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TMI Blog2019 (4) TMI 2169X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant (Opp Party No 2) came to her office, boring machine was found missing. After assiduous efforts, it was revealed that these persons had stolen the machines during night. 4. During investigation, statements of complainant (Opp Party No 2) Smt Neelam, Ratan Singh (witness), Pappu Rekhwaar (witness), Dashi Kushwaha (witness), Veer Singh (Witness) and Toran Singh (witness) were recorded. 5. During investigation, the applicant and Dinesh had approached this Court by way of filing Criminal Misc Writ Petition No 27265 of 2018 for quashing of First Information report. The co-ordinate Bench of this Court disposed of the said writ petition with the direction that the petitioner therein shall not be arrested till the submission of the Police report under section 173 (2) Cr.P.C. 6. The Investigating officer after conducting investigation submitted impugned charge sheet only against the applicant herein and not against the Dinesh who was also named in the First Information Report under section 381 IPC on 21.12.2008. Later-on, learned Chief Judicial Magistrate, Laitpur took cognizance of the offence and summoned the applicant under order dated 1.3.2019 which is also impugned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of U.P. and Another reported in J.I.C 2000 (1) 432, has held that such proforma orders cannot be upheld as the same are passed without application of judicial mind. The counsel further cited judgment passed by Apex Court in Pepsi Foods Limited Vs Special Judicial Magistrate (1997 LawSuit (S.C) 1340) wherein it has been held that summoning of an accused in a criminal matter is a serious business and order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto. 8. On the basis of these submissions, the learned counsel submitted that circumstances and facts of present case warrant interference of this Court under the inherent power provided under section 482 Cr.P.C, to quash the impugned charge sheet and impugned cognizance/summoning order. 9. Per contra, learned counsel for the Opp Party no 2 submitted that from the materials placed before the learned court below, prima facie case is made out against the applicant under section 381 IPC and the Court has rightly taken cognizance. Inherent power of the High Court should be exercised sparingly and only in exceptional circumstances. In the present case, accused was working as servant in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to a Court or Judge, to take notice of judicially. Approving the observations of the Calcutta High Court in Emperor Vs. Sourindra Mohan Chuckerbutty (1910) I.L.R. 37 Calcutta 412, the Court said 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.' 13. Recently, this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors. (2008) 2 SCC 492, speaking through C.K. Thakker, J., while considering the ambit and scope of the phrase `taking cognizance' under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar Banerjee A.I.R. (37) 1950 Calcutta 437, which were approved by this Court in R. R. Chari Vs. State of U.P. A.I.R. (38) 1951 SC 207 1 0. The observations are: "7. ... What is `taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind." (Emphasis supplied) 14. Hon'ble Supreme Court in the matter of Vineet Kumar and others Vs State of Uttar Pradesh and another reported in (2017) 13 SCC, 369 while considering the issue of scope of section 482 Cr.P.C regarding quashing of criminal proceedings held in paras 22,23,24,25,26,27,28, and 29 as under: "22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 Cr.P.C. vested in the High Court. Section 482 Cr.P.C. saves the inherent powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the FIR, the case arose out of an FIR registered under Section 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CR.P.C./ Article 226 in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain Categories of cases by way of illustration where power under 482 Cr.P.C . can be exercised to prevent abuse of the process of the Court or secure ends of justice. 25. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6: "6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. This Court referred to the judgment in Bhajan Lal case (supra) and held that the case fell within Category 7. Apex Court relying on Category 7 has held that Application under Section 482 deserved to be allowed and it quashed the proceedings. 25. In another case in Priya Vrat Singh and others vs. Shyam Ji Sahai, 2008 (8) SCC 232, this Court relied on Category 7 as laid down in State of Haryana vs. Bhajan Lal(supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482 Cr.P.C. to quash the proceedings under Section 494, 120-B and 109 IPC and Section 3 and 4 of Dowry Prohibition Act. After noticing the background facts and parameters for exercise of power under Section 482 Cr.P.C. following was stated in paragraphs 8 to 12: "8. Further, it is pointed out that the allegation of alleged demand for dowry was made for the first time in December 1994. In the complaint filed, the allegation is that the dowry tortur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... क्त / अभियुक्तगण के विरूद्ध सम्मन जारी हो । पत्रावली दिनांक 03-05-19 को वास्ते हाजिरी मुल्जिम पेश हो। मुख्य न्यायिक मजिस्ट्रेट ललितपुर । (Underline is supplied to show where the space has been left and are filled later-on.) 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. (supra). Though no detailed order is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secure the ends of justice and to prevent abuse of the process of court below, present is a fit case to exercise the inherent jurisdiction of the court provided under section 482 Cr.P.C to prevent abuse of process of lower court as well as to secure ends of justice. For disposal of the present case para 34 of the judgment passed by Supreme Court in Anand Kumar Mohatta Vs State of NCT of Delhi 2018 SCC on-line 2447 is also very useful and the same is quoted hereinafter. "34. It is necessary here to remember the words of this Court in State of Karnataka v. L. Muniswamy and others which read as follows: - "7. …..In the exercise of this wholesome power, 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. The saving of the High Court's inherent powers, both in civil and criminal matters, is 6 1977 (2) SCC 699 14 designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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