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2022 (7) TMI 1170
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....dvocate for the petitioner submits that it is well-settled principle of law that summoning of the accused in a criminal case is a serious matter and the criminal law cannot be set in motion as a matter of course. Furthermore, the order of the learned Magistrate summoning the accused must reflect that he has applied his mind to the fact of the case and the law applicable thereto. He has to examine the nature of allegation made in the complaint and the evidence both oral and documentary in respect thereof before initiation of a criminal proceeding. In the present context, aforesaid complaint case no. C-9760 of 2011 was lodged by opposite party no. 2 on the basis of a complaint with a prayer to issue summon under section 500/504 Indian Penal C....
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....ainst petitioner/accused before the court under Section 500/504 of the Indian Penal Code. He further submits that the opposite party no. 1 already started police case under section498A IPC on the basis self same allegation and continuance of second proceeding on the basis of self same cause of action is not permissible in law and issuance of said process under section 204 of the code of criminal procedure has seriously prejudiced petitioner. In this context Md. Ahmed relied upon two judgments Babubhai vs. State of Gujarat and others reported in (2010) 12 SCC 254 and T.T. Antony vs. State of Kerala & others reported in(2001) SCC (Cri) 1048. 4. Mr. Roy Choudhury, learned Advocate appearing on behalf of the state submits that order no. 1 pass....
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....posite party no. 1/complainant and for which complainant lost her prestige, goodwill in the locality and became seriously ill and has been suffering from mental agony and she was treated by a local doctor and for which the petitioner committed an offence under Sections 500/504 of the Indian Penal Code. 6. On the basis of said written complaint where in prayer was made by complainant to issue process against the accused person under section 500/504 IPC, order no. 1 dated 19.09.2011 by which cognizance was taken by Magistrate and subsequent orders were passed, in aforesaid C. Case No. 9760 of 2011. Let me reproduce the relevant orders passed by Magistrate. Order No. 1 Date 19/9/11 A petition of Complaint filed u/s. 138 N.I. Act. Heard ld....
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....tement recorded by Magistrate during initial deposition, not even a single word has been used anywhere which can constitute offence under section 138 of N.I. Act. 9. In the catena of judgments it has been reiterated that "taking cognizance of an offence" is not a mere formality. At the time of taking cognizance of the offence, the court is required to consider the averments made in the complaint. Taking of cognizance is thus a sine quo non or condition precedent for holding a valid trial. This is evident from the fact that chapter XIV (sections 190-199) of the code deals with under the heading "conditions requisite for initiation of proceeding", then comes Chapter XVI (Section 204-210) under the heading "commencement of proceeding before M....
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.... proceeding under Section 200 and the succeeding sections in Chapter XV of the Code, he said to have taken cognizance of the offence within the meaning of Section 190(1) (a) of Code of Criminal Procedure. 11. In the present case, Magistrate received a complaint which discloses an allegation that the petitioner herein has defamed her inter alia by describing her as ex-wife in open place and also by threatening her and if the Magistrate on receiving such complaint would have spent few seconds in order to go through the same and further had he spent his time to apply his judicial mind, then by no stretch of imagination, he could have observed that the case filed under section 138 of N.I. Act. It is needless to say that the Magistrate takes co....
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....ned order, but It must be apparent from the order that Magistrate has applied his judicial mind. A cognizance of an offence taken by a Magistrate without applying judicial mind upon the complaint cannot justify the subsequent stage of proceeding. Such illegality of taking cognizance is not safeguarded under Section 460 of the Code of Criminal Procedure. 13. Furthermore, Rule 183 of the Calcutta High Court Criminal Rules and Order specifically provides that the orders requiring the exercise of judicial discretion and the final order shall be recorded by the Magistrate in his own hand or typed by him, others may be recorded under his direction by the Bench Clerk. Here copy of the impugned order no. 1 clearly reflects that the concerned Magis....