VIKAS YADAV Vs. STATE OF U.P.

JUDGEMENT

(1.) - Heard Mr. Virendra Bhatia, learned Senior Advocate assisted by Mr. Ashwani Kumar Singh, learned Counsel for the petitioners as well as Mr. R.P. Shukla, learned Additional Government Advocate. The petitioners have challenged the order dated 25th of June, 2008, passed by the I Judicial Magistrate, Faizabad in a case arising out of Case Crime No. 973 of 2007, under sections 147, 148, 149, 363, 364, 307, 506 and 7 Criminal Law Amendment Act, Police Station Raunahi, district Faizabad, on the ground that by the order impugned the Magistrate has summoned the petitioners for trial under sections 147, 148, 149, 307, 363, 364, 366, 506, I.P.C. and 7 Criminal Law Amendment Act, Police Station Raunahi, district Faizabad without taking cognizance of offence, which is not permissible under the law. In support of his contentions the learned Senior Advocate drew the attention of this Court towards sections 190 and 204 of the Code of Criminal Procedure, which are reproduced hereunder :

(2.) In the light of the aforesaid provisions he submits that first under Sec. 190 of the Code of Criminal Procedure, the learned Magistrate has to take cognizance of an offence and after taking cognizance of an offence, if he is under opinion that there is sufficient ground for proceeding, he can issue summons or warrant under Sec. 204, but before taking cognizance of an offence he cannot proceed to issue summons or warrant as the case may be. He further invited the attention of this Court towards the order impugned, which according to him does not speak so, rather he submits that without taking cognizance directly he has issued summons which is an error of law, therefore, under the erroneous order the petitioners cannot be compelled to appear before the learned Magistrate. On the other hand the learned Additional Government Advocate submitted that even no provision of the Criminal Procedure Code requires any specific observation of the Court for taking cognizance, but once the summons have been issued, that means that the Magistrate has taken cognizance of an offence. In support of his contentions he placed the meaning of cognizance defined in the different dictionaries, which are as under : In Black's Law Dictionary the word "cognizance" has been defined as under : "Cognizance/ko(g)nezens/.

(3.) He also cited a decision of the Honourable Supreme Court rendered in the case of S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and others, 2008 (61) ACC 371 (SC) : 2008 (64) AIC 50 (SC) , in which the Honourable Supreme Court was called to decide the correctness or otherwise of the proposition of law by the High Court of Judicature at Bombay whether issuance of process in a criminal case is one and the same thing or can be equated with taking cognizance by a Criminal Court? And if the period of initiation of criminal proceedings should be quashed as barred by limitation? To appreciate the controversy raised in the appeal the Honourable Supreme Court discussed the expression cognizance in the following manner :