- (1.) S. S. Kulshrestha, J. Heard the learned counsel for the applicant and also the learned A. G. A. and perused the materials on record.
(2.) THIS application under Section 482 of the Code of Criminal Procedure (in short 'the Code') has been brought for quashing the order dated 15-7-1997 passed by the Addl. Chief Judicial Magistrate-II, Allahabad in crime case No. 6255/99 (case No. 990/96) whereby making the order for the registration and investigation of the case and the orders dated 18-1-2003 and 23- 5-2003 whereby issuing non- bailable warrants against the accused applicant. It has been contended by the accused applicant that in the aforesaid case the police after investigation submitted charge sheet on 27-7-1996 before the learned Magistrate who preferred to make the endorsement on 15-7-1997 for making the registration of the case on the basis of said charge sheet. THIS was also taken on the order sheet by putting the rubber seal on 15-7-1997 itself. Thereafter the case was transferred to some other Magistrate where on 30-4- 1998, 30-7-1998, 15-10-1998, 23-12-1999, 18-2-2000, 21-3-2000, 24-4-2000, 26-5-2001, 7-2-2002 and 17-8-2002 the order sheet was drawn and summons were issued afresh but those orders did not bear the signature of the presiding officer. It appears that the reader at his own had drawn the order sheet without placing the record before the learned Magistrate which is highly deplorable. Thereafter on 18-1- 2003 and 23-5-2003 non-bailable warrants were issued against the accused applicant. There is no mention on record about the taking of the cognizance. In that regard it may be mentioned that there should be application of mind before taking the cognizance of the offences. Mere registration of the case would not amount to taking of the cognizance. It may further be mentioned that that Chapter XIV of the Code deals with "conditions Requisite For Initiation Of Proceedings". Section 190 deals with cognizance of offences by Magistrate and it provides that a Magistrate may take cognizance (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, or (c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. After the submission of the charge sheet the cognizance is to be taken by the learned Magistrate as per the scheme of the Code in respect of the cognizable offences. Section 190 of the Code is one out of a group of sections under the headings "conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i. e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. No doubt, in one sense, clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of cognizance. The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means - become aware of and when used with reference to a Court or Judge, to take notice of judicially. This point also came up for discussion before the Hon'ble Apex Court in the case of D. Lakshminarayan v. Narayana, AIR 1976 SC page 1972, wherein it was observed: "the expression "taking cognizance of an offence" by the Magistrate has not been defined in the Code. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190 (1 ). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and nature of the preliminary action, if any taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1) (a ). If instead of proceeding under Chapter IX, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under Section 156 (3), he cannot be said to have taken cognizance of any offence. " From the materials on record it is clear that except for the registration of case and then issuing processes would no be construed to betaking cognizance of the offence (s ).
(3.) IT may also be mentioned that the summons were ordered to be issued repeatedly but it is not clear from the order sheet that at any point of time the accused applicant was served with any summons. In the circumstances straightway issuing of non-bailable warrants against the accused applicant is not justified as was also held in the case of Raj Bahadur Srivastava v. State of U. P. , 1992 LLJ 281. IT has further been mentioned that the accused applicant was already admitted on bail at the police station and he also executed bonds. Under such circumstances unless the deliberate absence from the side of the accused applicant is construed, there was no occasion for the learned Magistrate to insist for fresh bail as was also held in the cases of Mohit Malhotra v. State of Rajasthan, 1991 Crl LJ 806 and Yaqoob and others v. State of U. P. and another, 2001 (2) JIC 38 (All) (LB) : 2001 (42) ACC 301. In the given circumstances the orders dated 18-1-2003 and 23-5-2003 for the issuance of the non- bailable warrants are hereby set aside. The learned Magistrate is directed to adopt proper procedure for taking cognizance of the offence and the accused applicant shall also furnish fresh bail bonds before the learned Magistrate for the offences for which the charge sheet has been submitted. Application is accordingly finally disposed of. Application disposed of. .;