidence on record against
the revisionists, I find that the case of
revisionist Mohammad Azam Khan is
distinguishable from the case of Dr.
Tanzeen Fatima and Mohammad Abdullah
Azam Khan. Accordingly, the judgement
and order of conviction qua Mohammad
Azam Khan shall remain stayed/suspended
during pendency of his criminal revision,
but prayer for stay of judgement and order
of conviction qua Dr. Tanzeen Fatima and
Mohammad Abdullah Azam Khan is
rejected.

34. Three separate applications all
bearing
Application
No.
1
dated
23.02.2024 U/s 389(1) r/w 397/401
Cr.P.C., which have been moved for stay
the impugned judgment and order dated
18.10.2023 of conviction as affirmed by
appellate Court vide its judgment and order
dated 23.12.2023 stands disposed of
accordingly.
----------
(2024) 5 ILRA 2212
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2024
BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 3047 of 2017

Muralidhar Tiwari & Ors. ...Applicants
Versus
The State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Ayodhya Prasad Mishra

Counsel for the Opp. Parties:
Govt. Advocate

Criminal Law - Criminal Procedure Code,
1973 - Sections 155(2), 161, 169, 173,
190(1) & 482 - Indian Penal Code, 1860 -
Sections 34, 193, 195, 324, 307, 504 &
506 - Arms Act, 1959 - Section - 27 -
Constitution of India - Article 21 -
Application u/s 482 - for quashing the impugned
orders - an FIR was lodged against the opposite
party no. 2 - police filed Final Report - rejected
- court directed to summon the applicant to file
reply - police registered an NCR against the
applicants - impugned orders - Whether the
learned magistrate may summon the accused
person on a printed proforma without assigning
any reason and without satisfying himself as to
which offence were prima-facie being made out
against the applicants and take cognizance on
the police report is against the settled judicial
norms - held, impugned judgments are cryptic
and do not stand the test of the law laid down
by the hon'ble Apex court - consequently,
cannot be legally sustained - accordingly,
present application is allowed - the matter is
remitted back to court below to decide afresh
the issue for taking cognizance and summoning
the applicants and pass appropriate orders in
accordance with law. (Para - 23, 34, 35, 36, 37)

Application u/s 482 Allowed. (E-11)

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,
5 All. Muralidhar Tiwari & Ors. Vs. The State of U.P. & Anr.
2213
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 Karnatka, (2002)
4 SCC 578.

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

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 Central Bureau of
Investigation, 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 Shri Ayodhya Prasad
Mishra, learned counsel for the applicants
as well as Shri Rajeev Kumar Verma,
learned A.G.A. for the State and perused
the record.

2. The instant application under
Section 482 Cr.P.C. has been filed by the
applicants with a prayer to set aside the
order dated 20.11.2015/03.01.2017 passed
in Case No.568/2015 relating to N.C.R.
No.236/2015 under Section 193/195 I.P.C.
pending in the court of learned Additional
Chief Judicial Magistrate 1st, DistrictGonda and also to quash the N.C.R.
registered against the applicants as well as
cognizance order passed by learned
Additional Chief Judicial Magistrate 1st,
District-Gonda and during the pendency of
the present application the orders dated
20.11.2015/03.01.2017 may kindly be kept
in abeyance, in the interest of justice.

3. Learned Counsel for the
applicants submits that the facts of the
present case are that the applicants have
lodged criminal cases at police station
concerned and supported them through
their statements in all cases along with
independent witnesses under section 161
Cr.P.C. before investigating officer and
they also adduced documentary material to
establish their case before investigating
officer including medical reports in respect
of causing injuring to Baijnath Shukla and
Shyam Narayan Tiwari caused by opposite
party No.2 as well as some other persons
but since the investigating officer connived
with accused persons in all cases and reason
is best known to him in spite of proper, fair
and just investigation filed final report,
that's why the initial version of the all
criminal cases filed by applicants were
found
truthful
supported
with
other
material provided to the investigating
officer, the learned magistrate rejected the
final report submitted by investigating
officer in all cases and desired to summon
the applicants to submit their reply and
thereafter without going through with the
material in two cases the learned Magistrate
passed an order for further investigation in
the cases, therefore at this stage even for a
moment if the allegation are accepted of
false allegations in the F.I.R. as alleged by
opposite party No.2 then the same cannot
be said to be true fact for commission of
any offence under section 193/195 I.P.C.
because the allegation of the applicants
2214 INDIAN LAW REPORTS ALLAHABAD SERIES
made in their F.I.R.s have been given
truthfulness by judicial order as passed by
the learned Magistrate concern refusing to
accept the final report submitted by
investigating officer, therefore, no question
for false allegations in any F.I.R. by any
persons (applicants) is made out, therefore,
the prosecution under section 193/195
I.P.C. was not to be admitted to be
continued by police officials as well as also
by judicial magistrate concerned in the
present case hence being serious illegality
for passing order under section 155 (2)
Cr.P.C. by learned Magistrate concerned is
nothing but tried to initiate illegal criminal
prosecution by invoking jurisdiction under
section
155(2)
Cr.P.C.
against
the
applicants otherwise there was no such
stage to pass any order on such application
by the Magistrate concerned except to
reject even the N.C.R.

4. Learned Counsel for the applicants
further submits that it is significant to
mention here that an F.I.R. was registered
on 09.08.2009 by Muralidhar Tiwari
(applicant no. 1) vide F.I.R. no. 191/2009
under section 324/34 1.P.C. and section 27
of Arms Act against the opposite party
No.2- Venktesh Datt Ram Pandey, at Police
Station- Sadar Bazar, District- North Delhi
in which after filing final report under
section 169 Cr.P.C. the protest application
filed by applicant No. 1 (Muralidhar
Tiwari) in the court of learned Metro
Politan Magistrate, Tees Hajari Court,
District- North Delhi is pending.

5. Learned Counsel for the applicants
further submits that on 30.01.2012 an F.I.R.
was registered by Shyam Narain Tiwari
(applicant no. 2) at Police Station Kotwali
Dehat, District- Gonda vide crime no.
122/2012 under section 307/504/506 I.P.C.
in which under the pressure of opposite
party No.2, the police filed final report and
after filing protest application the learned
Additional Chief Judicial Magistrate Ist,
district- Gonda has passed an order for
further investigation in the matter which is
also pending.

6. Learned Counsel for the
applicants
further
submits
that
on
15.07.2015 an F.I.R. has been lodged by
applicant No.3 (Baijnath Shukla) against
named accused persons in the F.I.R. which
was registered vide crime no. 220/2015
under section 307 1.P.C. at Police Station-
Kotwali Dehat, District- Gonda. The
opposite party No.2 has no concern from
this F.I.R. because he has not been named
by applicant No.3, but being influential
person he was supporting the named
accused person in this F.I.R. and on his
pressure the police filed final report under
section 169 Cr.P.C. in which protest
application was filed before learned
A.C.J.M. Ist, district- Gonda by applicant
No.3 in which the learned Magistrate has
been pleased to pass an order for further
investigation in the case and investigation
is still going on.

7. Learned Counsel for the applicants
further submits that the order passed after
filing of final report by learned Magistrate
concerned relating crime nos. 220/2015 and
122/2012 for further investigation of the
case and final report submitted by
investigating officer is bad in the eyes of
law.

8. Learned Counsel for the applicants
further submits that admittedly in all cases
due process of law has been adopted
without filing any false evidence before
court of law in any case. The procedure
provided for need full remedy under
Cr.P.C. as well as through judicial
5 All. Muralidhar Tiwari & Ors. Vs. The State of U.P. & Anr.
2215
pronouncement by Hon'ble Apex court of
India as well as by this Court has been
adopted by applicants in all cases. No
question of filing false evidence arises at
this stage.

9. Learned Counsel for the applicants
further submits that there are no documents
purporting to be forged or false filed by
applicants in any judicial proceedings. The
protest applications have been filed in
support of the allegations made by persons
concerned
of
all
cases
on
which
investigation started but investigating
officer either in connivance of opposite
party No.2 or without fair, proper and just
investigation under pressure of accused
persons filed final report before court
concerned on which, the court concerned
being not satisfied with final report
submitted by investigating officer and after
going through the allegations made in the
F.I.R. as well as material collected by him
during investigation refused to accept the
final report and according to procedure
established by law invited to the applicants
to submit their reply against final report and
on that the applicants filed protest
applications in all cases before the court
concerned. The learned Magistrate going
through with material available on record
passed an order for further investigation in
two cases relating to crime no. 122/2012
and 220/2015 which are still going on in
District Gonda. So far as case relating
District- North Delhi is concerned the
hearing is going on protest application filed
by applicant No.1- Muralidhar Tiwari
before court concerned.

10. Learned Counsel for the
applicants
further
submits
that
on
02.10.2015 an application at Police staion
Kotwali
Dehat,
district-Gonda
was
submitted
by
opposite
party
No.2
(Venktesh Datt Ram Pandey) stating
therein that because of village Pradhan
election enmity, the applicants-Muralidhar
tiwari, Shaym Narayan tiwari and Baijnath
Shukla
resident
of
same
village-
Banghusara Khas, have registered several
false cases by concocting false story at
Police Station- Kotwali Dehat as well as
other Police Station against opposite party
No.2 as the family members of the opposite
party No.2 as well as he himself is very
aggrieved and also faced mental and
physical torture. The accused persons are
lodging F.I.R. against him and his other
family members and also their supporters
out of which all cases were found false as
the investigating officer filed final report in
all cases. He further submits that the
opposite party No.2 also filed list of all
allegedly false cases registered against him
and others. It is further alleged that because
of cases based on false and concocted facts,
the final report was submitted suggesting
that under conspiracy by way of false
evidence they are torturing the opposite
party No.2. It is further alleged that in all
cases in which false evidence were
prepared for awarding conviction to the
opposite party No.2 also have been narrated
in the list of the cases. In the aforesaid
circumstances it was requested that the
criminal case be registered against the
applicants-Muralidhar,
Baijnath
and
Shyam Narayan. The application was
submitted on 02.10.2015 and case was
registered as N.C.R. no. 0236/2015 under
section 155 Cr.P.C. registering a case under
section 193/195 L.P.C. by the police of
police station- Kotwali Dehat. District-
Gonda against the petitioners.

11. Learned Counsel for the
applicants further submits that it is well
settled preposition of law as well as
according to the provision of Indian Penal
2216 INDIAN LAW REPORTS ALLAHABAD SERIES
code the provision of section 193 and 195
1.P.C. can be invoked only if false evidence
has been filed by any person against any
person intentionally in judicial proceeding
as evidence then only prosecution under
section 193 and 195 I.P.C. can be invoked
against that person. Therefore according to
the mandate and the statute of I.P.C. the
allegation made in the application which
was later registered as N.C.R. was not
required to invoke jurisdiction of section
193/195 1.P.C. for prosecuting any person,
thus, the same was not maintainable
because there is no case in which any
judicial proceeding was started and any
false evidence was adduced by the persons
concerned but the police of concerned
police station under the pressure of
opposite party No.2 being an influential
person, the police has taken the application
filed by opposite party No.2 and knowingly
and intentionally and registered a N.C.R.
against the applicants though this is no
stage as per F.I.R. itself for registering a
case under section 193 and 195 LP.C.
registered a criminal case as N.C.R. under
section 193/195 LP.C.

12. Learned Counsel for the
applicants
further
submits
that
an
application under section 155(2) Cr.P.C.
was filed by opposite party No.2 on
03.10.2015 in the court of learned
Additional Chief Judicial Magistrate Ist,
District- Gonda and the case was registered
before court as case no. 568/2015 and the
learned Magistrate without considering
legal question regarding the stage of
maintainability of F.I.R. /N.C.R. passed an
order on 20.11.2015 with the direction for
investigation of the case to the investigating
officer.

13. Learned Counsel for the
applicants further submits that learned
Magistrate also given an opinion in his
order dated 20.11.2015 and admitted this
fact that "the false evidence though has
been alleged given at police station but not
before any court". Meaning thereby that
learned Magistrate was very well aware
about the maintainability of the application
for registration of the F.I.R. as per
allegation
that
the
same
was
not
maintainable even then he accepted the
request of the opposite party No.2 and
passed an order for investigation of the case
and due to this reason the police
investigated the matter and filed charge
sheet against the applicants under section
193/195 I.P.C. only.

14. Learned Counsel for the
applicants further submits that after filing
of charge sheet by investigating officer the
learned court concern taken cognizance and
summoned the applicants for facing trial
proceeding and being aggrieved by filing of
charge sheet and cognizance order under
section 193/195 L.P.C. the applicants
approached to this Ccourt and filed a
petition under section 482 Cr.P.C. vide
Criminal
Miscellaneous
Case
no.
2496/2017 wherein they challenged the
charge sheet as well as cognizance order
and, the said petition was decided by
passing final order on 20.04.2017.

15. Learned Counsel for the
applicants further submits that the question
involved in the present application is for
protection of fundamental rights enshrined
under article 21 of the Constitution of India
which provides that the personal liberty to
person shall not be disturbed except
procedure established by law. In the present
case for launching criminal prosecution
case under Section 193/195 I.P.C. the basic
requirement is that there must be judicial
proceeding pending before any court of law
5 All. Muralidhar Tiwari & Ors. Vs. The State of U.P. & Anr.
2217
and intentionally false evidence has been
filed in judicial proceedings by a person's
but in the present case no such stage has
arisen as admitted by the learned magistrate
in his own order dated 20.11.2015
accepting that no false evidence has been
given in any judicial proceeding by the
applicants. Merely submission of any
application does not amount that the
investigation is mandatory in each and
every case as per settled preposition of law.

16. Learned Counsel for the
applicants
further
submits
that
the
allegations made in the N.C.R. by opposite
party
No.2
are
vague,
frivolous,
unwarranted even without the applicability
of the stage of section 193/195 I.P.C. hence
the same are liable to be set aside and all
proceedings are also liable to be terminated
based on N.C.R. no. 236/2015 as well as
subsequently through the order dated
20.11.2015 passed by learned magistrate
concern.

17. Learned counsel for the applicants
further submits that by the order dated
20.11.2015/03.01.2017passed
in
Case
No.568/2015
relating
to
N.C.R.
No.236/2015 under Section 193/195 I.P.C.
pending in the court of learned Additional
Chief Judicial Magistrate 1st, DistrictGonda whereby cognizance has been taken
by the learned Magistrate on printed
proforma without assigning any reason is
abuse of process of law and the same was
without application of mind and was passed
in a routine manner.

18. Learned counsel for the applicants
further submits that after submission of
charge sheet and cognizance order on
printed proforma, the applicants have been
summoned mechanically by order dated
03.01.2017 and the trial court while
summoning the applicants has materially
erred and did not follow the dictum of law
as propounded by the Hon'ble Apex Court
in various cases that summoning in
criminal case is a serious matter and the
trial court without dwelling into material
and visualizing the case on the touch stone
of probability should not summon accused
persons to face criminal trial. He further
submits that the trial court 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
applicants. The trial court has summoned
the applicants through a printed order,
which is wholly illegal.

19. It is vehemently urged by learned
counsel for the applicants that the
impugned cognizance/summoning order
dated
20.11.2015/03.01.2017
are
not
sustainable in the eyes of law, as the same
have been passed in mechanical manner
without applying the judicial mind, because
on the face of record itself it is apparent that
impugned cognizance/summoning order
dated 20.11.2015/03.01.2017 has been
passed by the Magistrate concerned on
printed proforma by filling up the blanks,
therefore the same are liable to be quashed
by this Court.

20. Learned counsel for the applicants
has given much emphasis that if the
cognizance/summon has been taken on the
printed
proforma,
the
same
is
not
sustainable.

21. Per contra, learned A.G.A. for the
State submits 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,
2218 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, application is liable to be
dismissed but has not denied that the leaned
Magistrate has taken cognizance on the
printed proforma. Accordingly, this case is
being finally decided at this stage without
issuing notice to opposite party no.2 and
without calling for a counter affidavit.

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

23. 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 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."

24. 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 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.

25. 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.
5 All. Muralidhar Tiwari & Ors. Vs. The State of U.P. & Anr.
2219

26. 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 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.

27. 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
proceedIn
the
case
of
Basaruddin & others Vs. State of U.P. and
others, 2011 (1) JIC 335 (All)(LB), this
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 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."

28. 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
2220 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

29. 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."

30. In the case of Darshan Singh
Ram Kishan v. State of Maharashtra ,
(1971) 2 SCC 654, the 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."

31. 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 "अभियुक्त अंभित िी भिरफ़्तारी
मा० उच्च न्यायालय द्वारा Crl. Writ No.
19559/08 अंभित बनाम राज्य में पाररत आदेश
भदनांि 5.11.08 द्वारा आरोप पत्र प्राप्त होने ति
स्थभित 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
5 All. Muralidhar Tiwari & Ors. Vs. The State of U.P. & Anr.
2221
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."

32. 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.

33. 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 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."
2222 INDIAN LAW REPORTS ALLAHABAD SERIES

34. 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
summoning
order
was
passed
in
mechanical manner without application of
judicial mind and without satisfying
himself as to which offence were primafacie being made out against the applicants
on the basis of the allegations made by the
complainant. the impugned cognizance
order passed by the learned Magistrate is
against the settled judicial norms.

35. In light of the judgments referred
to above, it is explicitly clear that the order
dated 20.11.2015/03.01.2017 passed in
Case No.568/2015 relating to N.C.R.
No.236/2015 under Section 193/195 I.P.C.
pending in the court of learned Additional
Chief Judicial Magistrate 1st, DistrictGonda are cryptic and do not stand the test
of the law laid down by the Hon'ble Apex
Court.
Consequently,
the
cognizance/summoning
order
dated
20.11.2015/03.01.2017 cannot be legally
sustained, as the Magistrate concerned
failed to exercise the jurisdiction vested in
him resulting in miscarriage of justice.

36.

Accordingly,
the
present
Application U/S 482 Cr.P.C succeeds and
is
allowed.
The
impugned
cognizance/summoning
order
dated
20.11.2015/03.01.2017 passed in Case
No.568/2015
relating
to
N.C.R.
No.236/2015 under Section 193/195 I.P.C.
pending in the court of learned Additional
Chief Judicial Magistrate 1st, DistrictGonda are hereby quashed.

37. The matter is remitted back to
Additional Chief Judicial Magistrate-Ist,
District-Gonda directing him to decide
afresh the issue for taking cognizance and
summoning the applicants 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.
----------
(2024) 5 ILRA 2222
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 12489 of 2023

Nirogi Venkata Sesha Pavan Kumar
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Party

Counsel for the Applicant:
Nadeem Murtaza, Aditya Vikram Singh,
Gaurav Mehrotra

Counsel for the Opp. Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections - 482 - Indian Penal Code,
1860 - Sections 406, 420, 506, 120-B &
436 - Application u/s 482 - for quashing the
entire criminal proceedings initiated u/s 406,
420, 506, 120-B & 436 IPC and for quashing the
charge sheet and order of taking cognizance and
summoning the applicants - FIR - investigation
- police filed charge sheet - 1 against coaccused - which was challenged in another
application u/s 482 - later, police on the basis of