Madhya Pradesh High Court
Smt. Harshlata Goud vs Premnarayan on 9 September, 2019
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
MCRC.No.11491/2018
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Smt. Harshlata Goud vs. Premnarayan & others
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
Misc. Criminal Case No.11491/2018
Smt. Harshlata Goud ..... PETITIONER
Versus
Premnarayan & others
..... RESPONDENTS
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Shri Rakesh Kumar Dubey, leaned counsel for the petitioner.
Shri T.C.Narwariya, learned counsel on behalf of Shri Rajesh
Shukla, counsel for the respondent No.1.
None for the respondent No.2 though served.
Shri Aditya Sharma, learned Panel Lawyer for the respondent
No.3/State.
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Whether approved for Reporting : No
Reserved on : 26.06.2019
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ORDER
-( 2 )- MCRC.No.11491/2018 Smt. Harshlata Goud vs. Premnarayan & others (Passed on 09 September, 2019) This petition under Section 482 of Cr.P.C. has been preferred by the petitioner for quashing the order dated 27.05.2016, whereby the cognizance has been taken against the petitioner for the offence punishable under Section 420 of IPC.
2. A private complaint was filed by the respondents No.1 and 2 against the petitioner under Sections 420, 467, 468, 471 and 120-B of IPC before the Court of Judicial Magistrate First Class, Gohad, District Bhind. The JMFC, Gohad after considering the statement recorded under Section 200 of Cr.P.C. took cognizance against the petitioner under Section 420 of IPC on 27.05.2016, on the basis of which, complaint bearing No.296/2016 was registered. Hence, he prayed for setting aside the order of taking cognizance dated 27.05.2016 passed by the JMFC, Gohad under Section 420 of IPC.
3. It is submitted by the learned counsel for the petitioner that the JMFC has taken cognizance against the petitioner without appreciating the documents and evidence on record, which is against the principle of law. Learned counsel for the petitioner further submitted that the petitioner being Patwari has complied the order of Tahsildar who invited objection through publication and as there was no objection by any party, he directed the petitioner for mutation. In the present case, no documentary evidence was submitted. The allegations in the private complaint are not corroborated by the witnesses. On these premises, learned counsel for the petitioner has -( 3 )- MCRC.No.11491/2018 Smt. Harshlata Goud vs. Premnarayan & others submitted that the petitioner has been falsely implicated in the matter. Therefore, learned counsel for the petitioner prayed for allowing this petition and for setting aside the order dated 27.05.2016 passed by the Judicial Magistrate First Class, Gohad, District Bhind.
4. On the other hand, learned Panel Lawyer for the State as well as counsel for the respondents No.1 and 2 supported the impugned order dated 27.05.2016 and submitted that on the basis of material so available on record, the Court below has rightly taken cognizance against the petitioner. Therefore, no interference in the order impugned is warranted.
5. Considered the submissions put forth by learned counsel for the parties and perused the material available on record.
6. Chapter XV of the Code of Criminal Procedure provides the procedure with regard to the complaint to Magistrate whereunder Sections 200, 202 and 203 of Cr.P.C. run as under :-
"200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after -( 4 )- MCRC.No.11491/2018 Smt. Harshlata Goud vs. Premnarayan & others examining the complainant and the witnesses, the latter Magistrate need not re- examine them.
202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."
7. As per section 203 of Cr.P.C. as mentioned above, it is clear that the Magistrate will exercise its discretion after considering the -( 5 )- MCRC.No.11491/2018 Smt. Harshlata Goud vs. Premnarayan & others statements on oath (if any) of the complaint and of the witnesses and the result of the inquiry or investigation (if any) under Section 202 of Cr.P.C. That means registration of complaint or disposal of the complaint depends upon the statements recorded under Sections 200 and 202 of Cr.P.C. and the result of the inquiry or investigation (if any).
8. Having considered the rival contentions of the parties and after perusal of the impugned order, it appears that the learned JMFC has taken cognizance against the petitioner on the basis of material produced by the complainant/ respondents No.1 and 2 after satisfying that prima facie offence under Section 420 of IPC is made out against the petitioner. The grounds taken by the petitioner for quashing the complaint are in nature of defence which cannot be considered at this stage and will be available to the present petition during the course of the trial.
9. This Court in the case of Colgate Palmolive India Ltd. vs. Satish Rohra, 2005 (4) MPLJ 380 , has held in the following manner:-
"6. I have heard the learned Counsel of both the parties and carefully perused the evidence and the material on record. Before considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of -( 6 )- MCRC.No.11491/2018 Smt. Harshlata Goud vs. Premnarayan & others process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage the material produced by the complainant alone is to be considered."
10. In no ambiguous manner this Court has laid down that at the stage of taking cognizance the complaint and documents filed along with the complaint are to be perused but the defence by the accused cannot be looked into at the stage of cognizance.
11. The law laid down in Colgate Palmolive (supra) is squarely applicable to the facts of the present case and the material brought on record against the petitioner cannot be gone into at this stage. Needless to observe that the liberty will be available to the petitioner at the stage of trial and -( 7 )- MCRC.No.11491/2018 Smt. Harshlata Goud vs. Premnarayan & others the outcome of this case will not affect the same.
12. Further the Hon'ble Apex Court in the case of Rajiv Thapar vs. Madan Lal Kapoor (2013) 3 SCC 330 , has cautioned the High Court while exercising the power under Section 482 CrPC in the following manner:-
"22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/ complainant's case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions -( 8 )- MCRC.No.11491/2018 Smt. Harshlata Goud vs. Premnarayan & others contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."
13. Having carefully examined the law laid down by the Hon'ble Apex Court in the case of Rajiv Thapar (supra) , it is clear that the interference under Section 482 CrPC is not warranted.
14. Hence, in the light of the aforesaid discussion and the observation made by the Court below while taking cognizance, in the considered opinion of this Court, no case for interference is made out. -( 9 )- MCRC.No.11491/2018
Smt. Harshlata Goud vs. Premnarayan & others No illegality or perversity is found in the impugned order. Consequently, the petition filed under Section 482 of Cr.P.C. is hereby dismissed.
Let a copy of the order be sent to the Court below for information.
(Rajeev Kumar Shrivastava)
AK/- Judge
ANAND KUMAR
2019.09.11
17:19:07 +05'30'