- (1.) THIS is a petition under section 482 of the Code of Criminal Procedure (in short "the Code") for quashing the charge sheet filed in Case Crime No. 15 of 210, under sections 420 and 406 IPC, P.S. Civil Lines, District Moradabad.
(2.) HEARD learned counsel for the petitioner and the learned AGA for the State and perused the record and also the summoning order dated 03.06.2010. The learned counsel for the petitioner submitted that the learned Magistrate has not applied his mind to the facts and circumstances of the case before taking cognizance of the aforesaid offences and issuing processes to the petitioner. The learned counsel for the petitioner submitted in the aforesaid order, the Magistrate indicated that he has received the charge sheet under sections 420 and 406 IPC against the petitioner. He further indicated that the cognizance was taken and directed the office to register the case and issue processes to the petitioner. The learned counsel for the petitioner further submitted that the learned Magistrate no where specified in the summoning order dated 03.06.2010 that he perused the police report (charge sheet) and the statements of the witnesses and the other materials while taking the cognizance. The learned Magistrate has also not indicated in the aforesaid order that he was of the view that there was sufficient ground to proceed with the case.? In the absence of these material aspects, it cannot be contended that the learned Magistrate applied his mind to the facts of the case.?
(3.) THE learned counsel for the petitioner relied on paragraphs 14 & 15 of the judgement of the Apex Court in the case of Fakhruddin Ahmad v State of Uttaranchal & another 2009 (64) ACC 774, which are reproduced as follows: "14.From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by 'taking cognizance'. Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action. 15.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." It is well settled that the Magistrate is not bound by the conclusion of the Investigating Officer. He is competent under law to form his own independent opinion on the basis of the materials collected during the investigation. The Magistrate may or may not agree with the conclusion of the Investigating Officer. If the Investigating Officer submits charge sheet, in that eventuality the Magistrate may differ from the charge sheet and refuse to take cognizance by holding that no case is made out. In a case where the final report is submitted the Magistrate may on perusal of the materials placed in support of the final report opine that the conclusion of the Investigating Officer is not correct and the offence is made out. In that eventuality, the Magistrate may reject the final report and take cognizance of the offence. In appropriate cases, the Magistrate, after rejecting the final report may direct for further investigation/re-investigation. This preposition has been settled by the Hon'ble Apex Court in catena of cases and some of the them are as follows: 1.Abhinandan Jha vs Dinesh Mishra AIR 1968 SC 117 2.State of Maharashtra vs Sharad Chandra Vinayak Dongra & others AIR 1995 SC 231 3.Sanjay Bansal vs Jawahar Lal Vats AIR 2008 SC 207 4. M/s India Carat Private Ltd v State of Karnataka & another AIR 1989 S.C. 885 5. H.S. Bains vs State AIR 1980 S.C. 1883 6.Minu Kumari vs. State of Bihar [(2006) 4 SCC 359] 7.Popular Muthiah vs. State [(2006) 7 SCC 296]. 8. Gangadhar Janardan Mhatre vs. State of Maharashtra [(2004) 7 SCC 768]. ;