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2021 DIGILAW 446 (JK)

Ashok Kumar Pargotra v. Shama Begum

2021-09-02

RAJNESH OSWAL

body2021
JUDGMENT : 1. The petitioner has filed the instant petition under section 561-A Cr.P.C. (now 482 Cr.P.C.) for quashing of the complaint filed by the respondent for commission of offences under sections 323, 294 and 506 RPC against the petitioner pending before the court of Judicial Magistrate 1st Class (Munsiff), Ramban (hereinafter to be referred as the trial court) and also for quashing the order dated 03.03.2016 passed by the trial court, whereby process has been issued against the petitioner. 2. The proceedings arising out of the complaint mentioned above and order dated 03.03.2016 have been impugned by the petitioner on the following grounds: (i) That the petitioner was having service dispute with Gul Hussain Kurpak and Javed Iqbal Wani and the petitioner had every apprehension that said persons may implicate the petitioner in some false and frivolous case by arranging some fictitious complainant against the petitioner. The petitioner had already brought the same to the notice of various higher authorities, i.e. Chief Secretary of the State, Principal Secretary to then Hon’ble Governor, Advisor to the Hon’ble Governor and District Development Commissioner, Ramban. (ii) That the perusal of the complaint as well as the statement made by the complainant reveal that there are three different dates of occurrence but the learned trial court has issued the process in a mechanical manner without adverting to the facts of the case. (iii) That no offence under section 323, 294 and 506 RPC is made out against the petitioner. (iv) That the cognizance could not have been taken against the petitioner without obtaining sanction as required under section 197 Cr. P.C. 3. Mr. Abhinav Sharma, learned senior counsel for the petitioner vehemently argued that the complaint filed by the respondent is false as is evident from the fact that the petitioner had already intimated to his higher authorities with regard to the filing of such complaint as he had every apprehension that the persons with whom he had service dispute may implicate the petitioner in a false case. He further argued that in the complaint the date of occurrence has been mentioned as “today on this 2nd day of February, 2016 at 3.30 P.M.” whereas, the complaint has been filed on 03.03.3016 and further in the preliminary statement of the complainant recorded by the trial court, the date of occurrence has been shown as 02.03.2016, but the learned Magistrate has issued the process in a mechanical manner without considering them. 4. Heard learned counsel for the petitioner and perused the record. 5. From the record, it is evident that the complaint for commission of offences under section 223, 294 and 506 RPC was filed by the respondent against the petitioner, who happened to be the Executive Engineer, Rural Development Department, Ramban and the date of occurrence has been shown as “today on this 2nd day of February, 2016 at 3.30 P.M.”. If the word “today” is to be believed then said occurrence will be 03.03.2016 as the respondent had filed the complaint on 03.03.2016 and if, 2nd of February, 2016 is to be believed then the preliminary statement made by the complainant before the learned Magistrate reflects the date of occurrence as 02.03.016. 6. Thus, it becomes evident that the complainant has mentioned three dates of occurrence i.e. 02.02.2016, 03.03.2016 and 02.03.2016. A perusal of the order dated 03.03.2016, reveals that the learned Magistrate has not considered this vital aspect of the case, which he was supposed to consider. The trial court has issued the process 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. 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. 7. Thus, for the purpose of issuing process, the Magistrate has to record its satisfaction with regard to the commission of offences by considering the material on record, which includes the complaint, statement of the complainant as well as witnesses and documentary evidence. The learned Magistrate has miserably failed to consider that the complainant has given three dates of occurrence. 8. In view of the above, this court is of the considered opinion that the learned Magistrate has passed the order impugned in a mechanical manner without adverting to the facts of the case. Accordingly, the order impugned dated 03.03.2016 passed by the trial court is set aside. The matter is remanded back to the trial court for considering afresh. 9. Disposed of.