The Allahabad High Court while allowing an application observed that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set in motion as a matter of course.
A Single Bench of Justice Om Prakash Shukla passed this order while hearing an application under section 482 filed by Ram Bux and Others.
The applicants by invoking the inherent powers of the Court under Section 482 of Code of Criminal Procedure, 1973 have challenged the summoning order dated 07.12.2013 passed by Judicial Magistrate-III, Faizabad in Case under Sections 323, 504, 506 I.P.C, Police Station Gosainganj, District Faizabad as well as the charge sheet dated 10.04.2012, submitted in N.C.R under Sections 323, 504, 506 I.P.C along with the entire proceedings of the Case.
The story put forth by the prosecution is that as the complainant was on his way to his house from the field he was abused by the applicants and one Ram Ajore with fists and kicks in front of the house of Hari Ram.
Further it has been alleged that the complainant was threatened and even when his wife came to save him, she was also beaten by them which led to the lodging of N.C.R on 03.09.2008 under Sections 323, 504 and 506 I.P.C.
Although, Counsel for the applicants has disputed the aforesaid facts and claimed that the applicants as well as opposite party no 2/complainant belonged to the same village, there was partibandi and the story put forth is concocted and false.
However, the fulcrum of the argument of the Counsel for the applicants are two fold; firstly, he has argued that Explanation appended to Section 2(d) of Cr.P.C provided that a report made by the police officer in a case which discloses, after investigation, commission of a non-cognizable offence shall be deemed to be a complaint and the Investigating Officer, who has made the said report, shall be deemed to be a complainant and as such the same ought to have been proceeded as per procedure laid down for treating the same as a complaint and no cognizance could have been taken on the said report treating the same as a police report as has been sought to be done in the impugned summoning order dated 07.12.2013.
The second leg of argument addressed by the Counsel for the applicants is relating to limitation for taking cognizance by the Magistrate in view of Section 468 of Cr.P.C.
According to Counsel, admittedly, the Investigating Officer has filed a report and a cognizance of the same has been taken by the Magistrate after expiry of more than three and a half (3½) years for an offence which prescribes the minimum punishment of one year. Thus, according to him, the said cognizance is clearly barred by limitation under Section 468 Cr.P.C and the present impugned summoning order as well as the entire proceedings is bad in law especially when there is no compliance or application of Section 473 Cr.P.C relating to explanation for condoning the delay.
It has been pointed out by the Counsel for the applicants that while entertaining the application, the entire proceedings in Case was stayed by a Coordinate Bench of the Court by order dated 14.02.2014.
The Court observed that,
Having heard the Counsel for the parties and gone through the record available before the Court, the Court finds that the charge-sheet in N.C.R has been filed by the Investigating Officer under Sections 323, 504 and 506 I.P.C. So far as the offence under Section 323 I.P.C is concerned, maximum punishment that could be awarded for the offence is one year and fine up to Rs 1000/-, whereas for the offence under Sections 504 and 506 I.P.C is concerned, the maximum punishment awarded is of two years respectively.
First & foremost, it has to be understood that cognizance indicates the point when a Court takes judicial notice of an offence with a view to initiating process in respect of the offence. Cognizance is entirely different from initiation of proceedings, rather it is the condition precedent to the initiation of proceedings by the Court. Cognizance is taken from the case and not of a person. Under Section 190 of Cr.P.C, it is the application of mind to the averments in the complaint that constitute cognizance. The stage of process is not relevant for the purpose of computing limitation under Section 468 of Cr.P.C.
In the case, the learned Magistrate, instead of treating the charge sheet submitted by the Investigating Officer as a complaint, took cognizance of it as a State case by the impugned summoning order dated 07.12.2013, which is not permissible under law.
In this case, the Court found that the Magistrate did not even care to note that as to whether the offences, for which the charge-sheet has been filed by the police, is cognizable or not, so to expect that there had been any application of mind would be a misnomer. Apparently, the summoning order dated 07.12.2013 seems to have been issued in a routine manner, which cannot withstand the parameters of Sections 203/204 of Cr.P.C and is liable to be set aside.
“In view of the settled law, the Magistrate-III, Faizabad ought to had not proceeded on the police report without applying judicial mind inasmuch as all the offences as mentioned in the N.C.R as non-cognizable and proper course of the action for the Magistrate was to treat the matter as complaint under the provisions as enshrined under Explanation to Section 2(d) Cr.P.C.
Further the Magistrate could not have taken cognizance of the offence after three years from the date of offence as the offences alleged under Sections 323, 504, 506 I.P.C are punishable with maximum sentence of one year and two years respectively.
Further perusal of the impugned order shows that the Judicial Magistrate-III had no occasion to condone the delay in terms of Section 473 Cr.P.C before taking cognizance, therefore, the impugned order is without jurisdiction.
This being the position, the Court is of the considered view that the application deserves to be allowed”, the Court further observed while allowing the application.
“Consequently, the summoning order dated 07.12.2013, passed by Judicial Magistrate-III, Faizabad in Case under Sections 323, 504, 506 I.P.C, Police Station Gosainganj, District Faizabad and all other consequential proceedings emanating therefrom are quashed”, the Court ordered.
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