Jharkhand High Court
Surendra Nath Tiwary vs State Of Jharkhand on 5 April, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 [W.P. (Cr.) No. 350 of 2015]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 350 of 2015
1. Surendra Nath Tiwary
2. Virendra Kumar Tiwary ... Petitioners
-Versus-
1. State of Jharkhand
2. Anjana Das, Circle Officer, Garhwa Sadar, Garhwa
... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Rajesh Kumar, Advocate Mr. Amit Kumar, Advocate For the State : Ms. Shivani Kapoor, A.C. to S.C.-II For Respondent No.2 : Mr. R.S. Mazumdar, Sr. Advocate Mr. Rohan Mazumdar, Advocate Mr. S. Bhowmik, Advocate Mr. K.K. Mishra, Advocate
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07/05.04.2023 I.A. No.9824 of 2018 I.A. No.9824 of 2018 has been filed for amendment in the prayer portion of the writ petition.
2. Mr. Rajesh Kumar, learned counsel for the petitioners submits that earlier only FIR was challenged in this petition, however subsequently vide order dated 16.08.2018, the learned court has taken cognizance against the petitioners and that is why the said I.A. has been filed. He submits that this I.A. may kindly be allowed.
3. Mr. R.S. Mazumdar, learned senior counsel appearing for respondent no.2 and Ms. Shivani Kapoor, learned counsel for the State are opposing the prayer made in the said I.A. and submit that deliberately this I.A. has not been pressed and that is why it is fit to be dismissed.
4. In view of the above submissions of the learned counsel for the parties, the Court has gone through the order taking cognizance and finds that the cognizance order was passed on 16.08.2018 whereas the FIR was 2 [W.P. (Cr.) No. 350 of 2015] challenged in the year 2015 itself. To avoid multiplicity of the litigation and in the interest of justice, the prayer made in the said I.A. is allowed.
5. Accordingly, I.A. No.9824 of 2018 is disposed of.
6. Let the said I.A. be treated as part of the main writ petition. W.P. (Cr.) No.350 of 2015
7. With consent of the parties, the matter has been heard on merit.
8. Heard Mr. Rajesh Kumar, learned counsel for the petitioners, Mr. R.S. Mazumdar, learned senior counsel appearing for respondent no.2 and Ms. Shivani Kapoor, learned counsel for the State.
9. This petition has been filed for quashing of the FIR registered as Garhwa P.S. Case No.208/2015 dated 20.05.2015 corresponding to G.R. No.1055/2015, pending in the court of the learned Chief Judicial Magistrate, Garhwa. I.A. No.9824 of 2018 is allowed and that is why, the order taking cognizance dated 16.08.2018 is also under challenge.
10. The complaint was filed alleging therein that the complainant is a Circle Officer posted in Garhwa Circle and she belongs to SC category and she resides in Garhwa along with her seven year son. It was further alleged that the accused persons are influential persons and they used to visit Garhwa Block every day and disturb the working of officials posted in the Block Office. The complainant is afraid of the accused persons because she has decided a case relating to mutation of their land against them, as a result of which, they are frustrated and having grudge against the informant and on the date of occurrence both the accused persons came in the office of the informant and started shouting and abusing her and her subordinates very loudly mentioning her caste and the above act on the part of the accused persons has caused mental harassment to the informant and 3 [W.P. (Cr.) No. 350 of 2015] accordingly a case under Section 3/4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is filed by the informant before the concerned authority. On the basis of the above, the police registered a case under Section 3/4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against the petitioners as Garhwa P.S. Case No.208/2015 dated 20.05.2015.
11. Mr. Rajesh Kumar, learned counsel for the petitioners submits that the complaint was addressed to the State Women Commission, Jharkhand on 25.01.2015 and the police has registered FIR on 20.05.2015. He submits that in the said complaint, the State Women Commission has passed the order on 08.11.2016 and in the said order, it has been observed that respondent no.2 is a Government officer and she has chosen not to appear before the State Women Commission and it appears that previously complaint has been filed. He further submits that against the order of the State Women Commission, W.P.(C) No.2584 of 2019 was filed before this Court by respondent no.2, which was withdrawn on 23.02.2022. He further submits that prior to the said complaint, the petitioners filed a complaint case against respondent no.2 on 23.01.2015, contained in Annexure-3 of the petition in which cognizance has been taken vide order dated 17.08.2018. He also submits that a revenue case was decided by respondent no.2 against the petitioners and against that, an appeal was filed on 30.09.2014 and the said appeal was allowed vide order dated 05.06.2017, contained in Annexure-7 and the learned appellate court has set aside the order passed by respondent no.2. In this background, he submits that as a counter blast, the said complaint has been filed against the petitioners and to allow the proceeding to continue, will amount to 4 [W.P. (Cr.) No. 350 of 2015] abuse of process of law.
12. On the other hand, Mr. R.S. Mazumdar, learned senior counsel appearing for respondent no.2 submits that in the FIR there is allegation of harassing respondent no.2 and the ingredients of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act are made out. He further submits that in view of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act is made out, the learned court has rightly taken cognizance against the petitioners. To buttress his argument, he relied upon the judgment passed in Swaran Singh & others v. State through Standing Counsel & another; [(2008) 8 SCC 435] . He also submits that the CID has further investigated the case and submitted charge-sheet and, thereafter, the learned court has taken cognizance against the petitioners. In this background, he submits that the case is fit to be rejected.
13. Ms. Shivani Kapoor, learned counsel for the State submits that the CID has further investigated the matter and submitted charge-sheet and, thereafter the learned court has taken cognizance vide order dated 16.08.2018 and in that view of the matter, this Court may not exercise its power under Article 226 of the Constitution of India.
14. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and finds that admittedly prior to filing of the present complaint case, the complaint case contained in Annexure-3 has been filed on behalf of the petitioners against respondent no.2 on 23.01.2015 in which cognizance has been taken on 17.08.2018. It further transpires that the State Women Commission in its order dated 08.11.2016 has deprecated the role of respondent no.2 and in 5 [W.P. (Cr.) No. 350 of 2015] the appeal arising out of revenue case, in which, the order was passed by respondent no.2, the learned appellate court has also observed against respondent no.2. Further, the Court has perused the order taking cognizance dated 16.08.2018 and finds that this order is not in accordance with law. The entire order-sheet is written in Hindi, whereas the word 'cognizance' has been written in English in blank space, which suggests that there is non-application of judicial mind and in this regard, reference may be made to the judgment passed in State of Karnataka v. Pastor P. Raju; [(2006) 6 SCC 728] wherein at paragraphs 10 and 13, the Hon'ble Supreme Court has held as under:-
"10. Several provisions in Chapter XIV of the Code of Criminal Procedure use the word "cognizance". The very first section in the said Chapter viz. Section 190 lays down how cognizance of offences will be taken by a Magistrate. However, the word "cognizance" has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word "cognizance" is -- "judicial hearing of a matter". The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earliest decision of this Court on the point is R.R. Chari v. State of U.P. [1951 SCC 250 : 1951 SCR 312 : AIR 1951 SC 207 : 1951 Cri LJ 775] wherein it was held :
"... 'taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence'."
13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out."
15. It has been further held by the Hon'ble Supreme Court in Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others; [(2019) 16 SCC 610]. Paragraph nos.33, 34 and 35 of the 6 [W.P. (Cr.) No. 350 of 2015] said judgment are quoted herein below:
"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:
"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 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, self respect 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:
"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 7 [W.P. (Cr.) No. 350 of 2015] 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 Sinha, it was held that the issuance of process should not be mechanical nor should be made an instrument of oppression or needless harassment."
16. In view of the above facts, reasons and analysis, the order dated 16.08.2018 passed by the learned Additional Sessions Judge-I, Garhwa in SC/ST Case No.65/2018 is quashed. The matter is remitted back to the learned concerned court to pass order afresh, in accordance with law.
17. Accordingly, this petition is disposed of.
18. Pending I.As, if any, are also disposed of.
(Sanjay Kumar Dwivedi, J.) Ajay/