Sanjeet Vs The State Of U.P. And Another

Allahabad High Court (Single Judge)

CRIMINAL MISC. CASE, 1070 of 2015, Judgment Date: Apr 17, 2015

Case :- CRIMINAL REVISION No. - 1070 of 2015
Revisionist :- Sanjeet Lal
Opposite Party :- The State Of U.P. And Another
Counsel for Revisionist :- Shubham Agarwal,S.P. Gupta
Counsel for Opposite Party :- Govt.Advocate,Prabhakar Awasthi
Hon'ble Harsh Kumar,J.
Heard Sri S.P. Gupta, learned Senior Advocate assisted by Sri
Shubham Agarwal, learned counsel for the revisionist, Sri Prabhakar
Awasthi, learned counsel for the opposite party no.2 and Sri Akhilesh
Singh, learned Government Advocate assisted by Sri N.K. Verma,
learned A.G.A. for the State.
The present revision has been filed against summoning order dated
16.12.2014 passed by Judicial Magistrate-II, Allahabad issuing summons
to accused-persons including revisionist-accused under Sections 419,
420, 467, 468, 471 and 406 I.P.C. in Criminal Case No.1808 of 2014
arising out of Case Crime No.480 of 2014. The impugned order runs as
follows:-
"आज आरोप पत्र प्राप्त होकर इंचाजर महोदय के समक्ष पेश हुआ I केस
डायरी व अन्य पुलिलिस प्रपत्रो का अवलिोकन िकया गया I प्रसंज्ञान मे
िलिया गया I आदेश हुआ की दजर रिजस्टर हो I नक़लि तैयार करायी जाये
I अिभियुलक्त को सम्मन जारी हो I पत्रावलिी िदनांक २५.०१.२०१५ को
पेश हो I”
Learned counsel for the revisionist argued that the revisionist is
not named in F.I.R. but charge-sheet has been submitted against him as
well as other accused-persons upon which learned magistrate has taken
cognizance of the offences and has issued summons without due
application of mind; that the impugned order appears to have been
written by the court staff and appears to have been signed by the
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magistrate without considering the material on record; that before taking
cognizance of offence, the magistrate was required to examine the nature
of allegations made in F.I.R. as well as the oral and documentary
evidence collected by Investigating Officer and then to record its
satisfaction that the material on record is sufficient for complainant to
succeed in bringing the persons named in the complaint and charge-sheet
to the court room; that the impugned order is laconic and perfunctory and
has been passed without application of mind in mechanical manner; that
no offence of breach of trust, fraud, cheating or forgery as contemplated
under Sections 419, 420, 467, 468, 471, 476 I.P.C. is made out against
the revisionist from the charge-sheet or material filed therewith; that the
impugned order dated 16.12.2014 is wrong, illegal and does not fulfil the
necessary conditions of Section 190 read with Section 204 Cr.P.C. and is
liable to be set-aside.
In support of his arguments, learned counsel for the revisionist
placed reliance on “Ankit Vs. State of U.P. and another”, 2009(67) ACC
532, in which the cognizance order was passed upon printed proforma by
filling the gaps, was held to have been passed in mechanical manner
without application of mind and was quashed under inherent powers
under Section 482 Cr.P.C.
He further relied on “GHCL Employees Stock Option Trust Vs.
India Infoline Limited”, (2013) 4 SCC 505 and “Sunil Bharti Mittal Vs.
Central Bureau of Investigation”, 2015 AIR SCW 642, in which cases
the cognizance order was found to be wrong, incorrect and not
sustainable. It was also contended that some of co-accused moved an
application under Section 482 Cr.P.C. No.897 of 2015 for quashing the
charge-sheet dated 12.12.2014, submitted in pursuance to the F.I.R. dated
18.9.2014 as well as summoning order dated 16.12.2014 by moving an
application under Section 482 Cr.P.C. which has been dismissed by this
Court vide order dated 20.3.2015 but dismissal of an application under
Section 482 Cr.P.C. by some of the accused may not be bar to filing of
revision under Section 397/401 Cr.P.C. On this point, he has placed
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reliance on “Vasudev Dani Vs. Purushottam Das Khandelwal and
another”, (2004) 13 SCC 506, where dismissal of application under
Section 482 Cr.P.C. merely on the ground that another petition under
Section 482 Cr.P.C. filed by co-accused against the same order had
already been dismissed, was found wrong.
The learned counsel for the opposite party no.2, the first informant
and learned Government Advocate disagreeing with the arguments
advanced by learned counsel for the revisionist, submitted that it is
wrong to say that impugned order of taking cognizance has been passed
in mechanical manner without application of mind to the material
submitted with the charge-sheet; that the order-sheet can be written by
the Presiding Officer himself or on his dictation by his ministerial staff
and merely for this reason the order may not be considered to have been
passed in mechanical manner without application of mind; that the
revisionist and other co-accused are in connivance with each other have
committed breach of trust and have misappropriated the huge amount of
over crores of rupees of the society out of the student fees fund against
the rules of the registered society by way of forgery and by making
forged papers; that the revisionist was never duly authorised for
operating the accounts of registered society; that for the alleged meetings
of society, the ex-officio members of society, the Commissioner and
District Magistrate Allahabad were never intimated or invited; that
authorisation of the revisionist for operating the accounts and
withdrawal of huge amount by him from the concerned account of
students fees is wrong and illegal; that the revisionist continued to
operate the account without any legal authority and has operated the
account on the basis of forged papers in connivance with co-accused in
order to misappropriate the huge amount of crores; that the impugned
order reflects that the order has been passed after perusal of case diary
and other police papers; that there is no illegality, irregularity or
incorrectness in the impugned order; that the law requires for taking of
cognizance of the offence and not of the accused; that at the time of
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taking cognizance, the court has to consider only that there is prima-facie
case and at that stage, it is not required to consider as to whether it will
certainly result into conviction or not; that learned magistrate was not
supposed to pass an elaborate order discussing the role of each accused;
that the accused-persons have misappropriated the huge amounts in
connivance with each other and are trying to obstruct the proceedings of
trial by hook or crook; that in order to obstruct the proceedings of trial,
certain accused-persons moved application under Section 482 Cr.P.C. for
quashing the charge-sheet which has been dismissed vide order dated
20.3.2015 and now a further attempt has been made by moving this
revision petition by another accused just after three days of dismissal of
application u/s 482 Cr.P.C., on 23.3.2015; that the law relied by learned
counsel for the revisionist is not applicable to the facts of the case; that
the revision has been filed with wrong and baseless allegations and
malafide intentions and is liable to be dismissed. Learned counsel for
the first informant referred the various portions of the charge-sheet
showing active role played by the revisionist in commission of offences
for which cognizance has been taken.
Upon hearing learned counsel for the parties, perusal of record and
before proceeding further, I find that as far as the dismissal of application
under Section 482 Cr.P.C. No.897 of 2015 “Rt. Rev. P.P. Marandi and
others Vs. State of U.P. and another” vide order dated 20.3.2015
(Annexure 15) is concerned, I do not find any force in the contention of
learned counsel for the opposite party that above dismissal will bar the
present revision. Whatever may be intentions of accused persons to
obstruct the proceedings of trial, the scope of Section 482 Cr.P.C. and
Section 397/401 Cr.P.C. is different and irrespective of the dismissal of
application under Section 482 Cr.P.C. by some of the accused, the
revision petition under Section 397/401 Cr.P.C. has to be disposed of
upon its merits.
The relevant provisions of the Code of Criminal Procedure relating
to taking of cognizance are being reproduced hereunder:-
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“190. Cognizance of offences by Magistrates.--(1) 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.
203. Dismissal of complaint.-- If, after considering the statements on oath
(if any) of the complainant and of the witnesses and the result of the
inquiry or investigation (if any) under section 202, the Magistrate is of
opinion that there is no sufficient ground for proceeding, he shall dismiss
the complaint, and in every such case he shall briefly record his reasons
for so doing.
204. Issue of process.-- (1) If in the opinion of a Magistrate taking
cognizance of offence there is sufficient ground for proceeding, and the
case appears to be-
(a) a summons- case, he shall issue his summons for the attendance of the
accused, or
(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons,
for causing the accused to be brought or to appear at a certain time before
such Magistrate or (if he has no jurisdiction himself) some other
Magistrate having jurisdiction.”
The word "cognizance" has repeatedly been used in different
sections of the Code of Criminal Procedure, hereinafter referred to
as "Cr.P.C.". However, this word has nowhere been defined in
Cr.P.C.
The word "cognizance" has been defined in different
judgments of the Apex Court. In the case of S. K. Sinha, Chief
Enforcement Officer Vs. Videocon International Limited and
others (2008)2 SCC page 492. The word cognizance has been
narrated as follows:
"The expression "cognizance" has not been defined in Cr.P.C..
But the word (cognizance) is of definite import. It has no esoteric or
mystic significance in criminal law. It merely means "become aware
of" and when used with reference to a Court or a judge, it connotes
"to take notice of judicially". It indicates the point when a Court or
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a Magistrate takes judicial notice of an offence with a view to
initiating proceedings in respect of such offence said to have been
committed by someone"
The Apex Court in the case of Bhushan Kumar and another
Vs. State of NCT of Delhi and another 2012(5) SCC 424, has
described the expression of cognizance as follows:
"The expression "cognizance" in Sections 190 and 204 Cr.P.C.
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. Under Section 190 Cr.P.C, it is the application of judicial
mind to the averments in the complaint that constitutes cognizance.
At this stage, the Magistrate has to be satisfied whether there is
sufficient ground for proceeding and not as to whether there is
sufficient ground for conviction. Whether the evidence is adequate
for supporting the conviction can be determined only at the trial and
not at the stage of enquiry. If there is sufficient ground for
proceeding then the Magistrate is empowered for issuance of
process under Section 204 Cr.P.C."
In view of the mandate of the Apex Court discussed above, it
is evident that the cognizance is taken by the court whereby it holds
that sufficient grounds exist for initiation of criminal proceedings
against the accused proposed to be summoned for trial. Further that
the cognizance is taken in respect of a case and not in respect of the
accused-persons in a case. The fact that the cognizance is taken by
the Court is equivalent to the statement that all the conditions
requisite for the initiation of proceedings are complete.
In the case of S. K. Sinha, Chief Enforcement
Officer(Supra) quoted above, the Hon'ble the Apex Court in para
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20 has defined as to how a cognizance is taken with the following
observation:
"Taking Cognizance" does not involve any formal action of
any kind. It occurs as soon as a Magistrate applies his mind to the
suspected commission of an offence. Cognizance is taken prior to
commencement of criminal proceedings. Taking of cognizance is
thus a Sine qua non or condition precedent for holding a valid trial.
Cognizance is taken of an offence and not of an offender. Whether
or not a Magistrate has taken cognizance of an offence depends on
the facts and circumstances of each case and no rule of universal
application can be laid down as to when a Magistrate can be said to
have taken "Cognizance".
It is settled principle of law that at the time of taking
cognizance, the court is required to apply its mind and if he finds
sufficient ground, it may take cognizance and issue process of
summons. In Ankit Vs. State of U.P. and another (supra), the
cognizance order was passed upon printed proforma filled by some
employee of the court and so it was considered to have been passed
without application of judicial mind and was quashed. Similarly, in the
case of “M/s V.K. Traders Vs. State of U.P. and another”, 2012(11) ADJ
651, upon filing of complaint under different provisions of Food
Adulteration Act, 1954, the magistrate had passed following order:-
"आज यह चालिानी िरपोटर थाने से प्राप्त हुई दजर रिजस्टर हो I
अिभियुलक्त द्वारा सम्मन िदनांक ३०.१.२०१० िनयत करके तलिब करे I”
which was found to have been passed by using the rubber stamp
and the court found that since it was a complaint case and no report was
submitted from police station, hence the rubber stamp order was wrongly
passed without application of mind and was quashed.
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As far as the case law of GHCL EMPLOYEES STOCK OPTION
TRUST VS. INDIA INFOLINE LIMITED (supra), relied by the learned
counsel for the revisionist, in the case of GHCL Employees Stock Option
Trust Vs. India Infoline Limited, a complaint case was filed against the
company and no specific role was assigned to respondents no.2 to 7 who
were made accused only because of being Managing Director, Secretary
or other Directors of the company-accused respondent no.1. In above
case, upon complaint without any specific role or allegations against the
accused respondents no.2 to 7 they were summoned under Section 204
Cr.P.C. and the Delhi High Court quashed the summoning order under
Section 482 Cr.P.C., which was upheld by the Apex Court.
Similarly, in the case of Sunil Bharti Mittal Vs. Central Bureau
of Investigation (supra) upon investigation in the case registered against
unknown officers of department of telecommunication as well as
unknown private persons and company, charge-sheet was submitted
against Mr. Shyamal Ghosh, M/s Bharti Cellular Ltd., M/s Hutchison
Max Telecom (P) Ltd. and M/s Sterling Cellular Ltd., but the special
judge taken cognizance and apart from charge-sheeted accused also
issued process against Mr. Sunil Bharti Mittal, Mr. Asim Ghosh and Mr.
Ravi Ruia, as they were Chairman-cum-Managing Director, Managing
Director and Director of their respective companies ( though not chargesheeted)
and at the time of taking cognizance and they were also
summoned under the principle of “alter ego”.
In both the above cases, the accused persons were summoned by
taking cognizance of offence on the basis of principles of vicarious
liability and at the time of quashing orders Hon'ble the Apex Court held
that principles of vicarious liability is not applicable to criminal cases
and in absence of any provision laid down under the Statute, a Director
of Company or an employee cannot be held to be vicariously liable for
any offence committed by the company itself.
Unlike above cases, in the case specific role has been assigned to
named and charge-sheeted persons and since the above two case law are
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based on different facts, they are not applicable to the facts of the case.
In view of the discussions made above and as per settled principles
of law, at the time of taking cognizance of the offence the court is not
required to give elaborate reasons describing the sufficient ground for
taking cognizance of the offence.
In the present case, the impugned order has not been passed either
on a printed proforma or by use of rubber stamp. A perusal of impugned
order shows that cognizance order has been passed by court after perusal
of case diary and police papers. Merely for the reason that it has been
written by ministerial staff of the court upon instructions of court, it may
not be considered to have been passed in mechanical manner. The
possibility, if any, that upon trial one or the other of several accused may
be held not guilty of one or the other offences, may not be sufficient to
hold the impugned cognizance order as wrong or illegal, because the law
requires taking of cognizance of the offence, not of the accused/offender.
In view of the discussions made above, I find that learned counsel
for the revisionist has failed to show any illegality, irregularity,
impropriety or incorrectness in the impugned order of taking cognizance
and there is no sufficient ground for interfering with or setting it aside
within the purview of Section 397/401 Cr.P.C. The revision is devoid of
merits and is liable to be dismissed.
The revision is accordingly dismissed at the admission stage.
Order Date :- 17.4.2015
Kpy