Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1216 (JHR)

Manoj Kumar Thakur v. State of Jharkhand

2009-09-01

R.R.PRASAD

body2009
JUDGMENT : This writ petition is directed against the order dated 30.1.2009 passed by the learned Magistrate, 1st Class, Palamau in Complaint Case No.741 of 2008 whereby process has been issued against the petitioner in terms of Section 204 of the Code of Criminal Procedure. The complainant Akhilesh Kumar Choudhary filed a complaint before the court of Chief Judicial Magistrate, Palamau, Medninagar against the petitioner and Ghansheyam Lal putting allegation that petitioner was imparted with fisheries training by the District Fisheries Department, Palamau from 13.3.2006 to 22.3.2006 whereby he was to be paid Rs.1100/-but this petitioner in connivance with others in stead of paying the said money to him and others, misappropriated it and thereby they committed offence under sections 408, 409, 420, 467, 468, 471 and 120(B) of the Indian Penal Code. The learned Chief Judicial Magistrate, Palamau, on receiving the complaint sent the matter on exercise of the power under section 192 of the Code of Criminal Procedure for enquiry and disposal of the case before the leaned Judicial Magistrate, who on examining the complainant on solemn affirmation fixed the matter for enquiry during which three witnesses, namely,Raj Kishor Chaudhary, Santosh Chaudhary and Shankar Chaudhary were examined. Thereupon the court, vide its order dated 30.1.2009 did hold that there have been sufficient materials to proceed against both the accused for the offence under sections 409, 465, 466, 467 and 120(B) of the Indian Penal Code. Accordingly, summons were issued calling upon them to face trial. Learned counsel appearing for the petitioner submitted that though the complainant in his statement made on solemn affirmation has stated that he received fisheries training imparted by the District Fisheries Department but was not given Rs.1100/-he himself has admitted in answering the court questions that he does not have any proof of receiving any training nor does have any proof of being admitted in the said training course. Similarly, witnesses have also stated that they received training still they were not paid money but they in answering the court questions were admitted that they are not aware as to whether the complainant got himself registered or not for receiving training. Similarly, witnesses have also stated that they received training still they were not paid money but they in answering the court questions were admitted that they are not aware as to whether the complainant got himself registered or not for receiving training. Other witness, namely, Santosh Chaudhary has also admitted that neither he put his signature on the attendance register nor he had filled up any form and thus, these disclosures made by the complainant and the witnesses clearly indicate that without there being any materials/proof of receiving training, they claimed Rs.1100/-and as such, there was absolutely no material to proceed with the case still the court below found prima facie case against the petitioner which is quite illegal. Hence, the order under which process was issued is fit to be set aside. Learned counsel further submitted that the complainant has filed this case at the instance of Raj Kishore Prasad as well as Santosh Chaudhary and Shankar Chaudhary, who supported the case during enquiry as Santosh Chaudhary and Shankar Chaudhary on the basis of forged certificate had put forth the claim of Rs.1100/-but when it was detected that the certificates were forged, the certificate of training granted to them was cancelled which would be evident from Annexure 4 and as such, the complaint petition is certainly tainted with mala fide and on this ground also the impugned order is fit to be set aside. Lastly it was submitted that very initiation of the case is bad as learned Chief Judicial Magistrate on receiving complaint, transferred the case under section 192 of the Code of Criminal Procedure to the court of Magistrate for enquiry without taking cognizance and as such, the said order is bad in view of the decision rendered in a case of Dilip Kumar Kundu and others vs. Madan Ch. Dey and another [1992(1) PLJR 484]. Under the scheme of Code of Criminal Procedure, the Enquiry Officer to whom the Chief Judicial Magistrate forwards the complaint for enquiry has to satisfy himself before putting the accused to trial that there exists prima facie case as summoning of an accused in a criminal case does have serious consequence and that apart some times it becomes an instrument for oppression or needless harassment and therefore, only when the Magistrate is satisfied that sufficient ground exists, he should proceed with the matter by issuing process. Keeping in view the frequent misuse of the provision, the Hon’ble Supreme Court in a case of Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others [ (1998) 5 SCC 749 ] has been pleased to give guidelines about the manner in which the Magistrate is supposed to act in terms of Section 204 of the Code of Criminal Procedure in putting an observation which reads as under: “ 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. 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. The Magistrate has to carefully scrutinize the evidence brought 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. “ Thus, the Magistrate is required to examine the nature of allegation in the complaint and evidence both oral and documentary for coming to the conclusion as to whether there has been sufficient material for summoning the accused and the order summoning accused must reflect that he has applied his mind on the facts of the case. Here in the instant case, I do find that though the complainant and the witnesses put allegation of not making payment of Rs.1100/-in spite of receiving training by the complainant and other witnesses but the complainant has categorically admitted, when the question was put by the court, that he does not have any proof of receiving training nor does have any proof of being admitted in the training course. The witnesses have also stated those facts about the absence of any proof of receiving training by the complainant or by them and under this situation, it cannot be said that there had been sufficient materials to summon the petitioner to face trial but still the learned Magistrate has summoned the accused under the impugned order which is an outcome of non-application of mind and hence, the impugned order certainly suffers from illegality. Hence, it is set aside so far it relates to the petitioner. Accordingly, this application is allowed. Since the order has been found to be illegal on the ground as stated above, I do not propose to go to the other points on which impugned order has been sought to be quashed.