Delhi High Court Enunciates Principles To Be Followed By Magistrates While Taking Cognizance Of Offences, Says Can’t Be A Routine Exercise

The Delhi High Court has recently enunciated various principles to be followed by Magistrates while taking cognizance of offences, observing that the process cannot be a routine exercise.

“If there is such an order taking cognizance then the same would be perfunctory and not reflective of the Magistrate having applied his/her mind. The Magistrate cannot be mechanical in his approach. More so, whence at the end of the day, the Magistrate is setting into motion the judicial machinery against the alleged accused person as it inevitably involves their personal liberty and freedom,” Justice Saurabh Banerjee said.

The court observed that a Magistrate must necessarily exercise due care and caution in such cases while taking all the relevant factors of the matter into consideration.

“However, it in no way means that the Magistrate has to give detailed reasons while taking cognizance, as the Magistrate, while taking cognizance, has to only ensure that he/she does not pass a blanket order without expressing his/her opinion or judicial mind,” the court said.

Furthermore, Justice Banerjee said that at the time of taking cognizance, a Magistrate is required to judicially apply his or her mind and be satisfied on the basis of the facts borne out from the complaint or from the report of the IO or the surrounding facts and circumstances, “based the prima facie documents and materials in existence or the contents of the FIR.”

The court added that the Magistrate is to be aware of the situation as it is at the time of taking cognizance because what is before him or her are mere allegations which are nothing but a bundle of facts made by a complainant at the preliminary stage which are yet to be tested.

“The order passed by the Magistrate taking cognizance has to be a speaking one justifying the steps taken by him/her which convinced him/her to take cognizance. Such order has to be expressive and reflective of the bare minimum reasons. The order taking such cognizance ought to reflect that the Magistrate is indeed aware of and has knowledge of the facts involved. The said order should sound convincing,” the court said.

The court made the observations while staying the criminal proceedings against a husband in an FIR registered by the wife under Sections 377, 498A, 406, 506 and 34 of the Indian Penal Code, 1860. The application seeking stay on the proceedings was filed in his petition seeking quashing of the Delhi Police’s chargesheet.

The case was registered in 2021 after certain matrimonial disputes arose between the husband and wife. After the husband filed a divorce petition before the Family Court in Bangalore, the wife filed the FIR in Delhi as a counterblast.

The trial court took cognizance of the chargesheet and passed a short order stating that “There is sufficient material available on record to proceed further against accused persons. Hence, I take cognizance of the alleged offences against accused.”

While allowing the application, the court observed that trial court order taking cognizance of the chargesheet was very casual, mechanical and contained no semblance of reasoning which prima facie reflected that it was done in a “perfunctory manner”. Justice Banerjee said that the conduct was far from what was required from a Magistrate.

Advocates Alok Bhachawat, S. Jeev Mandan and Saloni Jagga appeared for the petitioner.

APP Sunil Kumar Gautam appeared for the State.

Case Title: VIKAS THAKUR v. STATE OF NCT OF DELHI

Citation: 2023 LiveLaw (Del) 864