Madhya Pradesh High Court
Suresh Upadhyay vs The State Of Madhya Pradesh on 3 February, 2017
1 MCRC 4299/2015
(Suresh Upadhyay & Ors. vs. State of M.P. & Anr.)
3.2.2017
Shri Rajmani Bansal, counsel for the applicants.
Shri Girdhari Singh Chauhan, Public Prosecutor for the
respondent No.1/State.
This petition under Section 482 of Cr.P.C. has been filed against the order dated 15.4.2015 passed by 5th ASJ, Morena in Criminal Revision No.105/2014 by which the order dated 31.7.2014 passed by ACJM, Morena in Criminal Case No. 1213/2013 has been affirmed.
In order dated 31.7.2014, it is mentioned that initially cognizance was taken against Bachhu Singh, Banwari Pratap Singh and Suresh and the said order was set aside by the Sessions Judge by his order dated 4.9.2013 on the ground that only the CJM had jurisdiction to pass such an order and since the order in question was passed by JMFC, therefore, the order dated 5.6.2013 by which the cognizance was taken against Bachhu Singh, Banwari Pratap Singh and Suresh was set aside and the bailable warrants which were issued against these persons were also set aside. However, it is further mentioned by the ACJM in the order dated 31.7.2014 that the order dated 4.9.2013 passed by the Sessions Judge, Morena remained unnoticed by the Presiding Judge and the warrants were continuously issued against the applicants. On 31.7.2014 it appears that the ACJM, Morena noticed the order dated 4.9.2013 passed by the Sessions Judge, Morena and, therefore, held that all the previous proceedings which have taken place after 4.9.2013 were done in ignorance of the order passed by the Sessions Judge. However, without considering the allegations and the material which has been brought on 2 MCRC 4299/2015 record by the prosecution and without assigning any reasons, the ACJM, Morena took cognizance against the applicants and one Pratap Singh for offence punishable under Section 34 (2) of M.P. Excise Act. While taking cognizance, it was mentioned that on perusal of the documents filed along with the charge sheet, there appears to be sufficient material to take cognizance against the applicants and Pratap Singh, therefore, the cognizance was taken once again.
It is submitted by the counsel for the applicants that undisputedly the Magistrate has power under Section 190 of Cr.P.C. to take cognizance against a person who has not been charge sheeted but before doing so he has to apply its mind to the documents and the evidence filed along with the charge sheet. To buttress his contention, the counsel for the applicants relied upon the judgment of Supreme Court passed in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in (2015) 4 SCC 609.
Per contra, the counsel for the respondent submitted that it is clear from the impugned order that after considering the documents filed along with the charge sheet the Magistrate came to a conclusion that there is sufficient material available on record to take cognizance against the applicants and disclosure of reasons in the order is not essential.
Heard the learned counsel for the parties and perused the documents filed along with the petition.
The core question is that whether by merely mentioning that on perusal of the documents filed along with the charge sheet there is sufficient grounds to take cognizance against the person who has not been charge 3 MCRC 4299/2015 sheeted is sufficient to indicate that the Magistrate before taking cognizance has applied its mind or not.
The Supreme Court in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in (2015) 4 SCC 609 has held as under:-
50. Person who has not joined as accused in the charge- sheet can be summoned at the stage of taking cognizance under Section 190 of the Code. There is no question of applicability of Section 319 of the Code at this stage (See SWIL Ltd. v.
State of Delhi (2001) 6 SCC 670). It is also trite that even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (See Union of India v. Prakash P. Hinduja (2003) 6 SCC 195). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer.
51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to 4 MCRC 4299/2015 whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient grounds for proceeding" appearing in the Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. 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 accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
Thus, in the opinion of the Magistrate while taking cognizance of an offence is also required to assign reasons though briefly. He has to express his satisfaction by assigning all reasons as only they are indicative of application of mind. As the Magistrate has not given any reason to arrive to his satisfaction that there is sufficient material against the applicants to take cognizance, therefore, this Court is of the view that the order dated 5 MCRC 4299/2015 31.7.2014 passed by the ACJM, Morena in Criminal Case No.1213/2013 is not in accordance with law.
The Revisional Court while considering the revision against the said order has failed to take note of the judgment passed by the Supreme Court in the case of Sunil Bharti Mittal (supra). Accordingly, the order dated 31.7.2014 passed by the ACJM, Morena in Criminal Case No.1213/2013 and the order dated 15.4.2015 passed by 5 th ASJ, Morena in Criminal Revision No.105/2014 are set aside. The matter is remanded back to the ACJM, Morena to decide the question of taking cognizance afresh by disclosing reasons.
With the aforesaid observations, the petition is disposed off.
(G.S. Ahluwalia) Judge (alok)