Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1330 (PAT)

Sanjeev Kumar Sinha v. State Of Bihar

2007-08-10

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. The Petitioner who is the Branch Manager of National Insurance Company, Gaya, has preferred this application for quashing of the order dated 17.2.2006 passed in Complaint Case No. 1352 of 2005 by which Sri Om Sagar, Judicial Magistrate, 1st Class, Gaya, has taken cognizance against the Petitioner for commission of offences punishable under Sections 323, 379 and 504 I.P.C. at the instance of the O.P. No. 2 herein. 2. Mukesh Kumar filed the aforesaid complaint, inter alia, alleging that he is owner of a Hero Honda Passion motorcycle bearing Registration No. BR-2D-1365, which was insured with the National Insurance CompanyGaya Branch (hereinafter referred to as "the Company") and that on 19.7.2003 the aforesaid motorcycle was snatched by some miscreants for which Warsaliganj P.S. Case No. 96 of 2002 was registered and for which a written report was submitted to the Branch Manager of the Company on 21.9.2003. It is further stated that the final form was submitted by the police in the Warsaliganj Case on 5.4.2005 which was accepted by the Chief Judicial Magistrate, Gaya. It is further alleged that the Surveyor assessed loss of the complainant di;c to the theft of Rs. 40,755/- but the petitioner, notwithstanding the complainant having fiied all relevant papers demanded a sum of Rs. 7000/- in advance for settlement of the claim failing which the claim application would be rejected on one pretext or the other. It is further alleged that the complainant visited the office of the petitioner several times and requested for payment but on each occasion his request was turned down for nonfulfillment of the illegal demand. It is said that when on 4.10.2005 at about 11 A.M. the complainant went to the office of the petitioner alongwith Narendra Kumar and requested for justice and settlement of the claim, the accused became furious and began to abuse him in filthy language, assaulted him with fists and slaps, forcibly took away Rs. 4000/- from his pocket and eventually pushed him out of the office. It is further alleged that the complainant went to the Civil Lines Police Station and narrated the entire incidence but the police advised the complainant to file a case in the Court. It has also been alleged that the accused had created some forged documents and had cheated the complainant in the claim matter. 3. It is further alleged that the complainant went to the Civil Lines Police Station and narrated the entire incidence but the police advised the complainant to file a case in the Court. It has also been alleged that the accused had created some forged documents and had cheated the complainant in the claim matter. 3. It has been submitted on behalf of the petitioner that although the complaint had been lodged by the complainant for the theft of his motorcycle, since the amount was more than Rs. 20,000/-, in view of Section 64UM of the insurance Act, 1939, and the claim had been inspected and surveyed by an independent Surveyor licensed by the Insurance Regulatory and Development Authority wherein it was found that at the time of the incident the person driving the insured vehicle was not having a driving licence and the driving licence produced by him was found to be fake and fabricated his claim could not be allowed. It has also been submitted that the claim was beyond the financial jurisdiction of the petitioner and as such he had referred the claim of the complainant to the Divisional Office for settlement and investigation of the claim and as such the petitioner had no role in rejecting the claim of the complainant. It has also been submitted that on receiving the intimation from the competent authority at the divisional office that the claim had been repudiated the petitioner informed the complainant by letter dated 22.8.2005 the reasons for such repudiation. 4. The order of cognizance was also sought to be assailed on the ground that the complaint case had been filed nearly two months after the repudiation of his claim so as to build pressure on the petitioner as well as the higher officials of the Company for settlement of the claim. It has also been submitted that the entire prosecution story is false, fabricated, concocted and as such they are denied as in view of what has been stated above the petitioner had no role to play in the rejection of the claim of the complainant. Finally it was submitted that the petitioner being an official in a Nationalized Insurance Company would be deemed to be a public servant for the purposes of Chapter IX of the Penal Code and as such no action could be taken against them without obtaining necessary sanction. 5. Finally it was submitted that the petitioner being an official in a Nationalized Insurance Company would be deemed to be a public servant for the purposes of Chapter IX of the Penal Code and as such no action could be taken against them without obtaining necessary sanction. 5. On the other hand it was sought to be submitted on behalf of the complainant-O.P. No. 2 that the learned Magistrate had rightly taken cognizance in the matter after consideration of the complaint and examination of the witnesses produced by the complainant- O.P. No. 2 at the inquiry under Sec. 202 Cr.P.C. It was also submitted that at the inquiry the Magistrate was only required to see whether a prima facie case was made out and nothing else was required by the Magistrate to proceed with the trial. 6. It will appear from the counter affida- vit of the complainant- O.P. No. 2 that he has not denied the submission of the learned counsel for the petitioner that the petitioner had no jurisdiction to entertain a claim above Rs. 20,000/- and that it was to be processed by the Divisional Office. He has also not denied the fact that the complaint case was filed two months after the repudiation of the claim as also the allegation of driver of the vehicle not being possessed of a proper driving license. 7. It is strange that when the complainant was well aware of the fact that his claim ras to be processed by the Divisional Office fie reasons for his repeated visits to the office of the petitioner is hard to digest. The Apex Court in the case of M/s Pepsi Food Ltd. vs. The Special Judicial Magistrate (AIR 1998 SC 128) has observed: "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. 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. Magistrate has to carefully scrutinize the evidence right 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." 8. From perusal of the order impugned it will appear that the learned Magistrate had not applied his judicial mind and has passed the order mechanically. 9. There is another aspect of the matter. As held in the cases of Ch. Veeraraghavaiah vs. State of Bihar and Another, reported in 1998(3) PUR 360, and in the case of Gaur Sarkar vs. State, reported in 2001 (3) PLJR 475 , after the nationalization of the Insurance Company under the policy decision as contemplated under the General Insurance Business (Nationalization) Act, under Sec. 31 every officer or other employee of the Corporation or of an acquiring Company shall be deemed to be a public servant for the purposes of Chapter IX of the Penal Code. The complainant has not denied that the petitioner holds a responsible post with the National Insurance Company and as per the Insurance Act and the Nationalization Act itself he is construed to be a public servant and when such a person is sought to be prosecuted sanction for such prosecution as required under Sec. 197 Cr.P.C. is a condition precedent. In the instant case no sanction has been obtained. Therefore, the cognizance is bad and without jurisdiction. 10. For the reasons stated above, the order taking cognizance cannot be sustained in. law. The same is quashed and the application is allowed.