2019 (4) TMI 2169 - HC - Indian Laws

Application of judicial mind while taking cognizance of the offence under section 381 IPC - State contends that prima facie offence is made out against the applicant and all submissions raised by applicant fall under the arena of disputed facts which cannot be decided under the proceeding of section 482 Cr.P.C - HELD THAT - Hon ble Supreme Court in the matter of Fakhruddin Ahmad Vs State of Uttranchal and another 2008 (9) TMI 997 - SUPREME COURT discussed the expression taking cognizance of an offence by a Magistrate within contemplation of section 190 of the Cr.P.C and also discussed what must have been taken notice by the Magistrate while taking cognizance. Whether the Chief Judicial Magistrate has applied his mind before taking cognizance of the offence under section 381 Cr.P.C.? - HELD THAT - From a perusal of the above order it is evident that it is a typed proforma where only information of case no name of accused section Police Station date and next date is to be filled by Magistrate. This very practice has been depreciated by the court in the case of Ankit Vs State of U.P. 2009 (10) TMI 975 - ALLAHABAD HIGH COURT . Though no detailed order is required to pass at the time of taking cognizance but the short cut adopted by the Magistrate is also not acceptable and therefore in the present case cognizance order is passed without any application of mind as the same does not reflect that the Magistrate has applied his mind to materials available and also whether the materials are sufficient to proceed against the applicant/accused. Whether on the basis of materials available ingredients of section 381 IPC is prima facie disclosed? - HELD THAT - Considering the materials available there is no material to show that accused was employed in the caspacity of servant or clerk with the Opp Party no 2/complainant. Secondly the machine was not in possession of the Opp Party no2. Therefore the alleged theft is not from the possession of the Opp party no 2. Therefore in the present case essential ingredients of section 381 IPC are absent. In this background it is difficult to arrive at a conclusion that in the present matter even prima facie case is made out against the applicant under section 381 IPC. Whether in the facts and circumstances of the present case the Court could quash the charge sheet under its inherent power under section 482 Cr.P.C.? - HELD THAT - There is no doubt that this Court could exercise its inherent jurisdiction under section 482 Cr.P.C (I) to make such orders as may be necessary to give effect to any order under the code of criminal Procedure or (ii) to prevent abuse of the process of any court or (iii) otherwise to secure ends of justice - In the present case neither the concerned Magistrate has applied mind before taking cognizance of offence and rather passed an order in the form of proforma order nor on the basis of materials available even prima facie ingredients of section 381 IPC are disclosed. Conclusion - The charge sheet and the cognizance/summoning order quashed concluding that the proceedings were an abuse of the court s process and that the essential ingredients of section 381 IPC were not met. While exercising such power the impugned charge sheet is quashed and the present application is allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core issues considered in this judgment include:

• Whether the Chief Judicial Magistrate applied judicial mind while taking cognizance of the offence under section 381 IPC.
• Whether the materials available disclose the ingredients of section 381 IPC, particularly if the accused was employed as a clerk or servant and if the alleged theft was from the possession of the employer.
• Whether the High Court should exercise its inherent powers under section 482 Cr.P.C. to quash the charge sheet and the cognizance/summoning order.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Application of Judicial Mind by the Magistrate

• Legal Framework and Precedents: The judgment refers to the Supreme Court's interpretation of "taking cognizance" under section 190 of the Cr.P.C., emphasizing that a Magistrate must apply their mind to the allegations and materials before initiating proceedings. The case of Ankit Vs State of U.P. highlights that orders cannot be passed mechanically using a pre-filled proforma.
• Court's Interpretation and Reasoning: The Court found that the cognizance order was issued on a pre-typed proforma, indicating a lack of judicial application of mind. This practice was criticized in previous judgments, suggesting that the Magistrate did not adequately consider the materials before taking cognizance.
• Conclusion: The Court concluded that the order of cognizance was passed without proper application of mind, rendering it defective.

Issue 2: Disclosure of Ingredients of Section 381 IPC

• Legal Framework and Precedents: Section 381 IPC pertains to theft by a clerk or servant of property in the possession of their master. The Court identified the necessary ingredients: employment as a clerk or servant, commission of theft, and possession of the property by the employer.
• Key Evidence and Findings: The Court noted the absence of evidence showing that the accused was employed in the capacity of a clerk or servant or that the property was in the possession of the complainant.
• Application of Law to Facts: The Court found that the essential elements of section 381 IPC were not present, as there was no employment relationship or possession by the complainant.
• Conclusion: The absence of these elements led the Court to determine that no prima facie case was made out against the applicant under section 381 IPC.

Issue 3: Exercise of Inherent Powers under Section 482 Cr.P.C.

• Legal Framework and Precedents: The judgment references several Supreme Court decisions outlining the scope of section 482 Cr.P.C., which allows the High Court to prevent abuse of process or secure the ends of justice by quashing proceedings.
• Court's Interpretation and Reasoning: The Court emphasized that inherent powers should be exercised sparingly and only in exceptional circumstances. It considered whether continuing the proceedings would constitute an abuse of the court's process.
• Conclusion: The Court found that the proceedings were an abuse of process, as the cognizance order was issued without judicial application of mind and the ingredients of the alleged offence were not established. Thus, it was appropriate to quash the charge sheet.

3. SIGNIFICANT HOLDINGS

• Core Principles Established: The judgment reinforces the principle that judicial orders, including cognizance orders, must reflect the application of judicial mind and cannot be issued mechanically using pre-filled forms. It also underscores the necessity of establishing all elements of an offence before proceeding with a charge.
• Final Determinations: The Court quashed the charge sheet and the cognizance/summoning order, concluding that the proceedings were an abuse of the court's process and that the essential ingredients of section 381 IPC were not met.
• Verbatim Quotes of Crucial Legal Reasoning: The Court cited the Supreme Court's guidance on the exercise of inherent powers: "The High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed."