Arvind Kumar And ANR v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.52136 of 2017 Arising Out of PS.Case No. -43 Year- 2017 Thana -PARASBIGHA District- JEHANABAD ======================================================

1. Arvind Kumar, S/o Late Ram Bilas Sharma,

2. Lav Kumar S/o Arvind Kumar, Both are R/o Village- Chainpura, P.S.- Parasbigha in the District of Jehanabad.

.... .... Petitioner/s

Versus

The State of Bihar .... .... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Navin Sharma For the Opposite Party/s : Mr. Smt. Asha Kumari ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 17-07-2018 Heard learned counsel for the petitioners and learned counsel for the State.

2.

By way of filing the present application under Section 482 of the Code of Criminal Procedure (for short „the Cr.P.C.‟), the petitioners have prayed for quashing of the order dated 29.06.2017 passed by the learned Judicial Magistrate 1st Class, Jehanabad G.R.Case No. 666 of 2017 arisisng out of Parasbigha P.S.Case No. 43 of 2017 by which he has taken cognizance of the offence under Sections 406, 420 of the Indian Penal Code and Section 3 and 4 of the Dowry Prohibition Act. 3.

It has been contended by the learned counsel for the petitioners that the impugned order of cognizance has been passed by the learned Judicial Magistrate by filling up blanks only in pre-

2/5 written order format. It is further contended that the order has been passed mechanically without application of judicial mind and, hence, it is fit to be set aside.

4.

On the other hand, learned counsel for the State has contended that though the impugned order has been passed on a pre-written format by filling up gaps, it would be evident from perusal of the order impugned that sufficient grounds were available before the learned Magistrate to proceed further against the petitioners under Sections 406, 420 of the Indian Penal Code and Section 3 and 4 of the Dowry Prohibition Act. He contended that merely because the order has been passed on a pre-written format, it cannot be presumed that the learned Magistrate failed to apply his judicial mind.

5.

I have heard learned counsel for the parties and carefully perused the impugned order dated 29.06.2017. 6.

Without entering into the merits of the allegations, I am of the considered opinion that the order impugned cannot be sustained as it has been passed by filling up blanks on a prewritten format. It is true that an elaborate order is not required to be passed to take cognizance and to issue summons, but the order must disclose that there has been an application of judicial mind. The practice of filling up of blanks in readily typed/written format

3/5 for passing judicial order has been deprecated by this Court on many occasions. It is unfortunate that despite there being repeated orders in this regard, the learned Judicial Magistrate 1st Class, Jehanabad has passed the order in a mechanical and objectionable manner.

7.

It is well settled that summoning of an accused in a criminal case is a serious matter. The need for proper application of mind by the court at the stage of summoning has been highlighted by the Supreme Court in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others [(1998)5 SCC 749] as under:- "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion.

The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the

4/5 Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

8.

An order of cognizance passed in a standardized format by filling up perfunctory details buttress an ex facie lack of application of judicial mind.

9.

Keeping in mind the discussions made hereinabove and the ratio laid down by the Supreme Court in Pepsi Foods Ltd. and Another (supra), the impugned order dated 29.06.2017 passed by the learned Judicial Magistrate 1st Class, Jehanabad is quashed and the matter is remitted back to the Court of Magistrate for passing order afresh after perusing the allegations made in the first information report, the statement of witnesses recorded under Section 161(3) of the Cr.P.C. and the police report submitted under Section 173(2) of the Cr.P.C.

10.

I hope and trust that the learned Judicial Magistrate shall be cautious in future and shall refrain from signing orders on

5/5 readily typed, written or printed format.

11.

With the aforesaid observation and direction, the application stands allowed.

(Ashwani Kumar Singh, J) Pradeep/- U T