Madhya Pradesh High Court
Ramcharan vs Devkarn on 5 July, 2017
M.Cr.C No.8930/2016
05/07/2017
Shri Sachin Subnis, learned counsel for the petitioners.
Shri R.C. Verma, learned counsel for the respondent
No.1.
Shri K.P. Maheshwari, learned counsel for the respondent No.2.
Shri H.K. Sharma, learned counsel for the respondent No.3.
Mrs. Mamta Shandilya, learned Deputy Govt. Advocate for the respondent No.4/State.
This is a petition under Section 482 of The Code of Criminal Procedure, 1973 (for short 'The Code'), against order dated 16/08/2016 passed by the Ist Additional Sessions Judge, Shujalpur District Shajapur in Criminal Revision No. 89/2016 whereby learned Additional Sessions Judge has affirmed the order dated 22/05/2015 passed by the learned Judicial Magistrate First Class, Shujalpur, District-Shajapur taking cognizance against petitioners-Ramcharan and Dharam Singh alongwith two other persons Ramesh Carpainter and Karan Singh for offences under Sections 420, 467, 468/120-B of the IPC.
Allegedly, a criminal complaint, a copy of which is annexed with the petition, has been filed by the respondent No.1/complainant-Devkaran before the Court of learned JMFC, Shujalpur, District-Shajapur alleging therein that petitioners persuaded him to provide his two photographs and copy of 'Bhu Adhikar Rin Pustika' for procuring credit card from the bank and misusing these documents have got executed a sale deed in favour of respondent No.3-Karan Singh with regard to agricultural land belonging to complainant-Devkaran. Therefore, petitioners-Ramcharan, Dharam Singh as well as respondent No.2-Ramesh Carpainter and respondent No.3-Karan Singh are liable to be proceeded for offences under Sections 420, 467, 468/120-B of the IPC. Learned trial Court after recording the statement of respondent No.1/complainant-Devkaran under Section 200 of 'the Code', vide impugned order directed the issuance of notice against petitioners.
Learned counsel for the petitioners has invited the attention of this Court to the statements of the complainant- Devkaran (P.W.1), Mahesh (P.W.2) and Vinod Kumar (P.W.3) recorded under Section 200 and 202 of 'the Code'. It is submitted that none of these witnesses has deposed about the allegations that petitioners at any point of time asked or persuaded respondent No.1/complainant-Devkaran to provide their photograph and copy of 'Bhu Adhikar Rin Pustika' for procurement of Kisan Credit Card , therefore, prima-facie, ground is not made out to take cognizance against them for offence under Sections 420, 467, 468/120-B of the IPC. It is further submitted that the learned trial Court has passed the impugned order in a mechanical manner, which is not only unjust, but also against the settled principles of law and, therefore, liable to be quashed.
Per contra, the learned counsel for the respondents submits that the impugned order is just and proper and no interference is called for in the matter.
Heard the learned counsel for the parties and perused the record.
Issuance of process and taking cognizance on the basis of complaint is a serious matter and that the Magistrate, before exercising jurisdiction in this behalf, should carefully examine the averments made in the complaint as well as evidence adduced under Section 200 and 202 of 'The Code'.
In this connection, observations made by apex Court in M/s. Pepsi Food Limited and another v. Special Judicial Magistrate and others, AIR 1998 SC 128 equal to (1988) 5 SC 749 can be usefully perused, which are as under:
"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. 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."
A perusal of the complaint and statements of the complainant-Devkaran (P.W.1), Mahesh (P.W.2) and Vinod Kumar (P.W.3) recorded under Section 200 and 202 of 'the Code' clearly reveals that despite there being total absence of necessary ingredients to constitute offence under Sections 420, 467 and 468/120-B of IPC, the learned Magistrate without applying its mind, in a mechanical manner, has taken cognizance and directed issuance of process, which is totally unjust, improper and illegal.
In view of the aforesaid, the petition deserves to be and is hereby allowed and the order dated 16/08/2016 passed by the Ist Additional Sessions Judge, Shujalpur, District Shajapur qua-petitioners- Ramcharan and Dharam Singh is hereby quashed.
Certified copy as per rules.
(Ved Prakash Sharma) Judge skt