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Jharkhand High Court · body

2019 DIGILAW 1919 (JHR)

Amresh Kumar Dhiraj v. State of Jharkhand

2019-11-27

ANANDA SEN

body2019
ORDER : Heard learned counsel appearing for the petitioners, learned counsel for the State and the learned counsel for O.P. No. 2. 2. This case has been listed today under the heading for Orders on a petition being I.A. No. 6862 of 2019, praying therein to extend the period of stay, which was granted in favour of these petitioners by this Court vide order dated 08.10.2014. Now, all the parties agree for final disposal of the case, rather than to argue on the stay petition. 3. Learned counsel for the petitioners submits that the cognizance and summoning order dated 13.08.2013, passed by the Additional Chief Judicial Magistrate, Latehar in Complaint Case No. C-20 of 2013 is under challenge. He submits that the impugned order will show that the Court has not applied its mind while taking cognizance. He submits that merely in a mechanical manner, cognizance has been taken in this case and thereafter summons have been issued against these petitioners. It is argued that before issuing summons, the Magistrate is duty bound to record his satisfaction that there are sufficient materials to proceed against the accused persons and then only he should issue summons. He further submits that this is a mandate casted upon the Magistrate in terms of Section 204 of the Code of Criminal Procedure, which has been over looked by the Magistrate while issuing process under Section 204 Cr.P.C. 4. Learned counsel appearing for O.P. No. 2 submits that the cognizance was taken after going through the statements of the witnesses and the Court found that there is prima-facie case made out under Sections 147, 341, 323, 325 & 504 of the Indian Penal Code. He submits that some of the witnesses were the injured witnesses, who also sustained fracture injuries on the hands of these petitioners. Thus, according to him, the court has rightly taken cognizance against the petitioners for the offence. 5. I have gone through the records of the case and the composite cognizance order and the order issuing process. 6. An FIR was registered being Chandwa P.S. Case No. 33 of 2011 against these petitioners for allegedly committing offence punishable under Sections 147, 149, 341, 379, 325 & 427 of the Indian Penal Code. After investigation, the police submitted final form exonerating these petitioners. A protest -cum-complaint was filed by O.P. no. 2, which was registered as Complaint Case C-20 of 2013. After investigation, the police submitted final form exonerating these petitioners. A protest -cum-complaint was filed by O.P. no. 2, which was registered as Complaint Case C-20 of 2013. After inquiry, the impugned order dated 13.08.2013 was passed by the Magistrate. While I go through the impugned order, I find that it has been mentioned therein that four inquiry witnesses were examined and on perusal of their statements, the Court found that prima-facie case is made out for committing an offence punishable under Sections 147, 341, 323, 325 & 504 of the Indian Penal Code against all the five accused persons/petitioners. Thereafter, summons was issued to the accused persons. This impugned order dated 13.08.2013 is a composite order, i.e. an order taking cognizance and an order issuing summons. 7. Section 190 of the Code of Criminal Procedure provides for taking cognizance of an offence. Relevant portion of Section 190(1) of the Code of Criminal Procedure reads as follows:- “190. Cognizance of offences by Magistrates-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any magistrate of the second class specially empowered in this behalf under sub-section (2), 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.” 8. From perusal of the aforesaid provision of law, I find that a court can take cognizance under Section 190(1) (a) upon receiving a complaint of facts which constitute such offence and (b) upon a police report of such facts, and on upon information received from any person etc. 9. In this case, admittedly, the police report exonerated the petitioners. Thereafter, the informant filed a complaint-cum-protest petition, which was taken up by the Magistrate as a complaint, upon which cognizance, in this case, has been taken. Thus, the cognizance, in this case, is taken under the provisions of Section 190(1)(a) of the Code of Criminal Procedure. 10. The word “cognizance” is not defined in the Code of Criminal Procedure. In the case of “S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Others, reported in (2008) 2 SCC 492 ”, the Hon’ble Supreme Court in Para-19 has held as follows:- “19. 10. The word “cognizance” is not defined in the Code of Criminal Procedure. In the case of “S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Others, reported in (2008) 2 SCC 492 ”, the Hon’ble Supreme Court in Para-19 has held as follows:- “19. 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 cannot ‘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.” 11. Thus, the word “cognizance” means taking note of the facts, by the Magistrate, which constitute an offence. In the aforesaid judgment the Hon’ble Supreme Court has also held that taking cognizance is thus a sine qua non or condition precedent for holding a valid trial. When a cognizance order is sought to be quashed, the Hon’ble Supreme Court has held that when from bare perusal of the FIR or the complaint an offence is made out then the order taking cognizance cannot be quashed. This means that the court has to take cognizance of an offence after perusal of the FIR, police papers and charge sheet, if an offence is made out. In a complaint case, if from bare perusal of the complaint an offence is made out, the court has to take cognizance. Thus, it can be said that the court has to apply its mind and come to a conclusion that an offence is made out. If the offence is made out, he has to take cognizance of the offence. Thus, the Hon’ble Supreme Court in the case of “S.K. Sinha, Chief Enforcement Officer” (supra) has held that the cognizance is taken of an offence and not of an offender. It is settled that, cognizance is always taken against offence and not against offender. The offence herein means “any offence.” It is not limited to the penal provision mentioned in the FIR or in the complaint only. Since cognizance is taken not against the offender but against offence, it can be said that the order taking cognizance is “offence centric” and not “person centric”. The offence herein means “any offence.” It is not limited to the penal provision mentioned in the FIR or in the complaint only. Since cognizance is taken not against the offender but against offence, it can be said that the order taking cognizance is “offence centric” and not “person centric”. Against a person summons/warrants are issued, cognizance is not taken. 12. At the stage of taking cognizance it is only to be seen as to whether any offence is made out or not. At this stage the court is not to go into the merit of the case made out by the police in the charge sheet or in the complaint. Nor at this stage the success of the case is to be weighed by a detail order. The duty of the Magistrate is limited at this stage. It is clear that it is not necessary to pass a detail order giving detail reasons while taking cognizance. The order taking cognizance should only reflect application of judicial mind. If the Magistrate after going through the complaint petition and the statements of the other witnesses or after going through the FIR, case diary and charge sheet or the complaint, as the case may be comes to a conclusion that the offence is made out, he is bound to take cognizance of the offence. The order should reflect application of judicial mind to the extent that from the FIR, the case diary or complaint, offence is made out. 13. After taking cognizance the next step which the court has to take is to decide whether to issue process under Section 204 of the Code of Criminal Procedure or not. It is necessary to quote Section 204 of the Code of Criminal Procedure, which is quoted herein below:- “204. 13. After taking cognizance the next step which the court has to take is to decide whether to issue process under Section 204 of the Code of Criminal Procedure or not. It is necessary to quote Section 204 of the Code of Criminal Procedure, which is quoted herein below:- “204. Issue of process-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.’ (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87.” 14. Sub-section (1) of Section 204 provides that if in the opinion of a Magistrate, who is taking cognizance, there are sufficient ground for proceeding, then he has to issue summons or warrant in the appropriate case, as envisaged in Section 204(1)(a)(b). Two important phrase in this sub-section (1) of Section 204 is (i) “in the opinion of a Magistrate” and (ii) “there is sufficient ground for proceeding”. From the reading of the aforesaid section, it is quite clear that if there exists sufficient ground to proceed against the accused, the Magistrate has to form an opinion to that effect and proceed. Proceeding in this contest means issuing summons or warrant in term of sub-section (i)(a) or (i)(b) as the case may be. This proceeding is against a person, i.e. the accused. Proceeding in this contest means issuing summons or warrant in term of sub-section (i)(a) or (i)(b) as the case may be. This proceeding is against a person, i.e. the accused. Thus, this provision of law, i.e. Section 204 Cr.P.C. is a person centric clause, whereas Section 190 Cr.P.C., i.e. taking cognizance, as discussed above, is offence centric. 15. The question is, when can a process under Section 204 Cr.P.C be issued? It does not mean that if cognizance of an offence is taken, the Magistrate has to issue summon against all the named accused persons in the complaint or FIR. This is not what Section 204 Cr.P.C. envisages. As per the provision of Section 204 Cr.P.C. only if there is sufficient ground to proceed, then only the Magistrate has to proceed. As the proceeding is against a person/accused, the Magistrate has to form an opinion that there are sufficient materials against the accused to proceed. There may be situation when from the records it would be evident that there are no sufficient materials to proceed against some of the accused persons, though in general an offence is made out. If this would be the situation, then summons cannot be issued against all the accused, rather it should be issued only against those accused persons against whom there are sufficient materials to proceed. 16. In the case of “S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla, reported in (2005) 8 SCC 89 , the Hon’ble Supreme Court in Para-5 has held as follows:- “5. Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words “after considering” and “the Magistrate is of opinion that there is no sufficient ground for proceeding”. These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. This, in other words, means that a complaint must contain material to enable the magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words “if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground of proceeding”. The words “sufficient ground for proceeding” again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed.” 17. The Hon’ble Supreme Court in the case of “M/s GHCL Employees Stock Option Trust Vs. M/s India Infoline Limited, reported in [2013 (2) East Cr. C. 326 (SC)” has held that before issuing summons the Court has to record its satisfaction that prima-facie case is made out against the accused. According to this Court, this is the satisfaction as envisaged under Section 204 Cr.P.C. and not under Section 190 Cr.P.C. This satisfaction has to be recorded only for the purpose of issuing process. The Magistrate has to see whether there are any materials to proceed against the accused person. Consideration for taking cognizance is different than that of issuing process. One is directed towards the offence and the other is towards the person. This cannot be mixed, even if a composite order is passed. 18. As held earlier, Section 190 Cr.P.C. is offence centric where the Magistrate has only to see whether any offence is made out or not. While exercising jurisdiction under Section 190 Cr.P.C. he has not to see as to who are the persons, who have committed the offence against whom he needs to proceed. 18. As held earlier, Section 190 Cr.P.C. is offence centric where the Magistrate has only to see whether any offence is made out or not. While exercising jurisdiction under Section 190 Cr.P.C. he has not to see as to who are the persons, who have committed the offence against whom he needs to proceed. This fact, as to whether, who has committed the offence and to be proceeded against, is to be seen while exercising jurisdiction under Section 204 Cr.P.C. At this point, the Magistrate has to see whether there are materials and allegation against the person to proceed against or not. If are materials to proceed then he has to issue summons or warrant as the case may be. 19. In both the circumstances the Court has to apply his mind. In the case of “Dy. Chief Controller of Imports & Exports Vs. Roshanlal Agarwal, reported in (2003) 4 SCC 139 ”, the Hon’ble Supreme Court has held in Para-9 as follows:- “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board Vs. Mohan Meakins Ltd. and after noticing the law laid down in Kanti Bhadra Shah Vs. State of W.B., it was held as follows (SCC p. 749, para-6):- “The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The Process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.” There is no legal requirement to pass a detailed order while issuing summons. 20. In the case of “Sunil Bharti Mittal Vs. CBI, reported in (2015) 4 SCC 609 ”, the Hon’ble Supreme Court has held that an opinion to proceed further against the accused is to be stated in the order itself. 20. In the case of “Sunil Bharti Mittal Vs. CBI, reported in (2015) 4 SCC 609 ”, the Hon’ble Supreme Court has held that an opinion to proceed further against the accused is to be stated in the order itself. Further in the case of “Anil Kumar & Others Vs. M.K. Aiyappa & Another, reported in (2013) 10 SCC 705 ” at para-11 the Hon’ble Supreme Court while dealing with the scope of Section 156(3) Cr.P.C. has held that the application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though detailed reasons need not to be given. The proper satisfaction should be recorded by the Judge. 21. Further in the case of “Pepsi Food Limited and Another Vs. Special Judicial Magistrate & Others, reported in (1998) (5) SCC 749” the Hon’ble Supreme Court in para-28 has observed as follows:- “28. 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. 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 f the accused.” This proposition has also been reiterated by the Hon’ble Supreme Court in the case of “Ramdev Food Products Private Limited Vs. State of Gujarat, reported in (2015) 6 SCC 439 ”. 22. The order taking cognizance under Section 190 Cr.P.C. and order issuing process under Section 204 Cr.P.C., can very well a composite order but as observed, the application of mind would be different in both cases. This application of mind must be reflected in the order itself. The order should not be mechanical. Magistrate has to mention at least that there are sufficient materials to proceed against the persons and what are the prima-facie materials to proceed against them. He need not pass a detail judgment evaluating the materials, which are before him. The detail reasons as to why he is taking cognizance or issuing process are not to be mentioned but at least what are the bare minimum prima-facie materials against the accused-petitioners should be mentioned in the order issuing summon and prima facie what offence is alleged, in the order taking cognizance. 23. Applying the aforesaid principle, while going through this impugned order, I find that though the Magistrate has mention that there are statements of the witnesses, but what are the prima-facie materials to proceed against these petitioners and others have not been whispered. In a most mechanical manner, in one line, this impugned order has been passed summoning the accused. The Hon’ble Supreme Court in the case of “S.M.S. Pharmaceuticals Ltd.” and “Ramdev Food Products Private Limited” (supra) has held that summoning an accused is a very serious matter and has got far reaching implications on the person who has been summoned. Thus, a serious order, i.e. summoning order should not be issued casually in a mechanical manner. The Hon’ble Supreme Court in the case of “S.M.S. Pharmaceuticals Ltd.” and “Ramdev Food Products Private Limited” (supra) has held that summoning an accused is a very serious matter and has got far reaching implications on the person who has been summoned. Thus, a serious order, i.e. summoning order should not be issued casually in a mechanical manner. I find that the order taking cognizance and the summoning order, in this case, is passed in a most casual manner without recording his satisfaction and as to what are the bare minimum materials available on record. I also find that the court has taken cognizance against the accused, which is not the mandate of law. As mentioned earlier cognizance is to be taken against an offence and warrant/ summon is to be issued against accused. Further, the nature of satisfaction will also have to be different while passing both the orders. The facts, which appear before the Magistrate, have to be bifurcated by him, (i) offence centric (ii) person centric. The offence centric fact will be the basis of the order taking cognizance under Section 190 Cr.P.C. and person centric fact to be the basis of order under Section 204 Cr.P.C. 24. Thus, I have no other alternative but to set aside the impugned order dated 13.08.2013 and remit back the matter to the Magistrate for passing a fresh order under Section 190 Cr.P.C. and 204 Cr.P.C. in accordance with law. Accordingly, the impugned order dated 13.08.2013, passed by the Additional Chief Judicial Magistrate, Latehar in Complaint Case No. C-20/2013, is hereby set aside and the matter is remitted back to the Magistrate. 25. Thus, this application stands allowed. I.A. No. 5399 of 2016 In view of the final order passed in the main application, this interlocutory application has become infructuous. Accordingly, it is dismissed as such.