Patna High Court
RAKESH GIRIversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
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
- Arms Act — s. 27
- Indian Penal Code — s. 120B, 307
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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