A.F.R.

Neutral Citation No. - 2024:AHC-LKO:5736

Court No. - 35

Case :- APPLICATION U/S 482 No. - 2413 of 2016

Applicant :- Ram Kewal

Opposite Party :- State Of U.P. And Anr.
Counsel for Applicant :- Angrej Nath Shukla,Deo Prakash
Srivastava,Naveen Kumar Pandey
Counsel for Opposite Party :- Govt. Advocate

Hon'ble Arun Kumar Singh Deshwal,J.

1. Learned counsel for the applicant is permitted to

correct the prayer clause, during the course of the day.

2. Despite service of notice, no one appears on behalf of

opposite party no.2.

3. Heard learned counsel for the applicant and Sri Arvind

Kumar Tripathi, learned AGA for the State.

4. The present 482 Cr.P.C. application has been filed to

quash the chargesheet no.05/2016 arising out of Case
Crime No.373/15, under Sections-419, 420 IPC, Police
Station-Kotwali Colonelganj, District-Gonda, as well as
summoning order dated 01.03.2016 passed by Chief
Judicial Magistrate, Gonda.

5. Contention of learned counsel for the applicant is that

the impugned cognizance order on the impugned
chargesheet was illegal as same was absolutely passed
without application of mind being filled up printed
proforma and signing the same. In support of his
submission, learned counsel for the applicant has relied
upon the judgement of coordinate Bench of this Court
dated 04.01.2023 passed in Application u/s 482 No.9892
of 2022.
6. Per contra, learned AGA has opposed the prayer but
could not dispute the aforesaid fact that the cognizance
order is nothing but simply filling up the printed proforma
and thereafter, signing by the concerned Magistrate.

7. After hearing the parties and on perusal of record, it is

explicit from the perusal of cognizance order dated
01.03.2016 that the same was nothing but simply filling up
the printed proforma and signing the same which itself
shows that there is complete non-application of mind on
the part of Chief Judicial Magistrate, Gonda.

8. The Hon'ble Supreme Court in the case of Lalankumar

Singh vs State of Maharashtra; 2022 SCC OnLine SC
1383 has observed in paragraph no.38 that order of issue
of process is not an empty formality. Learned Magistrate
is required to apply his mind as to whether the sufficient
ground for proceeding exists in the case or not.
Paragraph no.38 of the aforesaid judgement is quoted as
below:

"38. The order of issuance of process is not an

empty formality. The Magistrate is required to
apply his mind as to whether sufficient ground
for proceeding exists in the case or not. The
formation of such an opinion is required to be
stated in the order itself. The order is liable
to be set aside if no reasons are given therein
while coming to the conclusion that there is a
prima facie case against the accused. No doubt,
that the order need not contain detailed reasons.
A reference in this respect could be made to the
judgement of this court in the case of Sunil
Bharti Mittal v. Central Bureau of Investigation,
which reads thus:
51. On the other hand, Section 204 of the Code
deals with the issue of process, if in the
opinion of the Magistrate taking cognizance of an
offence, there is sufficient ground for
proceeding. This section relates to commencement
of a criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the
Magistrate receiving the complaint or to whom it
has been transferred under Section 192), upon a
consideration of the materials before him (i.e.
the complaint, examination of the complainant and
his witnesses, if present, or report of inquiry,
if any), thinks that there is a prima facie case
for proceeding in respect of an offence, he shall
issue process against the accused.

52. A wide discretion has been given as to grant

or refusal of process and it must be judicially
exercised. A person ought not to be dragged into
court merely because a complaint has been filed.
If a prima case has been made out, the Magistrate
ought to issue process and it cannot refused
merely because he thinks that it is unlikely to
result in a conviction.

53. However, the words "sufficient ground for

proceeding" appearing in Section 204 are of
immense importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the said
accused and formation of such an opinion is to be
stated in the order itself. The order is liable
to be set aside if no reason is given therein
while coming to the conclusion that there is
prima facie case against the accused, though the
order need not contain detailed reasons. A
fortiori, the order would be bad in law if the
reason given turns out to be ex facie incorrect."

9. The coordinate Bench of this court again considered

the issue in the case of Surendra Kumar & others Vs.
State of U.P. & Another reported in 2021 (7) ADJ 61 as
well as in the case of Dhanesh Kumar @ Dhanesh
Kumar Mishra Vs. State Of U.P. Thru. Prin. Secy.
(Home) Lko. And Another passed in Application u/s
482 No.9892 of 2022 dated 04.01.2023 in which taking of
cognizance on printed proforma was deprecated and held
the same as non-application of mind. This issue was
again considered by this court in the case of Amit Kumar
Dwivedi and another vs. State of U.P. and another
passed in Application u/s 482 No. 35443 of 2023; vide
order dated 05.10.2023. In that case, the court after
relying upon the judgement of the Hon'ble Supreme Court
as well as several other coordinate benches of this court
clearly observed that merely signing and filling up the date
and case crime number in the printed proforma is
absolutely non-application of mind and also directed to all
the Judicial Magistrates/concerned courts in State of U.P.
not to pass cognizance order simply filling up the printed
proforma and copy of this order was also circulated by the
High Court to all the District Judges in State of U.P.
Paragraph nos.9, 12 and 13 of the aforesaid judgement
are being quoted as under:

"9. In view of above legal position, this Court

is of the view that merely signing and filling up
the date and case crime number in printed
proforma is absolutely non-application of mind
because the cognizance order must reflect the
prima facie opinion of the learned Magistrate on
the material collected during investigation.
Order of issuance of process is not an empty
formality, it may affect the personal liberty of
a person. Article 21 of Constitution of India
guarantees personal liberty of a person and same
cannot be deprived of, without due procedure of
law. Apart from this, summoning of accused to
appear before criminal court after taking
cognizance is a serious matter, affecting the
dignity, self-respect and image in society.
Therefore, proper process by the criminal court
must be followed at the time of taking cognizance
and summoning the accused."

12. This Court further directs to all the

 Magistrates/concerned courts, while taking
cognizance on the charge sheet, the
Magistrate/concerned court must mention the fact
that which document he has perused and on perusal
of those documents prima facie case for taking
cognizance is made out on the basis of above
material with short reasoning for making out
prima facie case.

13. Registrar (Compliance) is directed to

circulate the copy of this order to all District
Judges for perusal and further circulation."

10. From the above mentioned legal position, it is clear

that merely filling up printed proforma and then signing
the same will not be a cognizance at all because this is
completely non-application of mind on the part of the
concerned Magistrate for taking cognizance. Learned
Magistrate has to apply his mind on the material available
before him which should be reflected from his cognizance
order, itself.

11. In view of the above, impugned cognizance order

dated 01.03.2016 passed by the Chief Judicial
Magistrate, Gonda is hereby quashed and he is at liberty
to pass a fresh cognizance order in light of the
observations made above, within a period of one month.

12. With the aforesaid observations, the present

application is allowed.

Order Date :- 19.1.2024

*S.Chaurasia*

Digitally signed by :-
SHUBHAM CHAURASIA
High Court of Judicature at Allahabad,
Lucknow Bench