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2015 DIGILAW 183 (JHR)

Nawal Kishore Prasad v. State of Jharkhand

2015-02-05

RONGON MUKHOPADHYAY

body2015
ORDER :- Heard Mr. Mahesh Kumar Sinha, learned counsel for the petitioners and Mr. Mahesh Kumar Sinha, learned counsel for O.P. No. 2. 2. In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with PCR Case No.2/2010 (T.R. No. 1463 of 2011) including the order dated 01.02.2011, passed by learned Judicial Magistrate, Madhupur at Deoghar, whereby and whereunder cognizance has been taken for the offences punishable under sections 323, 341 and 379 of the Indian Penal Code. 3. It appears that a complaint petition was instituted by the complainant-opposite party no.2 on 20.12.2009, in which it was alleged that the complainant-opposite party no.2 along with his three sons were proceeding on his vehicle from his village-Udnabad to Madhupur to give Rs.40,000/- to his Samdhi and as soon as they reached near Jagdishpur, the accused persons over took them and restrained the complainant along with his sons and assaulted them by fists and slaps. It has further been alleged that accused persons snatched a golden necklace as also a hand bag, in which Rs.40,000/- was kept and they compelled the complainant to sit in their car and took him away in order to commit murder but fortunately the complainant managed to escape. It has also been alleged in the complaint petition that the case has been filed by the complainant against one of the accused Anup Sinha along with his associates 27 years back. 4. After the complaint case was instituted, an enquiry was conducted by the learned Judicial Magistrate, Deoghar by examining the complainant on solemn affirmation as well as his witnesses and ultimately vide order dated 1.2.2011, cognizance was taken for the offences punishable under sections 323, 341 and 379 of the Indian Penal Code. 5. It has been submitted by learned counsel for the petitioners that several cases have been instituted by the complainant-O.P. No.2 against the petitioners and their family members and on one pretext or the other, the complainant is in the habit of instituting criminal cases. This, according to learned counsel for the petitioners, is a case of malicious prosecution and in such view of the matter, the entire criminal proceedings are liable to be quashed. 6. This, according to learned counsel for the petitioners, is a case of malicious prosecution and in such view of the matter, the entire criminal proceedings are liable to be quashed. 6. Learned counsel for the petitioners has highlighted the cases, which have been filed against the petitioners in the complaint petition itself, which includes both criminal cases as well as disciplinary inquiry before the Bar Council of Jharkhand in view of the fact that the petitioner no.2 is a practicing advocate in district court, Giridih. Learned counsel for the petitioners has further submitted that tired of facing so many cases, the petitioner nos.2 and 3 had represented before this Court and before several other authorities about torture and harassment meted out by the opposite party no.2 to the petitioners and their family members. 7. Learned counsel for opposite party no.2, on the other hand, has submitted that although admittedly several cases are pending between both the sides but the same does not mean that the present complaint case is false and frivolous and is a vexatious litigation. He has further submitted that the complaint petition itself reveals about the specific allegations against the petitioners made out by the complainant and the learned Judicial Magistrate, Madhupur at Deoghar having been satisfied that sufficient ground exists to proceed in the matter had rightly taken cognizance and no interference is warranted in the facts and circumstances of the case. 8. After hearing learned counsel for the parties and after going through the records, I find that after the complaint petition was instituted and after an inquiry was conducted vide order dated 1.2.2011, cognizance was taken by learned Judicial Magistrate, Madhupur at Deoghar for the offences punishable under sections 323, 341 and 379 of the Indian penal Code. In view of the order, which has been passed by the learned Judicial Magistrate, Madhupur at Deoghar dated 1.2.2011, it would be necessary to refer to the judgment of the Hon’ble Supreme Court, reported in 2008 2 SCC 492 Chief Enforcement Officer Vs. Videocon International Ltd.. “The expression ‘cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ‘become aware of and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. Videocon International Ltd.. “The expression ‘cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ‘become aware of and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. ‘Taking cognizance’ does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.’ 9. The correctness of the order, whereby the cognizance of the offence has been taken by learned Magistrate unless it is perverse or based on no material should be sparingly interfered with. However, it is to be seen as to whether the learned Magistrate has applied his judicial mind while taking cognizance for the offences alleged. The relevant portion of the order dated 1.2.2011 is quoted hereunder:- “From perusal of complaint petition, statement of complainant on S.A. as well as statement of all the inquiry witnesses, it appears that there have been several cases between the parties and all the inquiry witnesses in this case are the sons of complainant and I also find that there are so many contradiction in their statement regarding the manner of occurrence, however on careful perusal of complaint petition, statement of complainant on S.A. and the statement of all the inquiry witnesses I find a prima facie case made out for the offences u/s 323, 341& 379 of the I.P.C. against all the accused persons as named in complaint petition.” 10. The aforesaid order reveals in the first part that learned Magistrate was not satisfied that sufficient grounds existed for taking cognizance in the matter because he has clearly disclosed that apart from the fact that there are several cases between the parties, the inquiry witnesses were also the sons of the complainant and that there were contradictions in the statements regarding the manner of occurrence. However, in the second part of the said order, the learned Magistrate finds sufficient ground to proceed in the matter by being prima facie satisfied that a case has been made out for the offences punishable under sections 323, 341 and 379 of the Indian Penal Code. This in my view indicates non application of mind on the part of the learned Judicial Magistrate, Madhupur at Deoghar. In such circumstances, since the order dated 1.2.2011, passed by learned Judicial Magistrate, Madhupur at Deoghar is self contradictory, the same cannot be allowed to be sustained. 11. Accordingly, the order dated 1.2.2011, passed by learned Judicial Magistrate, Madhupur at Deoghar in PCR Case No. 02 of 2010, T.R. No. 1463 of 2011 is hereby quashed and set aside and the matter is remanded back to the concerned court below for passing a fresh order in accordance with law. 12. This application is allowed and disposed of.