# Niraj @ Banti Shahi & Ors v. State of U.P. & Anr

- **Citation:** (2025) 5 ILRA 1309
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-07
- **Case number:** Application U/S 482 No. 16456 of 2024
- **Bench:** Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/niraj-banti-shahi-ors-v-state-of-u-p-anr-53460
- **Pages:** 16

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 173, 190, 190(1)(1),
190(1)(b), 190(1)(b), 191(1)(c), 200, 203,
204, 207, 209, 260 & 482 - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Section
528 - Constitution of India,1950 - Article
226 - Indian Penal Code,1860 - Section
120-B, 147, 323, 420, 465, 467, 468, 471,
477-A, 447, 504 & 506 - Prevention of
Damage to Public Property Act, 1984-
Sections 3 & 4- Applications u/s 482 Cr.P.C. -
challenge to impugned summoning orders -
Court while adjudicating the batch of petitions,
expressed grave concern over the - (i) the
mechanical issuance of summoning orders by
trial courts, often using printed proforma
formats without applying judicial mind or
assigning reasons - such practice not only
undermines judicial discipline but also burdens
the system with avoidable litigation and
depriving accused persons of clarity regarding
allegations prior to the procedural stage under
Section 207 Cr.P.C. - (ii) furthermore, although
the statutory remedy of discharge under the
Cr.P.C. remains available before the trial court,
litigants
increasingly
bypass
this
route,
approaching the High Court under Section 482
Cr.P.C. for quashing of cognizance orders and
seeking "no coercive action" - such approach,
held to be legally untenable and procedurally
premature - Court reiterates that "taking
cognizance" does not necessitate a formal or
reasoned order, but requires the Magistrate to
apply judicial mind to the alleged commission of
offence with intent to proceed under law - (iii)
court also finds that, systemic lapses attributed
to insufficient judicial training, legacy practices,
excessive dependence on clerical staff, and a
backlog-centric
culture
that
compromises
judicial scrutiny - Held that, issuance of
summoning orders through pre-typed formats
and rubber-stamped templates is impermissible
and must be discontinued forthwith - directions
issued
for
institutional
reforms
including
sustained judicial training, enhanced supervisory
oversight, and legal sensitization of court staff -
Judicial Training and Research Institute and
relevant authorities directed to circulate the
judgment for compliance and future reference -
finding no material irregularity in the impugned
summoning orders, all applications dismissed -
however, liberty granted to the applicants to
reapply post compliance with Section 207 Cr.P.C.
(Para - 33, 34, 35, 37, 38, 40, 41)
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
Applications Dismissed. (E-11)

List of Cases cited:

## Text

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5 All. Niraj @ Banti Shahi & Ors. Vs. State of U.P. & Anr.
1309
under the inherent powers under Section
528 of BNSS (equivalent to Section 482
of the Cr.P.C.) if the conditions
outlined in paragraph 102 of Bhajan
Lal (supra) and paragraph 33 of
Necharika Infrastructure (supra) are
fulfilled?

68.
 The
Registrar
General
is
instructed to present the case record to the
Hon'ble Chief Justice within three days for
the formation of a Larger Bench consisting
of nine judges to address the referenced
issues.

69. The interim order granted earlier
will remain in effect until the investigation
concludes in case crime no.114 of 2025,
under Sections- 498A, 323, 504, 506, and
342 of the IPC, along with Sections 3 and 4
of the D.P. Act, at Police Station-Karvi,
District-Chitrakoot.
----------
(2025) 5 ILRA 1309
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.05.2025

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Application U/S 482 No. 16456 of 2024
Alongwith other connected cases

Niraj @ Banti Shahi & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
D.M. Tripathi, Nagendra Pratap Singh, Vimlendu
Tripathi

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 173, 190, 190(1)(1),
190(1)(b), 190(1)(b), 191(1)(c), 200, 203,
204, 207, 209, 260 & 482 - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Section
528 - Constitution of India,1950 - Article
226 - Indian Penal Code,1860 - Section
120-B, 147, 323, 420, 465, 467, 468, 471,
477-A, 447, 504 & 506 - Prevention of
Damage to Public Property Act, 1984-
Sections 3 & 4- Applications u/s 482 Cr.P.C. -
challenge to impugned summoning orders -
Court while adjudicating the batch of petitions,
expressed grave concern over the - (i) the
mechanical issuance of summoning orders by
trial courts, often using printed proforma
formats without applying judicial mind or
assigning reasons - such practice not only
undermines judicial discipline but also burdens
the system with avoidable litigation and
depriving accused persons of clarity regarding
allegations prior to the procedural stage under
Section 207 Cr.P.C. - (ii) furthermore, although
the statutory remedy of discharge under the
Cr.P.C. remains available before the trial court,
litigants
increasingly
bypass
this
route,
approaching the High Court under Section 482
Cr.P.C. for quashing of cognizance orders and
seeking "no coercive action" - such approach,
held to be legally untenable and procedurally
premature - Court reiterates that "taking
cognizance" does not necessitate a formal or
reasoned order, but requires the Magistrate to
apply judicial mind to the alleged commission of
offence with intent to proceed under law - (iii)
court also finds that, systemic lapses attributed
to insufficient judicial training, legacy practices,
excessive dependence on clerical staff, and a
backlog-centric
culture
that
compromises
judicial scrutiny - Held that, issuance of
summoning orders through pre-typed formats
and rubber-stamped templates is impermissible
and must be discontinued forthwith - directions
issued
for
institutional
reforms
including
sustained judicial training, enhanced supervisory
oversight, and legal sensitization of court staff -
Judicial Training and Research Institute and
relevant authorities directed to circulate the
judgment for compliance and future reference -
finding no material irregularity in the impugned
summoning orders, all applications dismissed -
however, liberty granted to the applicants to
reapply post compliance with Section 207 Cr.P.C.
(Para - 33, 34, 35, 37, 38, 40, 41)
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
Applications Dismissed. (E-11)

List of Cases cited:

1. Satendra Kumar Antil Vs Central Bureau of
Investigation & anr.- (2022) 10 SCC 51,

2. Awadh Kumar & ors.Vs St. of U.P. & Ors -
(2024) SCC OnLine All 4121

3. Kanti Devi & ors.Vs St. of U.P. & anr.-(2024)
SCC OnLine All 4248

4. Himanshu Kumar & ors. Vs St. of U.P. & anr.-
(2024) SCC OnLine All 3749

5. Rupesh & ors.Vs St. of U.P. & anr.-(2024) SCC
OnLine All 3751

6. Hemant Kumar Vs St. of U.P. & anr.-(2024)
SCC OnLine All 2429

7. Rajnath Yadav Vs St. of U.P. & anr.-(2024)
SCC OnLine All 2431

8. Radhe Shyam Vs St. of U.P. Thru. Addl. Chief
Secy. Home Lko & anr.-(2024) SCC OnLine All 2145

9. Basant Singh Vs St. of U.P. & anr.-(2024) SCC
OnLine All 1617

10. Ram Kewal Vs St. of U.P. & anr.-(2024) SCC
OnLine All 129

11. Hamid Raza Vs St. of U.P. & anr.-(2023) SCC
OnLine All 3973

12. Prabhakant & anr.Vs St. of U.P. & anr.-
(2023) SCC OnLine All 397

13. Satya Pal Vs St. of U.P. & anr.- (2023) 4 ADJ
345 (LB)

14. Mateen Ahmad Vs St. of U.P. Thru. The Prin.
Secy. Home Deptt Lko. & anr.-(2023) SCC
OnLine All 48

15. Ved Krishna Vs St. of U.P. Thru. Prin. Secy.
Home Civil Sectt. Lko. & anr.- (2023) SCC
OnLine All 3365

16. Krishna Kumar Vs St. of U.P. Thru. Prin.
Secy. Home & ors.- (2023) SCC OnLine All 38,
17. Pramod Kumar Shahi alias Mantu Shahi Vs
St. of U.P. & anr.- (2022) 4 CrlCC 484,

18. Sangam Lal Vs St. of U.P. - (2022) SCC
OnLine All 430,

19. Sanjay Jain & anr.Vs St. of U.P. & anr.-
(2022) SCC OnLine All 1505,

20. Gulab Singh & ors.Vs St. of U.P. & anr.-
(2022) SCC OnLine All 174

21. Jai Prakash Verma & anr.Vs St. of U.P. &
anr.- (2022) 5 ADJ 325

22. Dharmraj & ors.Vs St. of U.P. & anr.- (2021)
SCC OnLine All 1307

23. Surendra Kumar & ors.Vs St. of U.P. & anr.-
(2021) SCC OnLine All 1337

24. Chhabiley & ors.Vs St. of U.P. & anr.- (2020)
SCC OnLine All 1694

25. Vishnu Kumar Gupta & anr.Vs St. of U.P. &
anr.- (2020) SCC OnLine All 1363

26. Sudesh Bhadauria Vs St. of U.P. & ors.-
(2020) 3 ACR 2187

27. Deepak Jha Vs St. of U.P. & anr.- (2020) SCC
OnLine All 1893

28. Avdhesh Vs St. of U.P & anr.- (2019) SCC
OnLine All 5080

29. Mainuddin & ors.Vs St. of U.P. & anr.- (2018)
SCC OnLine All 4082

30. Robin L. Prasad Vs St. of U.P. & anr.-(2015)
SCC OnLine All 5192

31. Qavi Ahmad Vs St. of U.P. & anr.- (2011)
SCC OnLine All 1658

32. Lalan kumar Singh Vs St. of Mah. - (2022)
SCC OnLine SC 1383

33. Sunil Bharti Mittal Vs C.B.I. - (2015) 4 SCC
609

34. Bhushan Kumar Vs St. (NCT of Delhi) -
(2012) 5 SCC 424
5 All. Niraj @ Banti Shahi & Ors. Vs. State of U.P. & Anr.
1311
35. Darshan Singh Ram Kishan Vs St. of Mah. -
(1971) 2 SCC 654

36. Anil Katiyar & anr.Vs St. of U.P. -(2024) SCC
OnLine All 2584

37. Upasana Singh & anr.Vs St. of U.P. & anr.-
(2022) SCC OnLine All 474

38. Dhanwan Singh & ors.Vs St. of U.P. & anr.-
(2022) SCC OnLine All 143

39. Pawan Kumar Vs St. of U.P. & ors.- (2021)
SCC OnLine All 800

40. Sanjay & ors.Vs St. of U.P. & anr.-(2021)
SCC OnLine All 44

41. Techno Fabs (Proprietor Ship Firm) Vs St. of
U.P. & anr.- (2019) SCC OnLine All 7581

42. Abdul Rasheed Vs St. of U.P. - (2010) SCC
OnLine All 2819

43. Saurabh Dewana Vs St. of U.P. -(2010) SCC
OnLine All 509

44. Ankit Vs Sate of U.P. & anr.- (2009) SCC
OnLine All 2188,

45. Anil Katiyar & ors.Vs St. of U.P. through
CBCID Lucknow -(2024) SCC OnLine All 2584

46. Basaruddin Vs St. of U.P. -(2011) (1) JIC
335 (All)(LB)

47. Kavi Ahmad Vs St. of U.P. - Criminal
Revision No. 3209 of 2010

48. Abdul Rashid Vs St. of U.P. -(2010) 3 JIC
761 (All)

49. Bhushan Kumar Vs St. (NCT of Delhi) -
(2012) 5 SCC 424

50. Lal Kumar Singh Vs St. of Mah. -(2022) SCC
OnLine SC 1383

51. Pepsi Foods Ltd. Vs Special Magistrate -
(1998) 5 SCC 749

52. Bindeswari Prasad Bhardwaj Vs St. of U.P. -
(2016) SCC OnLine All 3397
53. Atul Kumar Jain & ors.Vs St. of U.P. & anr.-
(2016) SCC OnLine All 3343

54. Sanjeet Lal Vs St. of U.P. & anr.-(2015) SCC
OnLine All 8752

55. Munna Lal & ors.Vs St. of U.P. & anr.-(2008)
SCC OnLine All 1798

56. Kanti Bhadra Shah Vs St. of West Bengal -
(2000) 1 SCC 722

57. U.P. Police and Control Boards Vs Mohan
Meakins Ltd. -(2001) (Suppl.) ACC 21 (SC),

58. Fakhruddin Ahmad Vs St. of Uttaranchal &
ors., 2008 (17) SCC 157,

59. Emperor Vs Sourendra Mohan Chuckerbutty
- (1910) 37 SCC OnLine Calcutta 41

60. Legal Remembrancer Vs Abani Kumar
Banerji - (1950) SCC OnLine Cal 49,

61. Gopal Marwadi Vs Emperor - AIR 1943
Patna 245,

62. Ajeet Kumar Palit Vs St. of West Bengal -
AIR (1963) Supreme Court 765,

63. R.R. Chari Vs St. of U.P. -(1951) SCC
250

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

65. Kishun Singh & ors.Vs St. of Bihar - (1993)
2 SCC 16

66. Anil Saran Vs St. of Bihar - (1995) 6 SCC
142

67. Chief Enforcement Officer Vs Videocon
International Ltd. - (2008) 2 SCC 492

68. Fakhruddin Ahmad Vs St. of Uttaranchal &
anr.-(2008) 17 SCC 157

69. Mehmood Ul Rehman Vs Khazir Mohammad
Tunda & ors.- (2015) 12 SCC 420,

70.
Nagawwa
Vs
Veeranna
Shivalingappa
Konjalgi -(1976) 3 SCC 736
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
71. Kishun Singh Vs St. of Bihar -(1993) 2 SCC
16

72. St. of West Bengal Vs Mohd. Khalid -(1995)
1 SCC 654

73. Jagdish Ram Vs St. of Rajasthan -(2004) 4
SCC 432,

74. U.P. Pollution Control Board Vs Bhupendra
Kumar Modi - (2009) 2 SCC 147

75. U.P. Pollution Control Board Vs Mohan
Meakins Ltd. (2000) 3 SCC 745,

76. Chief Controller of Imports & Exports Vs
Roshan Lal Agarwal - (2003) 4 SCC 139,

77. Jagdish Ram Vs St. of Rajasthan - (2004) 4
SCC 432

78. U.O.I.Vs Prakash P. Hinduja & ors., 2003 6
SCC 195,

79. SWIL Ltd. VS St. of Delhi, (2001) 6 SCC 670,

80. St. of Gujarat Vs Afroz Mohammad
Hasanfatta -(2019) 1 SCR,

81. Pradeep S. Wodeyar Vs St. of Karnataka -
(2021) 19 SCC 62,

82. Chief Enforcement Officer Vs Videocon
International Limited (2008) 2 SCC 492.

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Heard learned counsel for the
applicants in all the matters, learned A.G.A.
for the State-respondent, Shri Vimlendu
Tripathi, learned Amicus Curiae and
perused the material on record.

2. The judiciary is the bedrock of
justice, and its effectiveness depends on
adherence to established legal principles.
However, a recurring issue plagues the
High Court under 482 Cr.P.C. jurisdiction-
the trial courts frequently pass summoning
orders in contravention of authoritative
binding
judgments
of
Constitutional
Courts. Despite consistent judgments that
clarify the legal framework governing the
taking of cognizance, trial courts continue
to issue such orders mechanically and
arbitrarily, often by inserting case details
into
pre-drafted
or
rubber-stamped
templates,
commonly
referred
to
as
"printed-proforma cognizance order".

3. This issue raises serious concerns
about judicial discipline, legal training and
judicial
accountability.
It
not
only
undermines the authority of higher Courts
but also leads to unnecessary litigation,
wastage of judicial resources, and grave
injustice to the litigants.

4. This is a standard practice of the
Bar that after filing of the charge sheet, the
moment learned Magistrate or the Special
Judge, as the case may be, takes the
cognizance of the offence on the charge
sheet and direct the accused to appear
before the court invariably without waiting
to reach to stage of Section 207 Cr.P.C., the
accused approaches this Court to set- aside
the summoning orders based on the
argument that the cognizance has taken by
the learned Judge mechanically without
application of judicial mind on a printed
proforma or rubber- stamped format by
inserting the name of the accused and
corresponding section of code by hand
without
assigning
any
reason,
and
simultaneously prays to quash the charge -
sheet.

5. The charge sheets are challenged
without reaching the stage of Section 207
Cr.P.C., thereby the accused are oblivious
of the fact as to what inculpatory material
has been collected by the investigating
officer, during the investigation, against
them. The reliance are placed on FIR, bail
5 All. Niraj @ Banti Shahi & Ors. Vs. State of U.P. & Anr.
1313
order or, and a direction issued by this
Court under Article 226 of the Constitution
of India for not taking any coercive action
against the accused either till the filing of
the charge sheet or rarely, till the
completion of the trial along with a report
under Section 173 Cr.P.C. containing only
name of the accused and section under
which the police has filed the charge sheet,
along with the list of witnesses.

6. In essence, significantly in large
number
of
cases-baring
few
casesinvariably two sets of repetitive arguments
are undertaken by the learned counsels; (i)
the cognizance order has been passed in a
mechanically manner without assigning
any ground on a printed and rubber stamp
proforma, and (ii) outrightly, makes a
prayer for "no coercive action" means the
applicant(s) may not be arrested during trial
and places reliance upon the case of
Satendra Kumar Antil v. Central Bureau of
Investigation and Another1 and further
seeks disposal with the liberty to file a
discharge application before the trial court.
These applicants have been invariably
decided by the Courts in a routine manner
by directing that no coercive action be
taken against the applicant until the filing
or disposal of a discharge application
before the trial court, and dispose of the
matter with a liberty to approach the trial
court for discharge.

6.1 It serves no purpose. The accused
already possesses a statutory right to file a
discharge application before the trial court;
and therefore there is no requirement to
approach the High Court for such relief. As
far as the relief of "no coercive action," is
concerned, it is not recognized in criminal
jurisprudence at the stage of quashing the
cognizance order. Furthermore, there is no
mandatory obligation upon litigants to
approach this Court merely to safeguard
rights already delineated in Satendra
Kumar Antil (supra). In the considered
view of this Court, the entire exercise is
futile and imposes an unnecessary burden
upon ill-informed litigants.

7. Based on the limited arguments,
discussed herein above, the applicants have
approached this Court under Section 482
Cr.P.C. for quashing of the criminal
proceedings of Criminal Case No.5293 of
2018 pending trial in the Court of learned
Civil Judge (Junior Division), Deoria. For
the purpose of deciding the core issue-
common in all applications- the Application
U/s 482 Cr.P.C. No. 16456 of 2024 has
been taken as lead case.

8. To address the issue, Shri Vimlendu
Tripathi,
learned
counsel,
has
been
appointed Amicus Curiae in a bunch of
matters dealing with the issue.

9. Learned Amicus Curiae, provided a
compilation of judgments along with a
copy of the written argument to assist the
Court and the same has been taken on
record.

10. After hearing learned Amicus
Curiae and on examination of compilation,
it is observed that this Court in series of
cases i.e. Awadh Kumar & Ors. v. State of
U.P. & Ors2; Kanti Devi and others v. State
of U.P. and another3; Himanshu Kumar
and others v. State of U.P. and another4;
Rupesh and others v. State of U.P. and
another5, Hemant Kumar v. State of U.P.
and another6; Rajnath Yadav v. State of
U.P. and another7; Radhe Shyam v. State of
U.P. Thru. Addl. Chief Secy. Home Lko and
Anr8; Basant Singh v. State of U.P. and
Another9; Ram Kewal v. State of U.P. and
Another10; Hamid Raza v. State of U.P. and
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
Another11; Prabhakant and Another v. State
of U.P. and Another12; Satya Pal v. State of
U.P. and Another13; Mateen Ahmad v. State
of U.P. Thru. The Prin. Secy. Home Deptt
Lko. and Another14; Ved Krishna v. State of
U.P. Thru. Prin. Secy. Home Civil Sectt.
Lko. And Another 15; Krishna Kumar v.
State of U.P. Thru. Prin. Secy. Home and
others16; Pramod Kumar Shahi alias Mantu
Shahi v. State of U.P. and another17;
Sangam Lal v. State of U.P.18; Sanjay Jain
and Another v. State of U.P. and Another19;
Gulab Singh and others v. State of U.P. and
Another20; Jai Prakash Verma and Another
v. State of U.P. and Another21; Dharmraj
and others v. State of U.P. and Another22;
Surendra Kumar and others v. State of U.P.
and Another23; Chhabiley and others v.
State of U.P. and Another24; Vishnu Kumar
Gupta and Another v. State of U.P. and
Another25; Sudesh Bhadauria v. State of
U.P. and others26; Deepak Jha v. State of
U.P. and Another27; Avdhesh v. State of U.P
and Another28; Mainuddin and others v.
State of U.P. and Another29; Robin L.
Prasad v. State of U.P. and Another30; Qavi
Ahmad v. State of U.P. and Another31, setaside the summoning orders and remanded
the cases back to the trial court to pass
afresh speaking order in accordance with
law primarily relying upon Supreme
Court's judgment in Lalankumar Singh v.
State of Maharashtra32; Sunil Bharti Mittal
v. C.B.I.33; Bhushan Kumar v. State (NCT of
Delhi)34; Darshan Singh Ram Kishan v.
State
of
Maharashtra35
and
various
judgments passed by the coordinate Bench
of this Court.

11. In Anil Katiyar and another v.
State of U.P.36; Upasana Singh and Another
v. State of U.P. and another37; Dhanwan
Singh and others v. State of U.P. and
Another38; Pawan Kumar v. State of U.P.
and others39; Sanjay and others v. State of
U.P.
and
Another40;
Techno
Fabs
(Proprietor Ship Firm) v. State of U.P. and
Another41; Abdul Rasheed v. State of U.P.42;
Saurabh Dewana v. State of U.P.43; Ankit v.
Sate of U.P. and Another44, the application
under Section 482 Cr.P.C. has been allowed
by
the
Court,
and
the
impugned
summoning order has been set-aside with
the direction to place the copy of the order
before the Registrar General to issue a
circular/memorandum in accordance with
law to all the District Judges of Uttar
Pradesh intimating them to inform all the
judicial officers not to use "printed
proforma" while passing judicial orders.
More or less similar directions have been
issued
in
all
the
cases,
referred
hereinabove.

11.1 In Saurabh Dewana case
(supra), this Court has gone one step ahead
and directed the learned District Judge to
collect blank printed proforma from all the
courts and destroy the same. It was also
directed to place the copy of order before
the Administrative Committee of this Court
for consideration and if approved, the
necessary circular may be issued.

11.2 In Ankit case (supra), this Court
again issued similar directions to the
learned District Judge, Saharanpur to seize
the blank printed proforma available in the
court of learned Judicial Magistrate and
destroy the same. Besides, a direction was
also issued to the Registrar General to place
a
copy
of
the
order
before
the
Administrative Committee.

11.3 In Sanjay case (supra), this
Court called an explanation from the
learned Chief Judicial Magistrate for
passing summoning order on printed
proforma, and a warning was also issued to
the learned Judge to remain vigilant and
5 All. Niraj @ Banti Shahi & Ors. Vs. State of U.P. & Anr.
1315
cautious in future while passing such
orders.

12. In Anil Katiyar and others v. State
of U.P. through CBCID Lucknow45, the
coordinate Bench of this Court by placing
reliance upon Basaruddin v. State of U.P.46,
Kavi Ahmad v. State of U.P.47, Abdul Rashid
v. State of U.P.48 judgments passed by
another coordinate Bench of this Court, and
Bhushan Kumar v. State (NCT of Delhi)49,
Lal Kumar Singh v. State of Maharashtra50,
Pepsi Foods Ltd. v. Special Magistrate51,
the judgements passed by Supreme Court
set-aside the impugned summoning order
dated 08.09.2015 by observing that in spite
of several orders passed by the Supreme
Court as well as this Court, learned
Magistrates are still passing orders and
taking cognizance on printed proforma
without applying judicial mind and in the
case at hand, there is nothing on record in
the summoning order to suggest that the
learned Magistrate perused the material
available on record before passing the
summoning order and taking cognizance on
the charge sheet. The Senior Registrar of
this Court at Lucknow Bench was also
directed to transmit a copy of the judgment
to all the learned District Judges and Chief
Judicial
Magistrate/Chief
Metropolitan
Magistrates of all District Courts of Uttar
Pradesh for immediate compliance and
information.

13. In Bindeswari Prasad Bhardwaj v.
State of U.P.52; Atul Kumar Jain and
others v. State of U.P. and Another53;
Sanjeet Lal v. State of U.P. & Another54,
and Munna Lal and others v. State of U.P.
and another55, the coordinate Benches of
this Court rejected the prayer of the
applicants to set-aside the impugned
summoning order and quash the charge
sheet by placing reliance on Kanti Bhadra
Shah v. State of West Bengal56, and U.P.
Police and Control Boards v. Mohan
Meakins Ltd.57 by recording the finding
that it is immaterial that the Magistrate has
taken the cognizance on printed proforma
or used a typed proforma for summoning
the accused. Ultimately, the question would
be of an application of mind by the
Magistrate. An order written or type
written, though not in any particular form
or proforma, may still suffer from nonapplication
of
mind. The
contention
regarding non-application of mind has to be
examined on the basis of all the relevant
aspects. When, the charge sheet discloses
sufficient material for proceedings against
an accused, it would be difficult to presume
"non-application of mind while passing
summoning order", and further held that
there is no legal requirement for the trial
Court
to
record
reasons
for
taking
cognizance
on
the
charge-sheet
and
summoning the accused.

14. Considering the foregoing, it is
appropriate to briefly discuss the factual
context of the present case to arrive at a fair
and well-founded determination. A FIR
Case Crime No.147, dated 29.5.2016,
under Section 147, 323, 504, 506, 447 IPC
read with Section 3/4 Prevention of
Damage to Public Property Act was
registered at P.S. Bhatparrani, District
Deoria for encroaching upon government
land besides other allegations of threat to
life and causing injury against Neeraj Shai,
Manoj Sahi, Hemant Sahi and Abhirendra
Sahi all sons of Druv Narayan Sahi and
Beeru son of Manoj. Upon the conclusion
of the investigation, a charge sheet was
filed against the applicants by the police,
under Sections 323, 504, 506, 447 IPC read
with Section 3/4 of the Prevention of
Damage to Public Property Act, on
17.06.2006, exonerating suspect Beeru. The
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance was taken on 07.12.2018 by the
learned Magistrate, and accordingly, the
applicants were summoned by the trial
Court. Aggrieved by the summoning order,
the applicants have filed this application to
set-aside the impugned summoning order
dated 7th December 2018.

15. Against this backdrop, the
following questions arise for consideration
(i) as to what is meant by the expression
"taking cognizance of an offence" by a
Magistrate or Special Judge, as the case
may be, within the contemplation of
Section 190 of the Code?, (ii) by directing
issuance of process to the accused in a case
of taking cognizance based upon a police
report under Section 190(1)(b) Cr.P.C.,
whether it is mandatory for the Court to
record reasons for its satisfaction that there
are sufficient grounds for proceeding
against the accused?, and (iii) by directing
issuance of process to the accused in a case
of taking cognizance based upon a
complaint under Section 190(1)(a) Cr.P.C.,
whether it is mandatory for the Court to
record reasons for its satisfaction that there
are sufficient grounds for proceeding
against the accused?

16. Before examining the rival
contentions and the judgments discussed
herein above, I shall briefly refer to the
relevant provisions of the Code. Chapter XIV
of the Code, comprising Sections 190 to 199,
addresses the statutory conditions required
for the initiation of criminal proceedings.
Since, admittedly, the controversy concerns
the taking cognizance by the learned
Magistrate within the meaning of Section
190, I shall confine my discussion to the said
provision. Section 190 of the Code includes
provisions on how magistrates shall take
cognizance of offences. Sub Section 1 of
Section 190 of the Code empowers a
Magistrate to take cognizance of an offence
in the manner laid down therein. It provides
that a Magistrate may take a cognizance of an
offence either, (a) upon receiving a complaint
of facts which constitutes such offence; or (b)
upon a police report of such facts; or (c) upon
information received from any person other
than a police officers, or upon his own
knowledge that such offence has been
committed58.

17. Chapter XV, containing Sections
200 to 203 Cr.P.C., deals with "Complaints to
Magistrates" and lays down the procedure
that shall be followed by the Magistrate when
taking cognizance of an offence on a
complaint. Similarly, Chapter XVI deals with
"Commencement of Proceedings before
Magistrates". However, I may note that, upon
receipt of a complaint or a police report, the
Magistrate has more than one course open to
them to determine the procedure and the
manner to be adopted for taking cognizance.

18. The first question is as to what is
meant by the expression "taking cognisance
of an offence" by a Magistrate within the
meaning of Section 190 of the Code could be
addressed in the light of the outlined
discussion. The word"cognizance" is not
defined in the Code. The Black's Laws
Dictionary defines cognizance; the range to
mental observation or awareness, the fact to
being aware, knowledge, (Law) the powers
given to a Court to deal with the given matter,
jurisdiction,
and
Lexicon-Webster's
Dictionary defines; jurisdiction, or the
exercise of jurisdiction, or power to try and
determine causes; judicially examination of a
matter, or power and authority to make it.

19. The Calcutta High Court in
Emperor
v.
Sourendra
Mohan
Chuckerbutty59, Stephen and Carnduff JJ.
have taken a view that for taking
5 All. Niraj @ Banti Shahi & Ors. Vs. State of U.P. & Anr.
1317
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. The same view
was approved by Das Gupta, J., in Legal
Remembrancer v. Abani Kumar Banerji60,
by holding that what constitutes "taking
cognizance" has not been defined in the
Code of Criminal Procedure, and I have no
desire to attempt to define it. 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) of
the Code of Criminal Procedure, he must
not only have applied his mind to the
contents of 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 Cr.P.C., and
thereafter sending it for inquiry and report
under Section 202 Cr.P.C.

20. In Gopal Marwadi v. Emperor61, it
was observed that the word "cognizance" is
used in the Code to indicate the point at
which the Magistrate or a judge first takes
judicial notice of an offence. It is a different
thing from the initiation of the proceedings.
It is the condition precedent to the initiation
of the proceedings by the Magistrate. The
court noticed that the word "cognizance" is
a word of somewhat indefinite import, and
it is perhaps not always used precisely in
the same sense.

21. The essential tenet of statutory
interpretation of the expression "taking
cognisance of an offence" has been
enunciated in Emperor v. Sourendra Mohan
Chuckerbutty
(supra)
and
Legal
Remembrancer v. Abani Kumar Banerji
(supra). In Ajeet Kumar Palit v. State of
West Bengal62, the Supreme Court observed
that the word "cognizance" has no esoteric
or mystic significance in criminal law or
procedure. It merely means-become aware
of and when use with reference to a Court
or Judge, to take notice of judicially and by
approving the observation of Calcutta High
Court in Emperor (supra) has held that
"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".

22. Approving the observation of the
Calcutta High Court in Emperor (supra),
and Legal Remembrancer case (supra), the
Supreme Court of India in R.R. Chari v.
State of U.P.63, Darshan Singh Ram Kishan
v. State of Maharashtra64, Kishun Singh
and others v. State of Bihar65, Anil Saran v.
State of Bihar66, Chief Enforcement Officer
v. Videocon International Ltd.67, has been
consistent
in
holding
that
"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 suspected commission
of an offence for the purpose of proceeding
to take subsequent steps towards inquiry
and trial.

23. Again, approving the observation
of the Calcutta High Court in Legal
Remembrancer case (supra), the Supreme
Court in Fakhruddin Ahmad v. State of
Uttaranchal and Another68 D.K. Jain, J.
speaking for the Bench, holds that it is clear
that being an expression of indefinite
import, it is neither practicable nor
desirable to precisely define as to what is
meant by "taking cognizance". Whether the
Magistrate has or has not taken cognizance
of the offence will depend upon the
circumstances of the particular case,
including the more in which the case is
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
sought to be instituted and nature of
preliminary action and further stressed that
nevertheless, it is well settled that before a
Magistrate can be said to have taken
cognizance of an offence, it is imperative
that he must have taken notice of the
accusations and applied his mind to the
allegations made in the complaint or in the
police report over the information received
from a source other than a police report, as
the case may be.

24. In Mehmood Ul Rehman v. Khazir
Mohammad Tunda
and others69,
the
Supreme Court after in-depth review of
prior judicial determinations in Pepsi
Foods Ltd (supra), Darshan Singh Ram
Kishan (supra), Emperor v. Sourindra
Mohan (supra), Nagawwa v. Veeranna
Shivalingappa Konjalgi70, Kishun Singh v.
State of Bihar71, State of West Bengal v.
Mohd. Khalid72, Jagdish Ram v. State of
Rajasthan73, Chief Enforcement Officer v.
Videocon International Ltd. (supra), U.P.
Pollution Control Board v. Bhupendra
Kumar Modi 74 held that no formal or
speaking order or reasoned orders are
required at the stage of section 190/204
Cr.P.C., there must be sufficient indication
on the application of mind by the
Magistrate
to
the
facts
constituting
commission
of
an
offence
and
the
statements recorded under section 200
Cr.P.C. so as to proceed against the
offender. The relevant para is extracted
hereinbelow:

"21. Under section 191(1)(b)
Cr.P.C. the Magistrate has the advantage of
a police report and under section 190(1)(c)
Cr.P.C.,
he
has
the
information
or
knowledge of a commission of offence. But,
under section 190(1)(a) Cr.P.C., he has
only a complaint before him. The Code
hence specifies that "a complaint of facts
which constitute such offences". Therefore,
if the complainant, on the face of it, does
not disclose a commission of any offence,
the Magistrate shall not take cognizance
under
section
190(1)(a)
Cr.P.C.
The
complaint is simply to be rejected."

25. In Pepsi Food Ltd. case (supra),
the Supreme Court has taken a view that
summoning of an accused in a criminal
case is a serious matter. Criminal law
cannot be initiated as a matter of course. It
is noted that the complainant has to bring
only
two
witnesses
to
support
his
allegations with the complaint to have the
criminal law set into motion. Therefore,
hold that the order of the Magistrate
summoning the accused in a complaint case
must reflect that he has applied his mind on
the facts of the case and the applicable law
thereto
whereas
in
Mohammad
Ul
Rahaman case (supra) it is held that under
section 190(1)(b) Cr.P.C. the Magistrate has
the advantage of a police report. Therefore,
the summoning of an accused based on the
police report is entirely on a different
footing vis-a-vis the summoning of an
accused in a complaint case. The same
view has been adopted by the Supreme
Court in State of Gujarat v. Afroz
Mohammad Hasanfatta (supra) by holding
that sufficiency of evidence to hold the
accused guilty, the merit of the matter and
defence pleas have to be examined at the
stage of trial and not at the stage of issuing
the process. Further, whether the statement
of witnesses is hearsay, whether it is
supported by contemporaneous exposition,
and whether it falls under "res gestae" are
to be determined only at the time of trial, in
a police case.

26. In Kanti Bhadra Shah case
(supra), the Supreme court held that there
is no legal requirement that the trial court
5 All. Niraj @ Banti Shahi & Ors. Vs. State of U.P. & Anr.
1319
should write an order showing the reason
for framing a charge, why should already
burdened trial court be further burdened
with such an extra work. The time has
reached to adopt all possible measures to
expedite the court procedures and to chalk
out measures to avert all roadblocks
causing avoidable delays. It a Magistrate is
to write detailed orders at different stages,
the snail-placed progress of proceedings in
trial courts would further be slowed down.
We are coming across interlocutory orders
of Magistrates and Sessions Judges running
into several pages. We can appreciate if
such a detailed order has been passed for
culminating the proceedings before them.
But, it is quite unnecessary to write detailed
orders at other stages, such as issuing
process, remanding the accused to custody,
framing of charges, passing over to next
stage with the trial.

(Emphases supplied)

27. In U.P. Pollution Control Board v.
Mohan Meakins Ltd.75, the position was
further clarified that it is not necessary to
pass a speaking order at the stage of taking
cognizance. In Chief Controller of Imports
& Exports v. Roshan Lal Agarwal76, the
Supreme Court again tested the legality and
impropriety of the cognizance order by
considering
the
situation
where
the
impugned order passed by the Magistrate
read as follows:

"8.....Cognizance taken. Register
the case. Issue summons to the accused."
(SCC p. 145, para. 9)

and it was held that: "9.....at the
stage of issuing the process to the accused,
the Magistrate is not required to record
reasons.

(Emphasis supplied)

27. The Kanti Bhadra Shah (supra),
and U.P. Pollution Control Board (supra)
were also referred to in the aforesaid
decision.

28. In Jagdish Ram v. State of
Rajasthan77, the Supreme Court again
reiterated that at the stage of issuing
process to the accused, the Magistrate is
not required to record the reasons.
However, he has to be satisfied that there is
sufficient ground, and such satisfaction is
not whether there is sufficient ground for
conviction.

29. Likewise, a three -judge Bench of
the Supreme Court in Sunil Bharti Mittal
case (supra) has held that cognizance of an
offence and prosecution of an offender are
two different things. Section 190 of the
Code empowered taking cognizance of an
offence and not dealing with offenders.
Therefore, cognizance can be taken even if
an offender is not known or named when
the complaint is filed or FIR registered.
Their names may transpire during the
investigation or afterwards.

30. If a person is not named as an
accused by the police in the final report
submitted, the court would be justified in
taking cognizance of the offence and
summoning the accused, if it feels that the
evidence and material collected during the
investigation justify prosecution of the
accused78. Even if the person has not been
joined as an accused in the charge, he can
be summoned at the stage of taking
cognizance under section 190 of the Code
without waiting for the trial to reach at the
stage of section 319 of the Code79.

31. In State of Gujarat v. Afroz
Mohammad Hasanfatta80, the order of
taking
cognizance
on
the
second
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
supplementary charge sheet and issuance of
summons
to
the
respondent
Afroz
Hasanfatta was challenged, which reads as
under:

"I take in consideration charge
sheet/complaint for the offence of sections
420, 465, 467, 468 IPC etc., summons to be
issued against the accused."

31.1 The Supreme Court in the
aforesaid case observed that in so far as
taking cognizance based on the police
report is concerned, the Magistrate has the
advantage of the charge sheet, statement of
witnesses and other evidence collected by
the
police
during
the
investigation.
Investigating Officer/SHO collects the
necessary evidence during the investigation
conducted
in
compliance
with
the
provisions of Criminal Procedure Code and
in accordance with rules of investigation.
Evidence and materials so collected are
lifted at the level of the Investigating
Officer, and thereafter, a charge sheet was
filed. In appropriate cases, the opinion of
the Public Prosecutor is also obtained
before filing the charge sheet. The court
thus has the advantage of the police report
along with the material placed before it by
the police.

31.2 Under Section 190 (1)(b)
Cr.P.C., where the Magistrate has taken
cognizance of an offence upon a police
report and the Magistrate is satisfied that
there is sufficient ground for proceeding,
the Magistrate directs issuance of process.
In case of taking cognizance of an offence
based upon the police report, the Magistrate
is not required to record reasons for issuing
the process. In cases instituted on a police
report, the Magistrate is only required to
pass an order issuing summons to the
accused. Such an order of issuing summons
to the accused is based upon subject to
the
satisfaction
of
the
Magistrate,
considering the police report and other
documents, and satisfying himself that
there is sufficient ground for proceeding
against the accused.

31.3 n a case based upon the police
report, at the stage of issuing the summons
to the accused, the Magistrate is not
required to record any reason. In case, if
the charge sheet is barred by law or where
there is lack of jurisdiction or when the
charge sheet is rejected or not taken on file,
then the Magistrate is required to record his
reasons for rejection of the charge sheet
and for not taking it on file.

31.4

Based
on
the
foregoing
reasoning, the Supreme Court in the
aforementioned case held that cognizance
of the offence- taken on the basis of the
charge sheet filed by the police under
Sections 420, 465, 467, 468, 471, 477A,
120B of the IPC - was valid, and that the
order issuing process, though it did not
explicitly record the reasons by the
Magistrate, did not suffer from any legal
infirmity.

32. Dr. D.Y. Chandrachud, J.,
speaking for the three-Judge Bench of the
Supreme Court in Pradeep S. Wodeyar v.
State of Karnataka 81 has referred and
relied upon Mehmood Ul Rehman (supra)
and observed;

"85. Moreover, Kurian Joseph, J.
writing for the two-Judge Bench has
clearly taken note of the difference between
Sections
190(1)(a)
and
190(1)(b)
:
(Mehmood Ul Rehman case [Mehmood Ul
Rehman v. Khazir Mohammad Tunda,
(2015) 12 SCC 420 : (2016) 1 SCC (Cri)
124] , SCC p. 430, para 21)
5 All. Niraj @ Banti Shahi & Ors. Vs. State of U.P. & Anr.
1321

"21.
Under
Section
190(1)(b)CrPC, the Magistrate has the
advantage of a police report and under
Section
190(1)(c)CrPC,
he
has
the
information or knowledge of commission of
an
offence.
But
under
Section
190(1)(a)CrPC, he has only a complaint
before him. The Code hence specifies that
"a complaint of facts which constitute such
offence". Therefore, if the complaint, on the
face of it, does not disclose the commission
of any offence, the Magistrate shall not
take
cognizance
under
Section
190(1)(a)CrPC. The complaint is simply to
be rejected."

**************

"91.