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Patna High Court

RAKESH GIRIversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The order dated 08.08.2018 taking cognizance of the offence is quashed and set aside for being passed mechanically without application of mind.

Summary

Rakesh Giri petitioned to quash the order dated 08.08.2018 by the Chief Judicial Magistrate that took cognizance of offences under IPC s.307 read with s.120B and Arms Act s.27. The prosecution had lodged three FIRs for the same incident, alleging that Giri conspired to murder an informant. Giri argued that the multiple FIRs were impermissible, his name appeared only in confessional statements and there was no other material linking him to the crime, and that the magistrate’s order was a mechanical, pro‑forma order showing no application of mind. The High Court examined precedents requiring a magistrate to apply judicial mind before taking cognizance and held that the order was unsustainable. Consequently, the court quashed the order and remitted the matter to the trial court for a reasoned order.

Issues considered

  • Whether the order taking cognizance of the offence was valid despite multiple FIRs for the same occurrence.
  • Whether the presence of the petitioner’s name in confessional statements alone suffices to sustain cognizance.
  • Whether a magistrate’s pro‑forma order without application of mind can be upheld.

Legislation cited

Subjects

  • cognizance
  • application of mind
  • multiple FIRs
  • quash order
  • criminal procedure
  • IPC 307
  • IPC 120B
  • Arms Act 27
  • procedural fairness

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.49845 of 2019

                      Arising Out of PS. Case No.-361 Year-2017 Thana- KATEYA District- Gopalganj
                 ======================================================
                 RAKESH GIRI Son of Late Rajendra Giri Resident of Village - Mafiguriyat,
                 P.O. and P.S.- Kateya, Dist.- Gopalganj.


                                                                                   ... ... Petitioner/s
                                                       Versus
                 The State of Bihar


                                                                             ... ... Opposite Party/s


                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr.Vikas Ratan Bharti, Advocate
                 For the Opposite Party/s :       Mr.Jai Narain Thakur, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
                                       ORAL ORDER

2   20-01-2026                    Heard learned counsel for the petitioner and learned

                   A.P.P. for the State.

                                 2. This application has been preferred by the

                   petitioner for quashing the order dated 08.08.2018 passed by the

                   learned A.C.J.M - XV, Gopalganj, in Kateya P.S Case No. 361

                   of 2017 by which cognizance has been taken for offence under

                   section 307 read with section 120 (B) of Indian Penal Code and

                   section 27 of Arms Act against the petitioner.

                                 3. The prosecution story in brief is that three F.I.Rs

                   have been registered for the same occurrence. The present F.I.R
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          was lodged upon the written report dated 27.11.2017 of one

          Satyendra Kumar-informant alleging that on 26.11.2017 at

          06.30 PM the informant was sitting at his residence with

          Ramesh Ram and another, meanwhile one Apache Motorcycle

          upon which two persons were sitting crossed from the front of

          the house of the informant several times and the informant

          found the activity of the motorcyclist to be suspicious therefore

          he informed the Officer-In-Charge of the police station on

          mobile about the same. Soon thereafter the motorcyclists fired

          upon the informant however the informant had a narrow escape

          and upon hearing the sound of gunshot, various persons came

          and, in the meantime, police had also arrived and thereafter the

          miscreants were chased and caught. It has been further alleged

          that on being caught and interrogated the miscreants disclosed

          and confessed that the present petitioner and one Mantu Singh

          came along with the miscreants and had identified the informant

          to the miscreants and that the miscreants were sent by one Tuna

          Giri. It was further alleged by the informant that he is of the

          suspicion that Tuna Giri who is the residence of Gopalganj and

          the petitioner along with others had conspired to kill the

          informant.

                       4. Furthermore, for the same alleged occurrence there
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          are two more FIR instituted and lodged apart from the above-

          mentioned FIR with respect to the same occurrence i.e. Kateya

          PS Case No. 360 of 2017 dated 27.11.2017 which was

          registered by one independent witness namely Kanhaiya Prasad

          Rai and the same was instituted against unknown persons and

          Kateya PS Case No. 359 of 2017 giving rise to Trial No. 2082

          of 2019 which was instituted by one Kumar Rajanikant SHO,

          Kateya Police Station for the same set of occurrence.

                       5. It is the case of the petitioner that his name has

          appeared on the confessional statement of the accused persons

          and that due to the informant being on inimical terms with the

          petitioner and the prevalent local politics the petitioner has been

          named in this case with false and concocted allegations. Also, as

          alleged there is no other material to proof the complicity of the

          petitioner in this case and that the said alleged occurrence has

          been done by the accused persons at the behest of some

          criminals who were in conspiracy with them.

                       6. The learned counsel for the petitioner has

          submitted that in the aforesaid Kateya PS Case NO. 359 of 2017

          cognizance has been taken vide order dated 06.04.2018 by

          A.C.J.M., XV, Gopalganj and that the petitioner had filed a

          petition dated 12.06.2019 before the Learned Court below for
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          amalgamation of the cases and hearing them as one case on one

          date and the same was disposed of vide order dated 13.06.2019

          whereby the learned court below has ordered that both the cases

          shall be tried together on the same date but separately.

                        7. The learned counsel for the petitioner has further

          submitted that it is well settled law that for the same set of

          occurrence two FIR cannot be lodged, however in the present

          case three F.I.R. have been lodged for the same set of

          occurrence which is not permissible in law. Also, there is no

          legal material available on record to prove the complicity of the

          petitioner in this case, and the FIR even if it is taken on its face

          value yet prima facie no case is being made out against the

          petitioner.

                        8. It is the categorical submission of the learned

          Counsel for the petitioner that, the impugned order 08.08.2018

          is totally unsustainable in the eye of law since, the order apears

          to have been filled in a proforma which illustrates a total non-

          application of mind.

                        9. The state has opposed the prayer of the petitioner

          and has supported the impugned order.

                        10. I have heard and considered the submissions of

          the parties and have perused the material on record.
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                       11. The impugned order dated 08.08.2018 is

          reproduced herein below:-




                       12. This Court has minutely perused the aforesaid

          impugned order dated 08.08.2018, and from the perusal of the

          aforesaid order it is clear that the order has been passed in a

          mechanical manner without properly appreciating the facts of

          the case.

                          13. The Hon’ble Supreme Court rendered in the
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          case of Pepsi Food Limited and Anr. vs. Special Judicial

          Magistrate and Others reported in (1998) 5 SCC 749 had held

          as under:-

                                  "Summoning of an accused in a Criminal Case is
                                  a serious matter. Criminal law cannot be set into
                                  motion as a matter of course. It is not that the
                                  Complainant has to bring only two witnesses to
                                  support his allegation in the Complaint to have
                                  the criminal law set into motion. The order of the
                                  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 allegations made in the
                                  Complaint and evidence both oral and
                                  documentary in support thereof and would that
                                  be sufficient for the complainant to succeed in
                                  bringing charge home to the accused. It is not
                                  that the Magistrate is a silent spectator at the
                                  time of recording of preliminary evidence before
                                  summoning of the accused. The Magistrate has
                                  to carefully scrutinize the evidence brought on
                                  record and may even himself put questions to the
                                  Complainant and his witnesses to elicit answers
                                  to find out the truthfulness of the allegations or
                                  otherwise and then examined if any offence is
                                  prima facie committed by all or any of the
                                  accused.”
                          14. Further the Hon’ble Supreme Court in the case

          of G. Sagar Suri vs. State of Uttar Pradesh reported as (2000)

          2 SCC 636 had held that before issuing process, a criminal court

          has to exercise a great deal of caution.

                          15. This Court in the case of Dharmesh Prasad

          Verma v. The State of Bihar, 2017 (1) PLJR 401 has held as

          under :-
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                            “27. The need for proper application of mind by the
                                 courts at the stage of summoning has been high-
                                 lighted by the Supreme Court in Pepsi Foods Ltd.
                                 v. Special Judicial Magistrate, (1998) 5 SCC
                                 749, in para 28 as follows:—

                                          “28. Summoning of an accused in a
                                          criminal case is a serious matter. Criminal
                                          law cannot be set into motion as a matter
                                          of course. It is not that the complainant has
                                          to bring only two witnesses to support his
                                          allegations in the complaint to have the
                                          criminal law set into motion. The order of
                                          the Magistrate summoning the accused
                                          must reflect that he has applied his mind to
                                          the facts of the case and the law applicable
                                          thereto. He has to examine the nature of
                                          allegations made in the complaint and the
                                          evidence both oral and documentary in
                                          support thereof and would that be sufficient
                                          for the complainant to succeed in bringing
                                          charge home to the accused. It is not that
                                          the Magistrate is a silent spectator at the
                                          time of recording of preliminary evidence
                                          before summoning of the accused. The
                                          Magistrate has to carefully scrutinize the
                                          evidence brought on record and may even
                                          himself put questions to the complainant
                                          and his witnesses to elicit answers to find
                                          out the truthfulness of the allegations or
                                          otherwise and then examine if any offence
                                          is prima facie committed by all or any of
                                          the accused.”
                                  28. It would be trite to remark that taking of
                                  cognizance and summoning of accused in a
                                  criminal case has serious consequence on the
                                  liberty of an accused, as pursuant to such order,
                                  he is made to take bail and face trial for a
                                  criminal offence. An order of cognizance passed in
                                  a standardized format by filling up the only
                                  perfunctory details buttress an ex facie lack of
                                  application of mind in the order of taking
                                  cognizance and summoning an accused.
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                                29. In Fakhruddin Ahmad v. State of Uttaranchal,
                                  (2008) 17 SCC 157, once again, in paragraph 17,
                                  the Supreme Court has held as follows:—
                                          “17. 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.”
                                  30. Keeping in mind the discussions made,
                                  hereinabove and the ratio laid down by the
                                  Supreme Court in Pepsi Foods Ltd. (supra) and
                                  Fakhruddin Ahmad (supra), this Court deems it fit
                                  and proper to direct that in future Judicial Officers
                                  shall refrain from passing orders in formats
                                  prepared in advance containing blanks to be filled
                                  in with formal details, as has been done in the
                                  present case. The Judicial Officers are further
                                  directed to pass orders of taking cognizance and
                                  summoning accused in a criminal case only after
                                  applying their judicial mind to the facts of the case
                                  and the law applicable thereto.”
                          16.     This Court in the case of Varun Berry &

          Anr. vs. The State of Bihar & Ors. (Criminal Miscellaneous

          No.14921 and 2023) has held in paragraph nos. 10, 11 and 12 as

          under :-
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                            “10. From perusal of the cognizance order dated
                                05.07.2022 passed by learned Magistrate it
                                appears that the same has been passed in a
                                printed format. The cognizance order has been
                                passed by learned Magistrate without any
                                application of mind and these kinds of orders have
                                been repeatedly deprecated by this Court.
                               11. A co-ordinate bench of this Court in case of
                                  Nokia Siemens Network India Pvt. Ltd & Others
                                  Vs. The State of Bihar & Others passed in Cr.
                                  Misc. No. 34891 of 2013 paragraph no. 7 of the
                                  aforesaid judgment reads as follows:-
                                          “7. It is true that an elaborate order is not
                                          required to be passed to take cognizance of
                                          the offence and issue of summons, the order
                                          must at least reflect that there has been
                                          application of mind. The manner in which
                                          the order has been passed, is shocking. The
                                          practice of filling-up of blanks in a pre-
                                          prepared printed format for passing
                                          judicial orders is highly objectionable. I
                                          must record that the Judicial Officers must
                                          refrain themselves from signing orders on
                                          pre-prepared printed formant without
                                          considering materials on record.”
                               12. In view of the above, this application is allowed.
                                  The impugned order dated 05.07.2022 passed by
                                  learned Chief Judicial Magistrate, Vaishali at
                                  Hajipur in connection with Complaint Case No.
                                  C-02-37 of 2022 is set aside. The matter is
                                  remitted back for fresh consideration by the
                                  learned Magistrate at the cognizance stage.”

                          17. Therefore from the afore-quoted judgments it is

          patently clear that the order taking cognizance has been passed

          by merely filling the blanks which is illustrative of complete

          non-application of mind and is therefore unsustainable.

                          18. Accordingly, the impugned order order dated
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                        08.08.2018 is quashed and set aside.

                                        19. The matter is remanded back to the concerned

                        trial Court for passing a well-reasoned order in accordance with

                        law.



                                                   (Sandeep Kumar, J)
tusharika/-

U       T


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