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2021 DIGILAW 360 (JHR)

Sanjay Kumar v. State of Jharkhand

2021-04-07

SANJAY KUMAR DWIVEDI

body2021
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. On repeated calls, nobody appeared on behalf of the O.P. No. 2. 2. Heard Mr. A.K. Kashyap, learned counsel for the petitioners and Mrs. Niki Sinha, learned counsel for the State. 3. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 4. The present petition has been filed for quashing of order dated 21.04.2011 passed in G.R. No. 2338 of 2010 arising out of Haidarnagar P.S. Case No. 79 of 2010 whereby cognizance has been taken under sections 304-B/34 of the Indian Penal Code against the petitioner, pending in the Court of learned C.J.M. Palamau at Daltonganj. 5. Mr. A.K. Kashyap, learned senior counsel for the petitioners submits that full fledged enquiry was made by the police and after enquiry, final form was submitted in which no offence with regard to the petitioners has been found. He submits that charge-sheet has been submitted only against the husband of the deceased. He submits that on the protest petition, court below took cognizance against the petitioners who are brothers of the husband of the deceased. He submits that final form has already been submitted and in cryptic manner, court below took cognizance against the petitioners without appreciating as to how petitioners are involved in a case registered under section 304-B of the I.P.C. 6. Mrs. Niki Sinha, learned counsel appearing on behalf of the State fairly submits that final form has been submitted in favour of the petitioners and the court below has not appreciated this aspect of the matter how these petitioners are involved in the said crime. 7. From perusal of impugned order dated 21.04.2011, whereby cognizance under section 304-B/34 of the I.P.C. has been taken against the petitioners, it transpires that there is no reason assigned as to why court below has differed with the final form. It is well-settled provision of law that for issuing process, court is required to apply his mind. 8. In S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, (2005) 8 SCC 89 , the Hon’ble Supreme Court in Para-5 has held as under:- “5. It is well-settled provision of law that for issuing process, court is required to apply his mind. 8. In S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, (2005) 8 SCC 89 , the Hon’ble Supreme Court in Para-5 has held as under:- “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. 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.” 9. In M/s GHCL Employees Stock Option Trust vs. M/s India Infoline Limited, (2013) 2 East Cr. C. 326 (SC), the Hon’ble Supreme Court has held that before issuing summons the Court has to record its satisfaction that prima-facie case is made out against the accused. 10. In both the circumstances, the Court has to apply his mind. In the case of Dy. C. 326 (SC), the Hon’ble Supreme Court has held that before issuing summons the Court has to record its satisfaction that prima-facie case is made out against the accused. 10. In both the circumstances, the Court has to apply his mind. In the case of Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal, (2003) 4 SCC 139 , the Hon’ble Supreme Court in Para-9 has held as under:- “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 West Bengal, 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.” 11. There is requirement of opinion to proceed further against the accused which requires to be reflected in the order itself. In the case of Pepsi Food Limited and Another vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749 , the Hon’ble Supreme Court has held that to set criminal proceeding on motion is serious matter which requires to be looked into minutely. 12. In view of the aforesaid facts and considering the well-settled provisions of law, impugned order so far as the petitioners are concerned, cannot be sustained in the eye of law. 13. Accordingly, impugned order dated 21.04.2011 passed in G.R. No. 2338 of 2010 arising out of Haidarnagar P.S. Case No. 79 of 2010 pending in the Court of learned C.J.M. Palamau at Daltonganj, so far as petitioners are concerned, is quashed. 14. Cr. M.P. No. 900 of 2011 stands allowed and disposed of.