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2021 DIGILAW 374 (JK)

Ajay Singh v. Kuldeep Singh

2021-07-28

RAJNESH OSWAL

body2021
ORDER : Rajnesh Oswal, J.-By the medium of this petition, the petitioner has questioned the order dated 18.08.2015 passed by the court of learned Judicial Magistrate (1st Class) Bishnah (hereinafter referred to as the trial Court), by virtue of which the learned trial court has dismissed the complaint, titled, Ajay Singh vs. Kuldeep Singh and others. The present petition has been filed on the following grounds: (i) That the impugned order dated 18.08.2015 is ex-facie illegal as once the court has taken cognizance and issued the process against the accused, it was not within the domain of the trial court to review its own order. (ii) That the trial court has committed patent illegality while dismissing the complaint by taking recourse to the provisions of section 204 (1-A) of Cr.P.C. on the premises that no list of witnesses is appended with the complaint, when the learned Magistrate had already taken cognizance and issued process under section 204 of Cr.P.C. (iii) That the order impugned is against the law as breach of provisions of section 204 (1A) Cr.P.Cis not the defect that shall vitiate the issuance of process or jurisdiction of the Court. 2. Mr. Sanveer Thakur, learned counsel for the petitioner has vehemently submitted that once the court had taken cognizance and issued the process against the respondents, it was not open for the trial court to review its own order. He has further submitted that the provisions of section 204 (1A) Cr.P.C are not mandatory and this is a curable defect. 3. Per contra, Mr. R. P. Sharma, learned counsel for the respondents argued that that the order impugned is valid as the complainant was under legal obligation to file the list of witnesses along with the complaint. 4. Heard and perused the record. 5. A perusal of the record reveals that the complaint for commission of offence under sections 447, 379, 427, 506/34 RPC was filed by the petitioner against the respondents and the learned Magistrate after examining the petitioner as a witness, issued the notice to the respondents vide order dated 27.04.2015. Thereafter, the respondents caused their appearance before the trial court on 07.07.2015.Thetrial court vide order dated 18.08.2015 dismissed the said complaint. The orders dated 27.04.2015 and order dated 18.08.2015 are reproduced as under respectively: Order dated 27.04.2015 “The application has been presented today by the learned counsel for the applicant in presence of the applicant. Thereafter, the respondents caused their appearance before the trial court on 07.07.2015.Thetrial court vide order dated 18.08.2015 dismissed the said complaint. The orders dated 27.04.2015 and order dated 18.08.2015 are reproduced as under respectively: Order dated 27.04.2015 “The application has been presented today by the learned counsel for the applicant in presence of the applicant. The same be registered in the concerned register. The statement of the applicant recorded. Be made part of the file. Advocate, Mulk Raj filed vakalatnama on behalf of the applicant. Be made part of the file. Office is directed to issue notice to the non-applicants. List on 11.05.2015.” Order Dated 07.07.2015 “Complainant is present alongwith counsel. After perusal of the complaint, it reveals that the complainant has not cited any witnesses. In the complaint, even the preliminary statements of the witnesses have not been recorded. That inadvertently, the court issued the process. So accordingly to section 204 Cr.P.C. list of prosecution witnesses has to be filed. In the instant complaint no list has been filed by the complainant, so the present complaint is dismissed. File be consigned to records after its due completion.” 6. It is settled law that once the Magistrate has taken the cognizance and issued the process, the Magistrate, then Magistrate has no power to review its own order under Criminal Procedure Code. Reliance is placed upon the judgment of the Apex Court in case of Adalat Prasad vs. Roop Lal Jindal and ors, 2004 (7) SCC 338 . Paragraph 16 of the said judgment is reproduced as under: “16. It is true if the magistrate take cognizance of an offence, issue process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of section-200 and 202, the order of the magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section-203 of the code, because the criminal procedure code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal court, the remedy lies in invoking setion-482 (561A) of Code. 7. So, once the trial Court had issued the process, it was not open for the learned Magistrate to review that order, no matter how bad order of taking cognizance and issuance of process may be. 7. So, once the trial Court had issued the process, it was not open for the learned Magistrate to review that order, no matter how bad order of taking cognizance and issuance of process may be. Thus the Learned trial Court had no jurisdiction to recall its order dated 27.04.2015. 8. So far as, dismissal of the complaint on the ground of non-compliance of Section 204-(1A) Cr.P.C. is concerned, Section 204-(1A) Cr.P.C. does not bar the court to direct the complainant to furnish list of witnesses before process is issued and even after the process is issued still the complainant can file list of witnesses provided no prejudice is caused to the accused as the object behind the section mentioned above is to apprise the accused about the evidence the complainant intends to lead against him. The non-compliance of the provision would not vitiate the order of taking cognizance and issuance of process. The procedural laws are meant for the furtherance of justice and not for scuttling the justice. In Ramesh Pandey vs. Chenab Textile Mills, 2011 (1) JKJ 488 , the coordinate bench of this Court has already held that the provisions of section 204 (1-A) Cr.P.C. are not mandatory, it can be complied with at later stage as well provided no prejudice is caused to accused. Therefore, the complaint filed by the petitioner could not have been dismissed for non-compliance of section 204(1-A) Cr.P.C. particularly, when the complainant has mentioned himself as one of the witness and has reserved his right to produce other witnesses. As such, the order passed by the learned Magistrate dated 18.08.2015 is not sustainable in the eyes of law. 9. However, while pursuing the order dated 27.04.2015, it transpires that the learned trial has not taken the cognizance of the complaint and has simply issued the notice without recording its satisfaction as to the commission of offences by the respondents. The Court has issued the notice in mechanical manner and without application of mind. The Supreme Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in (1998) 5 SCC 749 has held as under: 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. The Court has issued the notice in mechanical manner and without application of mind. The Supreme Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in (1998) 5 SCC 749 has held as under: 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. The Magistrate has to carefully scrutinise 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. 10. The Learned Magistrate has not followed the mandate of law as it was obligatory on the part of the Magistrate to examine the allegations of the complaint and evidence oral or documentary and then to record satisfaction as to the commission of offence by the accused. This is a fit case, in which this Court can exercise suo moto power of revision as the order dated 27.04.2015 passed by the learned trial court is illegal and has been passed without following the mandate of law. As such, both the orders dated 27.04.2015 and order dated 18.08.2015 are set aside. The matter is remanded to the trial court. The trial court shall proceed in the matter in accordance with the mandate of section 200 Cr.P.C. and as per the law laid down by the Supreme Court. 11. Disposed of.