- (1.) HEARD learned counsel for the parties and perused the record. This criminal revision has been preferred against the impugned order dated 17.7.2010, passed by learned Chief Judicial Magistrate, Kaushambi in Criminal Case No.5335 of 2010, State Vs. Qavi Ahmad, arising out of Crime No.83 of 2010, under Sections 417, 420, 467, 468, 471 I.P.C., police station Kokhraj, district Kaushambi, whereby learned Magistrate has taken cognizance in accordance with the provisions contained under Section 190 (1) (b) Cr.P.C. and issued process againstthe revisionist under Section 204 Cr.P.C. The impugned order has been challenged on the ground that it is incorrect, illegal and improper.
(2.) LEARNED counsel for the revisionist has inter alia contended that the order taking cognizance and issuing process has been passed by the learned Magistrate on a printed proforma, which establishes that he has not applied his mind to the evidence on record in order to take cognizance of the offence concerned. He has relied on case laws like Harishchandra Prasad Mani and others Vs. State of Jharkhand and another (2007) 15 Supreme Court Cases 494, Fakhruddin Ahmad vs. State of Uttaranchal and another (2008) 17 Supreme Court Cases 157 and Ankit Vs. State of U.P. and others U.P. Criminal Report 2009 (3) 427. Per contra, learned A.G.A. has argued that there are sufficient materials collected by the Investigating Officer making out a prima facie case against the accused and, therefore, the order impugned is neither incorrect nor illegal nor improper and revision lacks merit, but he has not challenged the fact that the order impugned is on printed proforma. I have applied my judicial mind to the facts, circumstances and the order impugned. In the case of Fakhruddin Ahmad (supra), the Hon'ble Supreme Court has observed that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by "taking cognizance". 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 title 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. In the case of Harishchandra Prasad Mani and others (supra), it was held in para 12 that it is well settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused vide R.P. Kapur v. State of Punjab AIR 1960 SC 866: (1960) 3 SCR 388: 1960 Cri LJ 1239, State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426, Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305: 1993 SCC (Cri) 36, Raghubir Saran (Dr.) v. State of Bihar AIR 1964 SC 1:(1964) 2 SCR 336:(1964) 1 CRi LJ 1, State of Karnataka v. M Devendrappa (2002) 3 SCC 89: 2002 SCC (Cri) 539 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122: 2005 SCC (Cri) 283. The bare perusal of the order impugned depicts that learned Magistrate does not appear to have applied his judicial mind towards the material collected by the Investigating Officer against the revisionist in this case.
(3.) ON similar ground, this Court has already held that the impugned order being prepared and passed by filling up the blanks on the printed proforma is wholly illegal and invalid. The result is that order impugned dated 17.7.2010, which has been prepared and passed by filling the blanks on the printed proforma, is illegal, incorrect and improper. In the result, the revision holds good and deserves to be allowed. The criminal revision is allowed. Impugned order dated 17.7.2010, is set aside. Learned court below is directed to pass the orders afresh according to law by applying his judicial mind on the materials collected by the Investigating Officer, which he has submitted in police report under Section 173 Cr.P.C.;