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TMI Blog2015 (3) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are required at the stage of Section 190/204 Code of Criminal Procedure, 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 of Code of Criminal Procedure so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. Question is not about veracity of the allegations; but whether the Respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate. The matter is remitted to the Magistrate for fresh consideration - Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent did not constitute an offence and hence they were not liable to be called by the Magistrate to defend the criminal proceedings. Thus, aggrieved, the Appellants filed a petition to quash the proceedings initiated by the Magistrate by order dated 03.04.2007. 4. The High Court, by the impugned order, rejected the petition holding that the veracity of allegations made in the complaint filed by the first Respondent before the Magistrate "is a question of evidence and can be settled only when the evidence is adduced". 5. Heard Shri Soli J. Sorabjee, learned senior Counsel appearing for the Appellants in Criminal Appeal No. 1347 of 2010 and appearing for the Respondents in Criminal Appeal No. 1348 of 2010. Ms. Vibha Datta Makhija, learned senior Counsel appeared for the Respondents in Criminal Appeal No. 1347 of 2010 and for the Appellants in Criminal Appeal No. 1348 of 2010. Ms. S. Janani, learned Counsel appeared for the complainant/ Respondent(s) in both Criminal Appeal Nos. 1347 of 2010 and 1348 of 2010. 6. Though the learned senior Counsel made an attempt to canvas on the merits of the matter as well, we do not find it necessary and it is not proper also at this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olve 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. To quote: 8. 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. 10. In one of the early decisions, Emperor v. Sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding Under Sections 200/204 of the Code.... 13. In State of W.B. and Anr. v. Mohd. Khalid and Ors. (1995) 1 SCC 684, it has been held by this Court that while exercising the power to take cognizance, a Magistrate has to see whether there is any basis for initiating judicial proceedings. At paragraph-43, it has been held as follows: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the word (cognizance) is of indefinite 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 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. 20. "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. 19. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr. (2009) 2 SCC 147, at paragraph-23, the position has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of court. 13. 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 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 prerequisite for deciding the validity of the summons issued. 21. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation Under Section 202 of Code of Criminal Procedure, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused Under Section 204 of Code of Criminal Procedure, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds Under Sections 190/204 of Code of Criminal Procedure, the High Court Under Section 482 of Code of Criminal Procedure is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment. 24. Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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