A.K. Roopanwal, J.@mdashThis application u/s 482, Code of Criminal Procedure has been moved for quashing the entire proceedings of Criminal case No. 6892 of 2005 State v. Saimual Albert and Ors., u/s 498A, 323, 504, 506, IPC and 3/4 D.P. Act, pending in the court of Chief Metropolitan Magistrate, Kanpur Nagar.
2. It appears from the record that an FIR at crime No. 530/04, u/s 498A, 323, 504, 506, IPC and 3/4 D.P. Act was registered against the applicant and four others at the behest of Shri Prem Prakash Maseeh. It was alleged in the FIR that the daughter of the informant namely Archana was married to Sudhir Albert S/o Saimual Albert on 16.5.03. Sudhir Albert was said to be working in a company in Abu Dhabi and was said to be earning Rs. 45,000/-p.m. The father of the applicant was a retired Merchant Navy Officer. In the marriage Saimual Albert, his wife Preeti Albert, brother-in-law of the applicant Nasir Jamal and Sudhir Albert demanded Rs. 2,00,000/-and jewellery which was paid. The daughter of the informant went to her husband on 17.5.03 and came to her parents on 20.5.03. She informed on her return that she was kept aloof from her husband by her father-in-law and others and was treated with cruelty. Her husband also did not object to the acts committed by the other family members. The accused were not satisfied with the material given in the marriage and were saying that they were not paid Rs. 5,00,000/-. She was told that she had to do service and if she does not do, her relations with her husband would be broken. When she showed inability, she was treated with cruelty, both mental and physical. The daughter of the informant provided financial help to her in-laws, but even then they did not mend their ways and up to 12.2.04 the lady paid about Rs. 1,25,000/-to her in-laws and also gave her whole jewellery. On 27.5.03 the applicant left India for Abu Dhabi on the promise that he would call his wife and daughter and also said that his wife was free to go to her parents any time. Even after leaving India by the husband the other family members continued atrocities against the lady and apprehending her murder. She was called by her parents. On 9.9.04 the applicant came back from Abu Dhabi and put a demand for Rs. 5,00,000/-before the informant. When informant showed his inability, the applicant did not take her wife with him, however, in order to make life peaceful the informant sent his daughter to her husband, but she was sent back. On 16.6.04 at about 8.30 p.m. the accused persons came at the house of the informant at Kanpur Nagar. The informant in order to bring certain items from the market left the house. The accused persons including the applicant demanded Rs. 5,00,000/-from the wife of the informant. When she refused, all the accused beat the daughter of the informant and also tried to strangulate her. The FIR was investigated upon and the charge sheet was submitted.
3. I have heard Mr. D.S. Mishra, learned Counsel for the applicant, learned AGA and perused the record. Mr. Mishra challenged the entire proceedings on the following grounds.
1 That the cognizance order dated 18.3.05 passed on the charge sheet is illegal as it has been passed without the application of mind and therefore, the whole proceedings based on such cognizance order are liable to be set aside;
2 That five persons were named in the FIR but the charge sheet has been submitted only against two persons which itself falsifies the prosecution case;
3 That the jurisdiction of the court at Kanpur Nagar is not made out.
4. Regarding the first argument it has been said by Mr. Mishra that the order taking cognizance must depict the application of mind and because that is not appearing in the present case, hence, the cognizance order dated 18.3.05 is liable to be quashed and so the entire proceedings. In this regard the reliance has been placed on (2006) 3 SCC (Cri) 179 State of Karnataka and Anr. v. Pastor P. Raju 2010 (2) JIC 3 (All) Saurabh Dewana v. State of U.P. and the judgment passed by the Apex Court in Criminal Appeal No. 1692/07 Pawan Kumar Sharma v. State of Uttaranchal.
5. In (2006) 3 SCC (Cri) 179 State of Karnataka and Anr. v. Pastor P. Raju it has been said that the word "cognizance" is different from the word "issuance of process". According to the Supreme Court taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his mind to the facts mentioned in a complaint or to the police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. In this ruling the ruling of
6. In the ruling of Pawan Kumar Sharma v. State of Uttaranchal the same distinction was made by the Apex Court. In the case of 2010 (2) JIC 3 (All) Saurabh Dewana v. State of U.P. it was held that the cognizance on the printed proforma is not a legal cognizance.
7. Thus, in view of above rulings relied upon by Mr. D.S. Mishra it appears that taking cognizance and issuance of process are different and are not the same. Now, the question arises as to what is required for a court to take cognizance and what is required for a court to issue process. As a criminal case is instituted only when the cognizance is taken, hence, at this stage the court is required to apply its mind to the facts and evidence before it. It is the fundamental function of the court. Because a person''s liberty is curtailed by instituting the proceedings against him, hence, it becomes obligatory upon the court taking cognizance to apply its mind to the facts and evidence before it to see as to whether an offence is made out or not. At this point of time the Magistrate is not at all required to undertake an elaborate enquiry and it is not needed to pass a detailed/reasoned order. He is also not required to mention the documents which he considered for satisfying himself to take cognizance as held in Rakesh Devi v. State of U.P. 2002 All LJ 30.
8. Once the cognizance is taken, then the Magistrate is duty bound to find out the real offenders and to issue process against them. Thus, the process shall be issued only when the offenders are located but cognizance is taken only when some offence is made out from the evidence produced before the court.
9. In the present case, a look at the cognizance order would reveal that the Magistrate had passed the same on the charge sheet and it is not in the printed form. This shows that before taking cognizance the Magistrate had applied his mind to the facts and evidence of the case. The order issuing process dated18.3.05 also shows that the Magistrate had chosen to issue process against all those accused who were nominated in the charge sheet. Therefore, in my opinion, both the orders in the present case i.e. the order taking cognizance and the order issuing process are well in accordance with law and need no quashing and so the proceedings on these grounds.
10. It is true that five persons were nominated in the FIR but charge sheet was submitted only against two. By this fact alone the whole charge sheet cannot be treated to be false. As the police could collect evidence only against two persons, hence, the charge sheet was submitted only against two. This can also not be a valid ground for quashing the proceedings.
11. A look at the record would reveal that major portion of the incident occurred at Bareilly but as the demand of dowry and cruelty upon the lady was also committed within the jurisdiction of Kanpur Nagar, hence, the court at Kanpur Nagar has the perfect jurisdiction to entertain the proceedings and in this regard the argument of Mr. Mishra cannot be accepted.
12. In view of the above, I do not find any merits in this petition. It is, accordingly,
