S.C.Agarwal, J. - (1.) This application under Section 482, Cr.P.C. has been filed to set-aside the order dated 11.8.2009 passed by Chief Judicial Magistrate, Jalaun at Orai taking cognizance in criminal case No. 1732 of 2009 arising out of case crime No. 201 of 2009, State of U.P. v. Satesh Kumar and another under Sections 452, 323, 504, 506, 325, IPC, Police Station Kotwali- Jalaun, Districit Jalaun.
(2.) Heard Sri Ajay Sengar, learned counsel for applicant and learned A.G.A. for respondent No.1. Issue of notice to opposite party No. 2 is dispensed with. The impugned order has been challenged by learned counsel for applicant on a technical ground only that learned Chief Judicial Magistrate did not apply his mind before taking cognizance of the offence. Reliance has been placed on a decision of the Hon'ble Apex Court in the case of Mangoo @ Mangal Singh v. State of M.P., 2009 (64) ACC 779 wherein it was held as under: "Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
(3.) Learned counsel for applicant submitted that from the impugned order it does not transpire that the Magistrate had taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith, and therefore, the impugned order be quashed and Magistrate be directed to decide the matter afresh. Section 173 (5) of the Code of Criminal Procedure, 1973 provides as under: When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. Reference to Section 170 of the Code in Section 173(5), Cr.P.C. relates to the cases where after investigation sufficient evidence against the accused was found. The order dated 11.8.2009 passed by the Magistrate translated into English reads as follows: Today this charge-sheet has been received. Perused. It is ordered to be registered. Cognizance taken. Copies be prepared. Accused-persons be summoned for 22.10.2009. Sd./- C.J.M., Oral 11.8.2009.;