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2012 DIGILAW 590 (HP)

Harpreet Singh v. Kavita Chaudhary

2012-09-18

KULDIP SINGH

body2012
Judgment Kuldip Singh, Judge 1. This petition has been filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing the proceedings pending in Case No. 44-2 of 2011 before the learned Judicial Magistrate st Class, Court No. VI, Shimla. 2. It has been stated in the petition that respondent No.1 made a complaint to the Hon’ble Chief Justice which was ordered to be sent to Legal Services Authority for necessary action. The Legal Services Authority sent the complaint to learned District Judge, Shimla, who in turn, sent the complaint to learned Judicial Magistrate 1st Class, Court No.VI with a direction to take action on the complaint. The learned Magistrate took upon herself the mandate of the direction of the learned District Judge to take action on the complaint. 3. The learned Magistrate in view of the direction of the learned District Judge issued notice on 13.5.2011 to both the parties for 4.6.2011. The learned Magistrate was influenced by the direction of the learned District Judge. The learned Magistrate in the order dated 13.5.2011 has noticed that the case has been compromised by way of decree between the parties on 26.3.2011. 4. On 4.6.2011 the respondent No.1 cleverly examined herself as CW-1 and Gurinder Singh as CW-2. On 4.6.2011 learned Magistrate directed Vijayant and Gurpreet to file written complaint before next date of hearing on 15.6.2011. The learned Magistrate also observed that the complaint of Kavita Chaudhary is already on record. On 15.6.2011 one Ajay Sharma tendered in evidence his affidavit Ex. CW-3 in preliminary evidence. On 15.6.2011, the learned Magistrate fixed the case for consideration of charge. 5. On 4.7.2011 the learned Magistrate observed that there are sufficient grounds to issue process against the accused persons and summoned them for 5.8.2011. It has been stated that the learned Magistrate has conducted the proceedings in illegal manner and grossly abused the process of the Court. 6. Heard and perused the record. The learned counsel for the petitioner has submitted that unknown procedure has been adopted by the learned Magistrate, who took the direction of learned District Judge while sending the complaint to her as mandate to proceed against the petitioners. In the complaint, there is no specific prayer to proceed against the petitioners for specific offence. Heard and perused the record. The learned counsel for the petitioner has submitted that unknown procedure has been adopted by the learned Magistrate, who took the direction of learned District Judge while sending the complaint to her as mandate to proceed against the petitioners. In the complaint, there is no specific prayer to proceed against the petitioners for specific offence. The respondent No.1/complainant has not filed any list of witnesses with the complaint but cleverly got examined herself as CW-1 and another witness as CW-2. She also placed on record the affidavit Ex.CW-3 of one Ajay Sharma in preliminary evidence. The order dated 4.7.2011 does not indicate application of judicial mind. It is not clear from the said order the learned Magistrate has taken the cognizance of what offence for proceeding against the petitioners. He has submitted for quashing of the proceedings. 7. The learned counsel appearing on behalf of respondent No.1 has submitted that the complaint addressed by respondent No.1 to Hon’ble the Chief Justice ultimately came to the learned Magistrate, who has taken cognizance of the offence. The complainant should not suffer for the mistake if any committed by the learned Magistrate while conducting the proceedings. On the basis of the complaint and the preliminary evidence, the learned Magistrate has rightly issued process against the petitioners and others. The petitioners will get full opportunity to defend themselves in the trial. He has submitted that no case for interference has been made out. 8. The order dated 13.5.2011 of the learned Magistrate reveals that she received letter from the learned District Judge, Shimla alongwith complaint filed by the complainant to Hon’ble the Chief Justice. She has observed that as per order dated 26.3.2011 the case has already been decreed on the basis of the compromise. She has further observed that in view of the direction of the learned District Judge notice be issued to both the parties for 4.6.2011. On 4.6.2011 the learned Magistrate has recorded the presence of Vijayant, Kavita and Gurpreet. She has further observed that Vijayant and Gurpreet are directed to file written complaint before the next date. The complaint of Smt. Kavita is already on record. On 15.6.2011 statement of CW-3 Ajay Sharma by way of affidavit as Ex.CW-3 was taken on record. The case was fixed for consideration of pre-charge evidence on 4.7.2011. She has further observed that Vijayant and Gurpreet are directed to file written complaint before the next date. The complaint of Smt. Kavita is already on record. On 15.6.2011 statement of CW-3 Ajay Sharma by way of affidavit as Ex.CW-3 was taken on record. The case was fixed for consideration of pre-charge evidence on 4.7.2011. The learned Magistrate on 4.7.2011 found sufficient reasons to issue process against the accused persons and summoned them for 5.8.2011. 9. Ex.CW-1/K is the complaint dated 27.4.2011 of the complainant Kavita Chaudhary addressed to Hon’ble the Chief Justice. There is no list of witnesses alongwith the complaint. The record shows that the statements of CW-1 Smt. Kavita Chaudhary and CW-2 Gurinder Singh Mann were recorded on 4.6.2011 but in the zimni order dated 4.6.2011, it has not been stated that the statements of CW-1 Kavita Chaudhary and CW-2 Gurinder Singh Mann were recorded on 4.6.2011. 10. The Section 190 of the Code provides that subject to the provisions of Chapter XIV, any Magistrate of the first class, and any Magistrate of the second class specially empowered, may take cognizance of any offence – (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c ) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 11. The Section 200 of the Code provides a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. The Section 204 (2) of the Code provides that no summon or warrant shall be issued against accused under sub-section (1) until a list of the prosecution witnesses has been filed. 12. In the present case the complaint Ex.CW-1/K came before the Magistrate. In the order dated 13.5.2011 the learned Magistrate has observed that the learned District Judge has directed to take action on the complaint of the complainant. The word direction in the order dated 13.5.2011 cannot be over stretched. It does not mean that the learned Magistrate was required to proceed against the petitioners on the basis of complaint Ex.CW-1/K in any eventuality even though no case is made out. The word direction in the order dated 13.5.2011 cannot be over stretched. It does not mean that the learned Magistrate was required to proceed against the petitioners on the basis of complaint Ex.CW-1/K in any eventuality even though no case is made out. The meaning of direction was simple that the complaint is to be proceeded in accordance with law. 13. On 13.5.2011 the complaint was first time taken up by the learned Magistrate, none appeared in the complaint. The Magistrate instead of issuing notice to the complainant, ordered notice to the other side also. The order dated 13.5.2011 indicates that the notice to the other side was issued in routine without realising that the Magistrate was dealing with criminal complaint. 14. On 4.6.2011 Vijayant, Kavita and Gurpreet appeared in person. The Magistrate directed Vijayant and Gurpreet to file written complaint. The direction of the learned Magistrate to Vijayant and Gurpreet to file written complaint is without any mandate of law. In the criminal complaint, Vijayant and Gurpreet were not required to file written complaint. The memo of parties in the Court below does not show that Vijayant and Gurpreet are parties in the complaint. 15. In M/s Gopi Nath and sons vs. State of Himachal Pradesh and another ILR 1980 (HP), 678, it has been held that strictly speaking it is no requirement of Section 204 that an order directing issue of process against the accused be supported by detailed reasons, nonetheless this order has to be made by the Magistrate after applying his judicial mind to the material on record and this application of mind must be exhibited in the order itself in one way or the other. An order passed by the Magistrate without application of such mind would be without jurisdiction and liable to be quashed. 16. In K.Venkataramaiah and others vs. Katterao S. Deshpande 2008 Cri. L.J. 1547, it has been held that Section 200 of Cr.P.C. does not contemplate acceptance of affidavit in the form of sworn statement nor affidavit partakes the character of sworn statement as required under Section 200, Cr.P.C. The filing of an affidavit by the complainant in support of his complaint would be contrary to the procedure under Section 200 of Cr.P.C. and it is inadmissible. 17. 17. The learned counsel for the petitioner has submitted that summoning of an accused in a criminal case is a serious matter and the accused should not be summoned in routine. In Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others (1998) 5 SCC 749 it has been held as follows:- “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 succed 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 question 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.” 18. In State of Karnataka vs. J. Chanabasappa and another 1986 (2) Crimes 665 , it has been held that before issuing process to the accused the Court taking cognizance of the offence will have to make itself clear, not merely from the charge-sheet but also from the papers placed along with the charge-sheet, to answer what offences the court was requiring the presence of the accused. It has also been held that the papers of the Court below does not show that the Special Judge had applied his mind to this aspect of the case at all. He appears to have dealt with this matter in a very casual manner. 19. The learned counsel for respondent No.1 has submitted that the High Court in exercise of its revisional powers will not interfere with the summoning order of the Magistrate only because it forms a different opinion. He appears to have dealt with this matter in a very casual manner. 19. The learned counsel for respondent No.1 has submitted that the High Court in exercise of its revisional powers will not interfere with the summoning order of the Magistrate only because it forms a different opinion. He has relied Nupur Talwar vs. Central Bureau of Investigation and another AIR 2012 SC 1921 where it has been held sub-section (1) of Section 204 Cr.P.C. provides that the Magistrate shall issue the process (summons or warrant) if in his opinion there was sufficient ground for proceeding and therefore so long as there are materials to support the opinion of the Magistrate that there was sufficient ground for proceeding against the persons to whom the processes have been issued, the High Court in exercise of its revisional power will not interfere with the same only because it forms a different opinion on the same materials. 20. In Padal Venkatarama Reddy alias Ramu vs. Kovvuri Satyanarayana Reddy and others (2011) 12 SCC 437, it has been held that the superior courts have been given inherent powers to prevent the abuse of the process of court; where the Court finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher than the end of merely following the law. It is not necessary for the Court to hold a full-fledged inquiry or to appreciate the evidence collected by the investigating agency to find out whether the case would end in conviction or acquittal. 21. The learned counsel for respondent No.1 has also relied State of Andhra Pradesh vs. Gourishetty Mahesh and others (2010) 11 SCC 226 wherein it has been held: ”While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. That is the function of the trial Judge/Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.” 22. No doubt, at the time of issuing process under Section 204 detailed reasons are not required but there must be indication from the order application of judicial mind. In Bhushan Kumar and another vs. State (NCT of Delhi) and another AIR 2012 SC 1747 , it has been held that under Section 190 of the Code it is application of judicial mind to the averments in the complaint that constitutes cognizance. 23. In the present case, in the complaint Ex.CW-1/K it has not been stated as to for what offence the action may be taken against the accused. In the end of the complaint request has been made to provide necessary protection to the complainant so that she may not be dispossessed from the accommodation in question and not implicated in any kind of litigation by Harpreet Singh and his associates. 24. The order dated 4.7.2011 also nowhere indicates the application of judicial mind to the complaint and preliminary evidence as to for committing what offence the cognizance has been taken and the petitioners have been summoned. This shows that the learned Magistrate has not applied her judicial mind before taking cognizance and issued process to the petitioners. The learned Magistrate even did not direct the complainant to supply the list of witnesses in support of the complaint. 25. There is no force in the contention of the learned counsel for the respondent No.1 that the party should not suffer for the mistake of the Court. In the present case the learned Magistrate did not apply judicial mind and issued process to the petitioners, who were not told the offences to be defended by them and the accused cannot be expected to defend the prosecution without knowing the offence. Thus seen from any angle, the order dated 4.7.2011 taking cognizance and issuing process against the petitioners is not sustainable. 26. Thus seen from any angle, the order dated 4.7.2011 taking cognizance and issuing process against the petitioners is not sustainable. 26. In view of above, the petition is allowed, the order dated 4.7.2011 taking cognizance and issuing process against the petitioners is quashed. Cr.MP No.314 of 2012 disposed of in view of disposal of main petition. The record of the trial Court be sent back immediately.