# Pawan Kumar v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-18
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-v-state-of-u-p-ors-43250
- **Pages:** 6

## Text

328 INDIAN LAW REPORTS ALLAHABAD SERIES

BRIEF FACTS OF THE CASE:

Brief facts, as unfolded from the record as
under:

3. The First Information Report dated
29.3.2018 under Sections 420, 467, 468, 471,
I.P.C.
at
Police
Station
Kotwali
Shahr,
Bulandshahr, has been lodged by the opposite
parties no. 2 and 3 against the applicant and
unknown employees of Tehsil, Dadri, stating
that the father of the first informants/opposite
party nos. 2 & 3 was the owner and recorded
tenure holder of agriculture land of Khata No.
986, Gata No. 1578/4 area 0.4680 hectare. After
the death of their father they became owner of
the aforesaid land on the basis of registered will
and are in possession of the said agriculture
land, their names have been mutated in the
record of rights. The applicant prepared a forged
fabricated sale deed dated 30.5.1974/19.6.1974
in the name of his father Ram Chandra from the
first informants' father Raghuver Dayal relating
to the land of area 1818 sq. yards of Gata No.
1578/4. The applicant replaced the aforesaid sale
deed by another sale deed which had been
executed by Teekam Singh in favour of Smt.
Satyawati Devi wife of Shive Kumar on
30.5.1974 and registered on 19.6.1974 as
document no. 1813 Bahi no. 1 Zild no. 994-997
page no. 279/87-88 with the help of the
employees of concerned department. The
applicant tried to mutate the land of the first
informants in his favour on the basis of a forged
sale deed. When the first informants came to
know about the fake registration of the sale
deed, the first information report was lodged.

SUBMISSIONS
BEFORE
THE
COURT:

4. Learned counsel for the applicant
assailed that the impugned order is being passed
without applying judicial mind in taking
cognizance on printed proforma wherein, dates
have been filled up by the court employee and
initial signature has been made by the Magistrate
concerned. The learned counsel has submitted
that the dispute raised by the first informant is
purely a civil dispute. The applicant filed a suit
against the first informants on 30.9.2014 with
regard to the property in question for permanent
injunction. The court of Civil Judge (Junior
Division) Court No. 2, Bulandshahar granted
interim injunction vide order dated 30.9.2014.
Thereafter, the first informants appeared in the
court below in Suit No. 217 of 2014 and prayed
to restrain the applicant from alienating the
property in question. The Investigating Officer
without proper investigation filed charge sheet
in the present case despite the fact that the
matter with regard to the same property, on the
basis of sale deed dated 19.6.1974 is pending
consideration before the Civil Court in suit No.
217 of 2014 in which issues have been framed
on 12.1.2019.

5. It has been further submitted that the
charge sheet has been filed by the investigating
officer in a mechanical manner without
considering the evidence on record and the
Magistrate did not apply his judicial mind at the
time of taking cognizance and passed the
impugned order dated 18.3.2019 in an arbitrary
manner without applying judicial mind on
printed proforma by filling up the dates.
Therefore, the impugned charge-sheet, the
cognizance order and further proceedings
pursuant thereto is an abuse of the process of the
court and is liable to be quashed. He relied upon
the decision of this Court in Ankit Vs. State of
U.P. and another, JIC 2010 (1) 432.

6. Learned A.G.A. has vehemently
opposed the arguments made by the learned
counsel for the applicant and submitted that as
per allegations made in the FIR and the evidence
collected during the investigation, it makes out a
prima facie cognizable offence against the
applicant, but it is admitted that the order
11 All. Pawan Kumar Vs. State of U.P. & Ors.
329
impugned has been passed by the concerned
Magistrate on the printed proforma.

7. Certified copy of the impugned order
dated 18.9.2019 filed as Annexure SA -3 of the
Supplementary affidavit. By the order dated
18.9.2019, learned Magistrate took cognizance
in the matter against the applicant. At this stage
it is relevant to extract the aforesaid order as
under:

"आज धदनाांक .......... को उि अपराि
सांख्या में धववेचक ने आरोप पत्र मय केस डायरी
प्रेधषत धकया है। सम्पूणम केस डायरी का धवधिनुसार
पररसीलन धकया गया अपराि का प्रसांज्ञान धलया गया
आिार पयामप्त है। दजम रधजस्टर हो। नकले दी जाये,
एवां अधभयुि गणोां को समन द्वारा धदनाांक ......... के
धलए तलब धकया जाये।"

सी० जे० एम०

बुलन्दिहर

Hence, foremost question arises for
consideration
is
whether
the
impugned
cognizance order dated 18.9.2019 has been
passed by the concerned Magistrate after
applying judicial mind?

The next incidental question is as to
what is meant by the expression "taking
cognizance of an offence" by a Magistrate
within the contemplation of Section 190 of the
Code?

8. To examine the validity of the impugned
order, it would be convenient to refer the
relevant statutory provisions as well as the case
laws relating to the subject.

9. The power of the court to take
cognizance of the offence is laid in Section 190
of the Code, which reads as under:

"190. Cognizance of offences by
Magistrate.-(1) Subject to the provisions of this
Chapter any Magistrate of the first class, and
any Magistrate of 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 informations 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."

10. Thus, it is trite that the Magistrate is
not bound by the opinion of the investigating
officer and he is competent to exercise his
discretion in this behalf, irrespective of the view
expressed by the investigating officer in police
report and decide whether an offence has been
made out or not. This is because the purpose of
police report under Section 173(2) of the Code,
which will contain the facts discovered or
unearthed by the police as well as the conclusion
drawn by the police therefrom is primarily to
enable the Magistrate to satisfy himself whether
on the basis of police report and material
referred therein, a case for cognizance is made
out or not. (Vide: Fakhurddin Ahmad v. State
of Uttaranchal1)

11. In Darshan Singh Ram Kishan v.
State of Maharashtra, AIR 1971 SC 2372,
while considering Section 190 of the Code of
1908, the Apex Court observed 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.
Cognizance, therefore, takes place at a point
when a Magistrate first takes judicial notice of
an offence. This is the position whether the
330 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

12. While considering the expression
"taking cognizance" of an offence by a
Magistrate within the contemplation of Section
190
of
the
Code,
in
Devarapally
Lakshminarayana Reddy & Ors. v. V.
Narayana Reddy & Ors. AIR 1976 SC 1672,
(3 Judge) the Supreme Court has observed as
under: (AIR p. 1677 para 14)

"14.
This
raises the
incidental
question: What is meant by "taking cognizance
of an offence" by the Magistrate within the
contemplation of Section 190? This expression
has not been defined in the Code. But from the
scheme of the Code, the content and marginal
heading of Section 190 and the caption of
Chapter XIV under which Sections 190 to 199
occur, it is clear that a case can be said to be
instituted in a court only when the court takes
cognizance of the offence alleged therein. The
ways in which such cognizance can be taken
are set out in clauses (a), (b) and (c) of
Section 190 (1). Whether the Magistrate has
or has not taken cognizance of the offence will
depend on the circumstances of the particular
case including the mode in which the case is
sought to be instituted, and the nature of the
preliminary action, if any, taken by the
Magistrate.
Broadly
speaking,
when
on
receiving a complaint, the Magistrate applies
his mind for the purpose of proceeding under
Section 200 and the succeeding sections in
Chapter XV of the Code of 1973, he is said to
have taken cognizance of the offence within
the meaning to Section 190 (1) (a). If, instead
of proceeding under Chapter XV, he, has in
the judicial exercise of his discretion, taken
action of some other kind, such as issuing a
search
warrant
for
the
purpose
of
investigation, or ordering investigation by the
police under Section 156 (3), he cannot be
said to have taken cognizance of any offence."

13. In State of W. B. & Anr. v. Mohd.
Khalid & Ors., (1995) 1 SCC 684, the Supreme
Court after taking note of the fact that the
expression had not been defined in the Code,
observed as under: (SCC p. 696 para 43-44)

"43.....Section 190 of the Code talks of
cognizance of offences by Magistrates. This
expression has not been defined in the Code. In
its broad and literal sense, it means taking
notice of an offence. This would include the
intention of initiating judicial proceedings
against the offender in respect of that offence or
taking steps to see whether there is any basis for
initiating judicial proceedings or for other
purposes. The word 'cognizance' indicates the
point when a Magistrate or a Judge first takes
judicial notice of an offence. It is entirely a
different thing from initiation of proceedings;
rather it is the condition precedent to the
initiation of proceedings by the Magistrate or
the Judge. Cognizance is taken of cases and not
of persons.

44.
Cognizance
is
defined
in
Wharton's Law Lexicon 14th Edn., at page 209.
It reads:

"Cognizance
(Judicial),
knowledge
upon which a judge is bound to act without
having it proved in evidence: as the public
statutes of the realm, the ancient history of the
realm, the order and course of proceedings in
Parliament, the privileges of the House of
Commons, the existence of war with a foreign
State, the several seals of the King, the Supreme
Court and its jurisdiction, and many other
things. A Judge is not bound to take cognizance
of current events, however notorious, nor of the
law of other countries."....

14. In Fakharuddin Ahmad v. State of
Uttaranchal (2008) 17 SCC 157, the Supreme
Court, considering the scope of expression
11 All. Pawan Kumar Vs. State of U.P. & Ors.
331
"cognizance" it was observed after referring the
judgments of cases Ajit Kumar Palit v. State of
W.B.2,
Emperor
v.
Sourindra
Mohan
Chuckerbutty3, Chief Enforcement Officer v.
Videocon International Ltd.4 as under: (SCC
p. 162- 63 para 16-17)

"16. From the aforenoted judicial
pronouncements, 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 mode in which the case is sought to be
instituted and the nature of the preliminary
action.

17. Nevertheless, it is well settled that
before the 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 or the
information received from a source other than a
police report, as the case may be, and the
material filed therewith. It needs little emphasis
that it is only when the Magistrate applies his
mind and is satisfied that the allegations, if
proved, would constitute an offence and decides
to initiate proceedings against the alleged
offender, that it can be positively stated that he
has taken cognizance of the offence. Cognizance
is in regard to the offence and not the offender."

15. In Prasad Shrikant Purohit v. State
of Maharashtra & Anr. (2015) 7 SCC 440, the
Supreme Court has observed as under: (SCC p.
480-81 para 68)

"68. Mr. Lalit, learned counsel in the
course of his submissions relied upon Ajit
Kumar Palit v. State of W.B.5. In the said
decision with reference to the expression
"cognizance" a three-Judge Bench of this Court
has explained what is really meant by the said
expression in the following words in para 19
(AIR p. 770)

"19. ...The word 'cognizance' has no
esoteric or mystic significance in criminal law
or procedure. It merely means become aware of
and when used with reference to a court or
Judge, to take notice of judicially. It was stated
in Gopal Marwari v. Emperor6, by the learned
Judges of the Patna High Court in a passage
quoted with approval by this Court in R. R.
Chari v. State of U. P.7 (SCR at P. 320: AIR at
p. 210) that the word 'cognizance' was used in
the Code to indicate the point when the
Magistrate or Judge takes judicial notice of an
offence and that it was a word of indefinite
import, and is not perhaps always used in
exactly the same sense. As observed in
Sourindra Mohan Chuckerbutty v. Emperor8
(ILR at p. 416 SCC online Cal)

''...taking cognizance does not involve
any formal action, or indeed action of any kind;
but occurs as soon as a Magistrate, as such,
applies his mind to the suspected commission of
an offence.'

Where the statute prescribes the
materials on which alone the judicial mind shall
operate before any steps is taken, obviously the
statutory requirement must be fulfilled."

In the above-extracted portion the
reference made to the earlier judgment in R. R.
Chari's case reported in R.R.Chari9 (AIR at p.
210, para 8) that the word 'cognizance' was used
in the Code to indicate the point when the
Magistrate or Judge takes judicial notice of an
offence throws sufficient light to state that at
that very moment when a Magistrate takes
judicial notice of an offence, the requirement of
cognizance of such offence will get fulfilled.
Therefore, the said decision also fully supports
our conclusion on the question of taking
cognizance by the competent court."

16. Upon keeping in mind the position of
law, it is settled that taking cognizance is a well-
332 INDIAN LAW REPORTS ALLAHABAD SERIES
known but undefined concept in criminal
jurisprudence. The Code of Criminal Procedure
does not define the word "cognizance". The
dictionary meaning of the word "cognizance" is
'judicial hearing of a matter'. Taking cognizance
of offence by Magistrate under the Criminal
Procedure Code is laid down under Section 190
(1) of the Code. Under that provision a
Magistrate may take cognizance of any offence
in three different ways, namely, (i) upon
receiving a complaint of facts which constitute
such offence; (ii) upon a report in writing of
such facts made by any police officer; and (iii)
upon information received from any person
other than a police officer or upon his own
knowledge or suspicion, that such offence has
been committed. The only restriction contained
in Section 190 is that the power to take
cognizance is subject to the provisions of this
Chapter.

17. This Court in the case of Megh Nath
Gupta & Anr. v. State of U.P. & Anr., 2008
(62) ACC 826, after referring the cases of
Deputy Chief Controller Import and Export
v. Roshan Lal Agarwal10, UP Pollution
Control Board v. Mohan Meakins11, Kanti
Bhadra v. State of West Bengal12, it has been
observed that no speaking order is needed when
a court merely takes cognizance or issue
summons, although reasons may be required
when a complaint is being dismissed and
therefore, the attack to the order taking
cognizance on the charge sheet passed by the
CJM on 28.2.2005 on this ground must be
summarily repulsed as devoid of any substance.

18. In the case of Ankit Vs. State of U.P.
and another, 13, this Court has observed in para
no. 9 that paper No. 31 is the certified copy of
the impugned order, which has been initiated by
Sri Talevar Singh, the then judicial magistrateIII, Saharanpur. This order has been prepared by
filling up the blank on the printed proforma. The
blanks in the printed proforma appear to have
been filled up by some employee of the Court
and the learned magistrate has only put his short
signature (initial) above the seal of the Court
containing his name. All the details of the case
including the name, section, P.S., district, case
number and address of the applicant have been
filled up by some employee of the Court on the
printed proforma. Therefore, this type of the
order shows non-application of judicial mind on
the part of the learned magistrate passing the
same.

19. Similar view has been taken in Jagdish
Ram v. State of Rajasthan & Anr.14, The State
of Gujarat v. Afroz Mohammed Hasanfatta,
AIR 2019 SC 2499. In Afroz Mohd. (supra) the
Supreme Court further observed that in a case
based upon the police report, the Magistrate is not
required to record any reason at the stage of
issuing the summons to the accused. 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 reason for rejection of the chargesheet and for not taking on the file.

20. In the case of Saurabh Dewana v. State
of U.P., 2010 (2) JIC 3 (All), this Court has held
that the cognizance on the printed proforma is not
a legal cognizance.

21. In the case of Abdul Rasheed & others
v.
State
of
U.P.
&
another,
MANU/UP/3138/2010: 2010 (3) JIC 761 (All),
this Court observed that 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. 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.

22. This Court repeatedly directed that the
conduct of the judicial officers concerned in passing
11 All. M/s PepsiCo India Holdings Pvt. Ltd. Vs. Employees Provident Fund Appellate Tribunal/CGIT & Ors.
333
cognizance/summoning orders on printed proforma
by filling up the blanks without an application of
judicial mind is objectionable and deserves to be
deprecated and set aside the said orders and matters
are remanded back to the concerned court to take
fresh cognizance. (Vide: Andul Rasheed & Ors. v.
State of U.P.15, Qavi Ahmad v. State of U.P. &
Ors.16, Naval Dey Bharti v. State of U.P. &
Ors.17, Dushyant Kumar v. State of U.P. &
Ors.18, Ashu Rawat v. State of U.P. & Ors.19,
Ram Kumar Singh & Ors. v. State of U.P. &
Ors.20, Vishnu Kumar Gupta & Ors. v. State of
U.P. & Ors.21, Ali Ashraf Quardri & Ors. v. State
of U.P. & Ors.22, Anuj Gupta v. State of U.P. &
Ors.23, Babu & Ors. v. State of U.P. & Ors.24,
Rinki Rastogi & Ors. v. State of U.P. & Ors.25,
Surendra Kumar and Ors. v. State of U.P. &
Ors.26, Sunil Tyagi v. State of U.P. & Ors.27,
Dharmraj & Ors. v. State of U.P. & Ors.28,
Pankaj Jaiswal v. State of U.P. & Ors.29, Rubina
Khan v. State of U.P. & Ors.30, Sanjay v. State of
U.P. & Ors.31, Suresh Babu v. State of U.P. &
Ors.32, Abhay Pratap Singh v. State of U.P. &
Ors.33, Israil and Ors. v. State of U.P. & Ors.34,
Saleem v. State of U.P. & Ors.35, Phoolwanti Devi
& Ors. v. State of U.P. & Ors.36, Sunil Kumar
Singh v. State of U.P. and Ors.37, Pramod Kumar
& Ors. v. State of U.P. & Ors.38)

23. It is a position of law that before a
Magistrate can be said to have taken cognizance of
an offence, it is imperative that he must take notice of
the accusations and apply his mind to the allegations
made in the police report. However, a Magistrate is
not required to pass a detailed reasoned order at the
time of taking cognizance on the charge sheet. But it
does not mean that an order of taking cognizance can
be passed just by filling up the blanks on a printed
proforma. A judicial order cannot be allowed to be
passed in a such manner.

24. After considering the facts and keeping in
mind the position of law, which have been discussed
above, I am satisfied that there is no indication on the
application of mind by the learned Magistrate in
taking cognizance. The Magistrate passed the
impugned order dated 18.9.2019 in a mechanical
manner on a printed proforma without applying the
judicial mind. Therefore, the impugned order is liable
to be set aside. The matter is remitted to the Chief
Judicial Magistrate to pass fresh cognizance order in
accordance with law after applying judicial mind
within two weeks after the production of the certified
copy of the judgment.

25. Before parting with the judgment, I am of
the view that considering the nature of the issue
which arose in the instant case, it would be just and
appropriate to direct all the District Judges, and Chief
Judicial Magistrates/Chief Metropolitan Magistrates
to ensure that the Judicial Magistrates/Judge shall not
pass the cognizance order on printed proforma while
taking cognizance under Section 190 of the Code.

26. A copy of the instant judgment shall be
transmitted by the Registry of this Court to all the
District Judges within one week for circulation to all
the judicial officers. The office is further directed to
enter the judgment in compliance Register
maintained for the purpose of the Court.

27. With the aforesaid observations, the present
application U/S 482, Cr.P.C. stands disposed off.
----------
(2021)12ILR A333
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 8935 of 2021

M/s PepsiCo India Holdings Pvt. Ltd.
 ...Petitioner
Versus
Employees
Provident
Fund
Appellate
Tribunal/CGIT & Ors. ...Respondents

Counsel for the Petitioner: