Jharkhand High Court
Sorbrati Khan vs The State Of Jharkhand on 25 April, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1469 of 2017
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Sorbrati Khan, son of late Bad Khan, resident of Devipur (Kheshmi), P.O. and P.S. Nawalshahi, District-Koderma ...... Petitioner Versus ...............
1.The State of Jharkhand
2. Md. Mustakim Khan, son of late Nazir Khan, resident of village Bindomoh, P.O. and P.S. Nawalshahi, District-Koderma ...... Opposite Parties CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Rohan Mazumdar., Advocate
For the State : Mr. Vishwanath Ray, A.P.P.
For the O.P. No.2 : Mr. Arpit Kumar, Advocate
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04/Dated: 25/04/2022
1. Heard Mr. Rohan Mazumdar, learned counsel for the petitioner, Mr. Vishwanath Ray, learned counsel for the State and Mr. Arpit Kumar, learned counsel for the O.P. No. 2.
2. This petition has been filed for quashing of entire criminal proceeding arising out of Complaint Case No. 91 of 2016 including order taking cognizance dated 25.05.2017 pending in the Court of learned Judicial Magistrate, Koderma.
3. O.P. No. 2 has filed the complaint case alleging therein that the accused-petitioner had good relation with the complainant. The accused- petitioner contacted to the complainant and told that he is in urgent need of money and therefore, he requested the complainant to give him Rs. 85,000/-. The complainant agreed to give Rs. 80,000/- to the petitioner with the condition that he would execute a sale deed of 20 decimals of land under Khata No. 65, Plot No. 1039, Mouza Bindomoh, P.S. Nawalshahi, District Koderma and to this effect the accused-petitioner had executed an agreement on 29.01.2002. It is further alleged that on several occasions the complainant requested the petitioner for execution of sale deed but the petitioner every time took excuses and lastly the complainant came to know that rent receipt of 2 the petitioner has not been issued and hence he will not execute the sale deed. Thereafter the complainant sent a legal notice on 13.10.2015 to the petitioner but the accused-petitioner denied to execute the sale deed. It is further alleged that neither the accused executed sale deed nor returned a sum of Rs. 85,000/- to the complainant moreover the accused threatened the complainant.
4. Mr. Rohan Mazumdar, learned counsel for the petitioner submits that the entire allegations are false. He submits that assuming that the contents are correct, only civil case is made out whereas petitioner has been implicated in criminal case. He further submits that agreement is of the year 2002 and the complaint has been filed in the year, 2016. He further submits that cognizance order is not in accordance with law.
5. Mr. Arpit Kumar, learned counsel for the O.P. No. 2 submits that there are allegations against the petitioner as the petitioner has taken Rs. 85,000/- inspite of that he has not executed sale deed in favour of O.P. No. 2.
6. In view of above submissions of the learned counsel for the parties, the court has gone through the materials on record. It appears that on non-execution of sale deed by the petitioner, the complaint has been filed by the O.P. No. 2. The agreement is of the year 2002 and the complaint has been filed in the year, 2016. On perusal of cognizance order dated 25.05.2017, it transpires that cognizance order is not in accordance with law. In such type of cases where civil allegations are made and if the Court is taking cognizance with regard to criminal case, prima facie materials are required to be disclosed against the accused, which is lacking in the case in hand. Learned court has not disclosed what are the prima facie materials against the petitioner and has taken cognizance. Reference may be made to case of " Birla Corporation Limited Vs. Adventz Investments and Holdings Limited & Others"
reported in (2019) 16 SCC 610 wherein para 33, 34 and 35 the Hon'ble 3 Supreme Court has held as under:-
"33. 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. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to the accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under: (SCC p. 430, para 22) "22. ... The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and 31 when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, selfrespect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."
(emphasis supplied)
34. In Pepsi Foods Ltd. v. Judicial Magistrate, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para 28, it was held as under: (SCC p. 760) "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." The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was reiterated in GHCL Employees Stock Option Trust v. India Infoline Ltd.
35. To be summoned/to appear before the criminal court as an accused is a serious matter affecting one's dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused. In Punjab National Bank v. Surendra Prasad 4 Sinha, it was held that the issuance of process should not be mechanical nor should be made an instrument of oppression or needless harassment."
7. In view of the aforesaid facts, reasons and analysis, order taking cognizance dated 25.05.2017 passed in Complaint Case No. 91 of 2016 pending in the Court of learned Judicial Magistrate, Koderma, is hereby quashed.
8. This matter is remitted back to the court concerned to proceed afresh in accordance with law.
9. This criminal miscellaneous petition stands disposed of. Pending I.A, if any, stands disposed of.
(Sanjay Kumar Dwivedi, J.) Satyarthi/