MEHMOOD UL REHMANversusKHAZIR MOHAMMAD TUNDA AND ORS.

                    [2015] 4 S.C.R. 841                         841


                 MEHMOOD UL REHMAN                               A
                             v.
        KHAZIR MOHAMMAD TUN DA AND ORS.
         (Criminal Appeal No. 1347 of 2010 etc.)
                                                                 B
                      March 31, 2015

 [KURIAN JOSEPH AND ADARSH KUMAR GOEL, JJ.)

     Code of Criminal Procedure, 1973 - ss.190(1)(a), 204
and 482 - Issue of process after taking cognizance of            C
offence u/s. 190(1)(a) - Application uls. 482 for quashing
the proceedings - Rejected by High Court - In appeal,
held: The Magistrate can proceed u/s. 204 by issuing
process, only when he is satisfied that allegations in the
complaint constitute an offence and when considered              D
alongwit/1 the statements recorded, would prima facie make
the accusedalnswerab/e before the court - Application of
mind by tha Magistrate is best demonstrated by disclosure
of mind on the satisfaction - If there is no such indication,
for proceeding ulss. 1901204, the High Court is bound to         E
invoke its inherent power in order to prevent abuse of
power of the Criminal Court - In the present case, there is
no indication on the application of mind by the Magistrate
in taking cognizance and issuing process for ti'le offence       F
u/s. 500 of Ranbir Pana/ Code - Matter remitted to the
Magistrate for consideration afresh - Ranbir PP,nal Code,
1932 - s. 500.

    Allowing the appeals arid remitting the matter to
judicial Magistrate, the Court.                       G

    HELD: 1. Cognizance of an offence on con.plaint
is taken for tile purpose of issuing process to the

                            841                                  H
842        SUPREME COURT REPORTS               [2015] 4 S.C.R.


A  accused. Since it is a process of taking judicial notice
   of certain facts which constitute an offence, there has
   to be application of mind as to whether the allegations
   in the complaint when considered along with the
   statements recorded or the inquiry conducted thereon,
 B would constitute violation of law so as to call a person
   to appear before the criminal court. It is not a
   mechanical process or matter of course. (Para 21]
   (856-F-H]

C          Pepsi Foods limited and Anr. v. Special Judicial
      Magistrate and Ors. (1998) 5 SCC 749: 1997 (5) Suppl.
      SCR 12; Darshan Singh Ram Kishan v. State of
      Maharashtra (1971) 2 SCC 654: 1972 (1) SCR 571;
      Emperor v. Sourindra Mohan Chuckerbutty (1910) I.LR.
D     Vol. XXXVll, Cal. 412; Smt. Nagawwa v. Verranna
      Shivalingappa Kanjali and Ors. (1976) 3 SCC 736: 1976
      (0) Suppl. SCR 123; Kishun Singh and Ors. v. State of
      Bihar (1993) 2 SCC 16:1993 (1) SCR 31; State of WB.
      and Anr. v. Mohd. Khalid and Ors. (1995) 1 sec 684:1994
E     (6) Suppl. SCR 16; Kanti Bhadra Shah and Anr. v. State
      of W.B. (2000) 1 sec 722: 2000 (1) SCR 27; U.P
      Pollution Control Board v. Mohan Meakins Limited and Ors.
      (2000) 3 SCC 745: 2000 (2) SCR 566; Deputy Chief
F     Controller of Imports and Exports v. Roshanlal Agarwal and
      Ors. (2003) 4 SCC 139: 2003 (2) SCR 621; Jagdish
      Ram v. state of Rajasthan and Anr. 2004 (4) SCC 432:
      2004 (2) SCR 846; S.K. Sinha, Chief Enforcement Officer
      v. Videocon International Limited and Ors. (2008) 2 SCC
G     492: 2008 (2) SCR 36; U..P Polution control Board v.
      Dr. Bhupndra Kumar Modi and Anr. (2009) 2 SCC 147:
      2008 (17) SCR 349; Bhushan Kumar and Anr. v. State
      (NCT of Delhi) and Anr. (2012) 5 sec 424: 2012 (2) SCR
      696- relied on.
H
   MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                    843
                  TUN DA

     2. The steps taken by the Magistrate u/s.190(1 )(a)    A
CrPC followed by s.204 of CrPC should reflect that the
Magistrate has applied his mind to the facts and the
statements and he is satisfied that there is ground for
proceeding further in the matter by asking the person
against whom the violation of law is alleged, to appear     B
before the court. The Magistrate is not to act as a post
office in taking cognizance of each and every complaint
filed before him and issue process as a matter of
course. There must be sufficient indication in the order
passed by the Magistrate that he is satisfied that the      C
allegations in the complaint constitute an offence and
when considered along with the statements recorded
and the result of inquiry or report of investigation u/
s.202 of CrPC, if any, the accused is answerable before
                                                            0
the criminal court, there is ground for proceeding
against the accused u/s. 204 of CrPC, by issuing
process for appearance. Application of mind is best
demonstrated by disclosure of mind on the
satisfaction. If there is no such indication in a case      E
where the Magistrate proceeds u/ss.190/204 of CrPC,
the High Court u/s.482 of CrPC is bound to invoke its
inherent power in order to prevent abuse of the power
of the criminal court. To be called to appear before
criminal court as an accused is a serious matter            F
affecting one's dignity, self respect and image in
society. Hence, the process of criminal court shall not
be made a weapon of harassment. [Para 23] [857-D-E,
G-H; 858-A-D]
                                                      G
    3. In the present case, there is no indication on
the application of mind by the Magistrate in taking
cognizance and issuing process to the appellants. The
application of mind cannot be inferred. Though no
formal or speaking or reasoned orders are required at H
844     SUPREME COURT REPORTS              [2015] 4 S.C.R.


A the stage of s.190/204 CrPC, there must be sufficient
  indication on the application of mind by the Magistrate
  to the fa~ts constituting commission of an offence and
  the statements recorded u/s.200 of CrPC so as to
  proceed against the offender. No doubt, the High Court
B is right in holding that the veracity of the allegations.
  is a question of evidence. Question is not about
  veracity of the allegations; but whether the respondents
  are answerable at all before the criminal court. There
  is no indication in that regard in the order passed by
C the Magistrate. Hence, the orders passed by the
  Judicial Magistrate and the High Court are set aside.
  The matter is remitted to the Magistrate for fresh
  consideration and further action, if required to be taken
  i:i accordance with law. [Para 24] [858-E-H; 859-A-B]
0
                     Case Law Reference

      1997 (5) Suppl. SCR 12         relied on    Para 8

 E    1972 (1) SCR 571               relied on    Para 9

      (1910) l.L.R. Vol. XXXVll, Cal.412 relied on Para 10

      1976 (0) Suppl. SCR 123         relied on   Para 11

F     1993 (1) SCR 31                relied on    Para 12

      1994 (6) Suppl. SCR 16         relied on    Para 13

      2000 (1) SCR 27                relied on    Para 14

G     2000 (2) SCR 566               relied on    Para 15

      2003 (2) SCR 621               relied on    Para 16

      2004 (2) SCR 846               relied on     Para 17

H
   MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                    845
                  TUN DA

  2008 (2) SCR 36                   relied on    Para 18    A

  2008 (17) SCR 349                 relied on    Para 19

  2012 (2) SCR 696                  relied on   Para 20

   CRIMINAL APPELLATE JURISDICTION : Criminal               B
Appeal No. 1347 of 2010.

    From the Judgment and Order dated 18.05.2007 of the
High Court of Jammu and Kashmir at Srinagar in Petition
No. 23 of 2007. ·                                       C

                             WITH

    Crl. A. No. 1348/2010.

    Soli J. Sorabjee, Vibha Datta Makhija, Sarad Kumar      D
Singhania, Amit Kumar Singh, Rashmi Singhania, Praveen
Chaturvedi, Anisul Haque, S. Janani, Deepak Goel,
Sunando Raha for the appearing parties.

    The Judgment of the Court was delivered by              E

      KURIAN, J. 1. Cognizance of an offence is taken by
the Magistrate under Chapter XIV Section 190 of The Code
of Criminal Procedure, 1973 (hereinafter referred to as
'CrPC'). The Chapter deals with "Conditions Requisite For F
Initiation of Proceedings". The Magistrate is empowered to
take cognizance of an offence under Section 190(1 )(a) of
CrPC upon receiving a complaint of facts which constitute
such offence. Chapter XV CrPC deals with the further
procedure for dealing with "Complaints to Magistrate". G
Under Section 200 of CrPC, the Magistrate, taking
cognizance of an offence on a complaint, shall examine
upon oath the complainant and the witnesses, if any,
present and the substance of such examination should be
reduced to writing and the same shall be signed by the H
846      SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A complainant, the witnesses and the Magistrate. Under
  Section 202 of CrPC, the Magistrate, if required, is
  empowered to either inquire into the case himself or direct
  an investigation to be made by a competent person "for
  the purpose of deciding whether or not there is sufficient
B ground for proceeding". If, after considering the statements
  recorded under Section 200 of CrPC and the result of the
  inquiry or investigation under Section 202 of CrPC, the
  Magistrate is of the opinion that there is no sufficient ground
  for proceeding, he should dismiss the complaint, after
C briefly recording the reasons for doing so. Chapter XVI
  CrPC deals with "Commencement of Proceedings before
  Magistrate". If, in the opinion of the Magistrate taking
  cognizance of an offence, there is sufficient ground for
  proceeding, the Magistrate has to issue process under
0
  Section 204(1) of CrPC for attendance of the accused.

      2. In the instant case, we are called upon to decide
  the scope of the 'opinion of Magistrate' on sufficient ground
  for proceeding to issue process to the accused. The
E question has arisen in the background of an order passed
  by the Judicial Magistrate First Class, Srinagar on
  03.04.2007 on a complaint filed by the first respondent
  herein under Section 500 of Ranbir Penal Code, 1932
F [Section 500 the Indian Penal Code (45 of 1860)]. The
  operative portion of the order reads as follows:

         "Perused the complaint, and the statements recorded.
         In the first instance of proceedings, let bail warrant
         to the tune of Rs.15,000/- be issued against the
G        alleged accused persons, with direction to accused
         persons to cause their appearance before this court
         on 22.4.07, to answer the material questions."

       3. According to the appellants, the complaint filed by
H the first respondent did not constitute an offence and hence
   MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                         847
             TUNDA [KURIAN, J]

they were not liable to be called by the Magistrate to defend    A
the criminal proceedings. Thus, aggrieved, the appellants
filed a petition to quash the proceedings initiated by the
Magistrate by order dated 03.04.2007.

     4. The High Court, by the impugned order, rejected the      B
petition holding that the veracity of allegations made in the
complaint filed by the first respondent before the Magistrate
"is a question of evidence and can be settled only when
the evidence is adduced".
                                                                 c
     5. Heard Shri Soli J. Sorabjee, learned Senior Counsel
appearing for the appellants in Criminal Appeal No. 1347
of 2010 and appearing for the respondents in Criminal
Appeal No. 1348 of 2010. Ms. Vibha Datta Makhija, learned
Senior Counsel appeared for the respondents in Criminal D
Appeal No. 1347 of 2010 and for the appellants in Criminal
Appeal No. 1348 of 2010. Ms. S. Janani, learned Counsel
appeared for the complainant/respondent(s) in both
Criminal Appeal Nos. 1347 of 2010 and 1348 of 2010.
                                                             E
     6. Though the learned Senior Counsel made an
attempt to canvas on the merits of the matter as well, we
do not find it necessary and it is not proper also at this
stage to deal with the same. However, the contention that
the Magistrate has not even formed an opinion as to F
whether the allegations in the complaint would constitute
an offence, when considered along with the statements
recorded under Section 200 of CrPC, requires
consideration.
                                                             G
     7. The question is: how does a Magistrate, while taking
cognizance of an offence on complaint, indicate his
satisfaction regarding the ground for proceeding against the
accused.
                                                             H
848         SUPREME COURT REPORTS               [2015] 4 S.C.R.


A      8. In Pepsi Foods Limited and another v. Special
   Judicial Magistrate and others1, this Court has held that
   exercise under Section 204 of CrPC of summoning an
   accused in a criminal case is a serious matter and that the
   process of criminal law cannot be set into motion in a
 B mechanical manner. It was also held that 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
   governing the issue. To quote:

C          "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
D          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
E          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
 F
           evidence before summoning of the accused. The
           Magistrate has to carefully scrutinise the evidence
           brought on record and may even himself put
           questions to the complainant and his witnesses to
G          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."

H     1 (1998) 5 sec 749
    MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                        849
              TUNDA [KURIAN, J.]

     9. In taking recourse to such a serious process, this A
Court has consistently held that the Magistrate must apply
his mind on the allegations on commission of the offence.
In Darshan Singh Ram Kishan v. State of Maharashtra 2,
it was held that the process of taking cognizance does not
involve any formal action, but it occurs as soon as the          B
Magistrate applies his mind to the allegations and thereafter
takes judicial notice of the offence. To quote:

       "8. As provided by Section 190 of the Code of
      Criminal Procedure, a Magistrate may take                  C
      cognizance of an offence either, (a) upon receiving a
      complaint, or (b) upon a police report, or (c) upon
      information received from a person other than a police
      officer or even upon his own information or suspicion
      that such an offence has been committed. As has            D
      often been held, taking cognizance does not involve
      any formal action or indeed action of any kind but
      occurs as soon as a Magistrate applies his mind to
      the suspected commission of an offence. Cognizance,
      therefore, takes place at a point when a Magistrate        E
      first takes judicial notice of an offence. This is the
      position whether the Magistrate takes cognizance of
      an offence on a complaint, or on a police report, or
      upon information of a person other than a police           F
      officer. Therefore, when a Magistrate takes
      cognizance of an offence upon a police report, prima
      facic he does so of the offence or offences disclosed
      in such report."

     10.   In one of the early decisions, Emperor v.             G
Sourindra Mohan Chuckerbutty 3 , a Division Bench of the

2 (1971) 2 sec 654

3 (1910) l.L.R. Vol.XXXVll, Cal. 412                             H
                                                                    ~·
850         SUPREME COURT REPORTS               [2015] 4 S.C.R.


A     Calcutta High Court has taken the same view ... "taking
      cognizance does not involve any formal action, or indeed
      action of any kind, but occurs as soon as a Magistrate, as
      such, applies his mind to the suspected commission of an
      offence".
B
       11. In Smt. Nagawwa v. Veeranna Shivalingappa
  Konjalgi and others 4 , this Court took the view that in the
  process of taking cognizance and issue of process to the
  accused, Magistrate has to form an opinion that a prima
C facie case is made out against the accused. At that stage,
  the Magistrate is also competent to consider whether there
  are inherent improbabilities appearing on the face of the
  complaint or in the evidence led by the complainant. To
  quote:
D
        "5. . . . It is true that in coming to a decision as to
        whether a process should be issued the Magistrate
        can take into consideration inherent improbabilities
        appearing on the face of the complaint or in the
E       evidence led by the complainant in support of the
        allegations but there appears to be a very thin line of
        demarcation between a probability of conviction of the
        accused and establishment of a prima facie case
        against him. The Magistrate has been given an
F       undoubted discretion in the matter and the discretion
        has to be judicially exercised by him. Once the
        Magistrate has exercised his discretion it is not for the
        High Court, or even this Court, to substitute its own
        discretion for that of the Magistrate or to examine the
G       case on merits with a view to find out whether or not
        the allegations in the complaint, if proved, would
        ultimately end in conviction of the accused .... "


H     4 (1976) 3 sec 736
..      MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                           851
                  TUNDA [KURIAN, J.]

          12. In Kishun Singh and Others v. State of Bihar5 ,           A
     this Court reiterated the position that where, on application
     of mind, the allegations in the complaint, according to the
     Magistrate, if proved, would constitute an offence,
     cognizance is to be is taken of the offence so as to proceed
     further against the accused. To quote:                             B

          "7 . ... Even though the expression 'take cognizance'
          is not defined, it is well settled by a catena of
          decisions of this Court that when the Magistrate takes
          notice of the accusations and applies his mind to the         c
          allegations made in the complaint or police report or
          information and on being satisfied that the allegations,
          if proved, would constitute. an offence decides to
          initiate judicial proceedings against the alleged
          offender he is said to have taken cognizance of the           D
          offence. It is essential to bear in mind the fact that
          cognizance is in regard to the offence and not the
          offender. Mere application of mind does not amount
          to taking cognizance unless the Magistrate does so
          for proceeding under Sections 200/204 of the Code             E
             "

         13. In State of W.B. and another v. Mohd. Khalid and
     others 6 , it has been held by this Court that while exercising
     the power to take cognizance, a Magistrate has to see               F
     whether there is any basis for initiating judicial proceedings.
     At paragraph-43, it has been held as follows:

           "43 . ... Section 190 of the Code, talks of cognizance
          of offences by Magistrates. This expression has not G
          been defined in the Code. In its broad and literal

     5 (1993) 2 sec 16

     6 (1995) 1 sec 684                                                 H
852         SUPREME COURT REPORTS                 [2015] 4 S.C.R.     ...

A          sense, it means taking notice of an offence. This
           would include the intention of initiating judicial
           proceedings against the offender in respect of that
           offence or taking steps to see whether there is any
           basis for initiating judicial proceedings or for other
 B         purposes. The word 'cognizance' indicates the point
           when a Magistrate or a Judge first takes judicial notice
           of an offence. It is entirely a different thing from
           initiation of proceedings; rather it is the condition
           precedent to the initiation of proceedings by the
 c         Magistrate or the Judge. Cognizance is taken of cases
           and not of persons."

       14. In Kanti Bhadra Shah and another v. State of
   W.8.7, this Court has taken the view that it is quite
 D unnecessary to write detailed orders at the stage of issuing
   process.

         15. In U.P. Pollution Control Board v. Mohan
   Meakins Limited and others 8 , the position was further
 E clarified that it was not necessary to pass a speaking order
   at the stage of taking cognizance.

      16. In Deputy Chief Controller of Imports and
  Exports v. Roshanlal Agarwal and others 9 , this Court
F considered the situation where the impugned order passed
  by the Magistrate read as follows: "Cognizance taken.
  Register the case. Issue summons to the accused". It was
  held that "at the stage of issuing the process to the
  accused, Magistrate is not required to record reasons".
G Kanti Bhadra Shah (supra) and U.P. Pollution Control

      7 c2000) 1 sec 722

      8 (2000) 3 $CC 745

H · 9 (2003) 4 sec 139
   MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                       853
             TUNDA [KURIAN, J.]

Board (supra) were also referred to in the said decision.      A

     17. In Jagdish Ram v. State of Rajasthan and
another 10 , the law was restated holding that at the stage
of issuing process to the accused, the Magistrate is not
required to record reasons. However, he has to be satisfied    B
that there is sufficient ground for proceeding and such
satisfaction is not whether there is sufficient ground for
conviction. To quote:

      "10. . .. The taking of cognizance of the offence is     c
      an area exclusively within the domain of a Magistrate.
      At this stage, the Magistrate has to be satisfied
      whether there is sufficient ground for proceeding and
      not whether there is sufficient ground for conviction.
      Whether the evidence is adequate for supporting the D
      conviction, can be determined only at the trial and not
      at the stage of inquiry. At the stage of issuing the
      process to the accused, the Magistrate is not required
      to record reasons."
                                                              E
     18. In S.K. Sinha, Chief Enforcement Officer v.
Videocon International Limited and others 11 , this Court
held that taking cognizance has no esoteric or mystic
significance in criminal law and it connotes that a judicial
notice is taken of an offence, after application of mind. To F
quote:

      "19. The expression "cognizance" has not been
      defined in the Code. But the word (cognizance) is of
      indefinite import. It has no esoteric or mystic G
      significance in criminal law. It merely means "become
      aware of" and when used with reference to a court
10 (2004) 4 sec 432
11 (2008) 2 sec 492                                            H
854         SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A           or a Judge, it connotes "to take notice of judicially". It
            indicates the point when a court or a Magistrate takes
            judicial notice of an offence with a view to initiating
            proceedings in respect of such offence said to have
            been committed by someone.
 B
            20. "Taking cognizance" does not involve any formal
            action of any kind. It occurs as soon as a Magistrate
            applies his mind to the suspected commission of an
            offence. Cognizance is taken prior to commencement
C           of criminal proceedings. Taking of cognizance is thus
            a sine qua non or condition precedent for holding a
            valid trial. Cognizance is taken of an offence and not
            of an offender. Whether or not a Magistrate has taken
            cognizance of an offence depends on the facts and
D           circumstances of each case and no rule of universal
            application can be laid down as to when a Magistrate
            can be said to have taken cognizance."

      19. In U.P. Pollution Control Board v. Dr. Bhupendra
E Kumar Modi and another12 , at paragraph-23, the position
  has been discussed as follows:

           "23. It is a settled legal position that at the stage of
           issuing process, the Magistrate is mainly concerned
F          with the allegations made in the complaint or the
           evidence led in support of the same and he is only
           to be prima facie satisfied whether there are sufficient
           grounds for proceeding against the accused."

G         20. In Bhushan Kumar and another v. State (NCT
      of Delhi) and another13 , the requirement of application of
      mind in the process of taking cognizance was reiterated.
      12 (2009) 2 sec 147

H     13 (2012) 5 sec 424
   MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                            855
             TUNDA [KURIAN, J.]

It was further held that summons is issued to notify an A
individual of his legal obligation to appear before the
Magistrate as a response to the alleged violation of law. It
was further held that in the process thus issued, the
Magistrate need not explicitly state the reasons.
Paragraphs-11 to 13 contain the relevant discussion, which B
read as follows:

     "11. In Chief Enforcement Officer v. Videocon
     International Ltd.;J. (SCC p. 499, para 19) the
     expression "cognizance" was explained by this Court            C
     as ."it merely means 'become aware of' and when
     used with reference to a court or a Judge, it connotes
     'to take notice of judicially'. It indicates the point when
     a court or a Magistrate takes judicial notice of an
     offence with a view to initiating proceedings in respect       D
     of such offence said to have been committed by
     someone." It is entirely a different thing from initiation
     of proceedings; rather it is the condition precedent to
     the initiation of proceedings by the Magistrate or the
     Judge. Cognizance is taken of cases and not of                 E
     persons. Under Section 190 of the Code, it is the
     application of judicial mind to the averments in the
     complaint that constitutes cognizance. At this stage,
     the Magistrate has to be satisfied whether there is            F
     sufficient ground for proceeding and not whether there
     is sufficient ground for conviction. Whether the
     evidence is adequate for supporting the conviction can
     be determined only at the trial and not at the stage
     of enquiry. If there is sufficient ground for proceeding       G
     then the Magistrate is empowered for issuance of
     process under Section 204 of the Code.

     12. A "summons" is a process issued by a court calling
     upon a person to appear before a Magistrate. It is             H
856       SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A        used for the purpose of notifying an individual of his
         legal obligation to appear before the Magistrate as a
         response to violation of law. In other words, the
         summons will announce to the person to whom it is
         directed that a legal proceeding has been started
 B       against that person and the date and time on which
         the person must appear in court. A person who is
         summoned is legally bound to appear before the court
         on the given date and time. Wilful disobedience is
         liable to be punished under Section 174 IPC. It is a
c        ground for contempt of court.

         13. Section 204 of the Code does not mandate the
         Magistrate to explicitly state the reasons for issuance
         of summons. It clearly states that if in the opinion of
D        a Magistrate taking cognizance of an offence, there
         is sufficient ground for proceeding, then the summons
         may be issued. This section mandates the Magistrate
         to form an opinion c:is to whether there exists a
         sufficient ground for summons to be issued but it is
E        nowhere mentioned in the section that the explicit
         narration of the same is mandatory, meaning thereby
         that it is not a preiequisite for deciding the validity of
         the summons issued."
F       21. The extensive reference to the case law would
  clearly show that cognizance of an offence on complaint
  is taken for the purpose of issuing process to the accused.
  Since it is a process of taking judicial notice of certain facts
  which constitute an offence, there has to be application of
G mind as to whether the allegations in the complaint, when
  considered along with the statements recorded or the
  inquiry conducted thereon, would constitute violation of law
  so as to call a person to appear before the criminal court.
H It is not a mechanical process or matter of course. As held
   MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                     857
             TUNDA [KURIAN, J.]

by this Court in Pepsi Foods Limited (supra), to set in      A
motion the process of criminal law against .a person is a
serious matter.

    22. Under Section 190(1)(b) of CrPC, the Magistrate
has the aovantage of a police report and under Section       s
190(1)(c) of CrPC, he has the information or knowledge of
commission of an offence. But under Section 190(1 )(a) of
CrPC, he has only a complaint before him. The Code
hence specifies that ... "a complaint of facts which
constitute such offence". Therefore, if the complaint, on the C
face of it, does not disclose the commission of any offence,
the Magistrate shall not take cognizance under Section
190(1 )(a) of CrPC. The complaint is simply to be rejected.

    23. The steps taken by the Magistrate under Section      o
190(1 )(a) of CrPC followed by Section 204 of CrPC should
reflect that the Magistrate has applied his mind to the facts
and the statements and he is satisfied that there is ground
for proceeding further in the matter by asking the person
against whom the violation of law is alleged, to appear E
before the court. The satisfaction on the ground for
proceeding would mean that the facts alleged in the
complaint would constitute an offence, and when
considered along with the statements recorded, would,
prima facie, make the accused answerable before the court. F
No doubt, no formal order or a speaking order is required
to be passed at that stage. The Code of Criminal Procedure
requires speaking order to be passed under Section 203
of CrPC when the complaint is dismissed and that too the
reasons need to be stated only briefly. In other words, the G
Magistrate is not to act as a post office in taking cognizance
of each and every complaint filed before him and issue
process as a matter of course. There must be sufficient
indication in the order passed by the Magistrate that he is H
858         SUPREME COURT REPORTS                 [2015] 4 S.C.R.


A satisfied that the allegations in the complaint constitute an
  offence and when considered along with the statements
  recorded and the result of inquiry or report of investigation
  under Section 202 of CrPC, if any, the accused is
  answerable before the criminal court, there is ground for
B proceeding against the accused under Section 204 of
  CrPC, by issuing process for appearance. Application of
  mind is best demonstrated by disclosure of mind on the
  satisfaction. If there is no such indication in a case where
  the Magistrate proceeds under Sections 190/204 of CrPC,
C the High Court under Section 482 of CrPC is bound to
  invoke its inherent power in order to prevent abuse of the
  power of the criminal court. To be called to appear before
  criminal court as an accused is serious matter affecting
  one's dignity, self respect and image in society. Hence, the
0
  process of criminal court shall not be made a weapon of
  harassment.

           24. Having gone through the order passed by the
      Magistrate, we are satisfied that there is no indication on
E     the application of mind by the learned Magistrate in taking
      cognizance and issuing process to the appellants. The
      contention that the application of mind has to be inferred
      cannot be appreciated. The further contention that without
F     application of mind, the process will not be issued cannot
      also be appreciated. Though no formal or speaking or
      reasoned orders are required at the stage of Section 190/
      204 CrPC, there must be sufficient indication on the
      application of mind by the Magistrate to the facts
G     constituting commission of an offence and the statements
      recorded under Section 200 of CrPC so as to proceed
      against the offender. No doubt, the High Court is right in
      holding that the veracity of the allegations is a question of
      evidence. Question is not about veracity of the allegations;
H     but whether the respondents are answerable at all before
   MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD                       859
             TUNDA [KURIAN, J.]

the criminal court. There is no indication in that regard in A
the order passed by the learned Magistrate. We, hence,
set aside the order dated 03.04.2007 passed by the Judicial
Magistrate First Class, Srinagar and the impugned order
passed by the High Court. The matter is remitted to the
Magistrate for fresh consideration and further action, if B
required to be taken in accordance with law.

    25. The appeals are allowed as above.

Kalpana K. Tripathy                        Appeals allowed.    C