Uttarakhand High Court
Naveen Singh And Another ... vs State Of Uttarakhand And Another on 8 March, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
RESERVE
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No.686 of 2017
Naveen Singh and another ......Petitioners
Versus
State of Uttarakhand and another ....Respondents
Present:
Mr. A.K. Bansal, Advocate for the petitioners.
Mr. Lalit Miglani, A.G.A. for the State.
Mr. Anil Kumar Joshi, Advocate for respondent no.2.
JUDGMENT
Per: Hon'ble Ravindra Maithani, J.
Challenge in this petition is made to the cognizance/summoning order dated 24.01.2014, passed in Criminal Case No. 329 of 2014, State vs. Naveen Singh, under Sections 332, 353, 186, 504 IPC, by the court of Civil Judge (Senior Division)/ Judicial Magistrate, Kashipur, District Udham Singh Nagar (for short, "the case")
2. Facts necessary to appreciate the controversy briefly stated are as follows:-
The respondent no.2 (the informant) lodged an FIR on 20.11.2013, under Sections 332, 353, 186, 504 IPC at Police Station Jaspur, District Udham Singh Nagar against the petitioners. According to the FIR, the informant 2 at the relevant time was working as a Associate Vice President Regional Manager, Nainital Bank Ltd. ("the Bank"). M/S Naveen Sheets Pvt. Ltd. had taken loan from the Bank. When M/S Naveen Sheets Pvt. Ltd. did not repay the loan, it was declared non performing assets. The Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, "SARFAESI Act"). On 20.11.2013, at 11:30, the informant alongwith other Bank officials proceeded to take the symbolic possession of the immovable properties of the M/S Naveen Sheets Pvt. Ltd. Prior to it, at 10.14 a.m. on the same date, the petitioner no. 1 Naveen Singh had requested that the proceedings for taking possession be postponed. The Bank officials requested the petitioner no.1 Naveen Singh to cooperate with the Bank officials in taking symbolic possession of the immovable property under the SARFAESI Act. When the informant and other Bank officials reached at the spot, according to the FIR, the petitioner no.1 Naveen Singh assaulted the Bank officials and both the petitioners shoved, pushed the Bank official and misbehaved with them and obstructed the informant and other Bank officials in discharge of their duties under the SARFAESI Act. It is this FIR, in which, after investigation, charge sheet under Sections 332, 353, 186, 504 IPC has been submitted against the petitioners. Initially, the charge sheet was 3 submitted in the court of Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar, which court transferred the case to the court of Civil Judge (Senior Division)/Judicial Magistrate, Kashipur, District Udham Singh Nagar. On 24.01.2014, cognizance was taken and summons issued against the petitioners. It is impugned herein.
3. Heard learned counsel for the parties and perused the record.
4. Learned counsel for the petitioners would argue that the impugned order dated 24.01.2014 is bad in the eye of law for the following reasons:-
(i) The order does not reflect that the Magistrate concerned had applied his mind. It does not reveal the offences under which the petitioners have been summoned and;
(ii) The informant and other Bank officials are not public servants as defined under Section 21 IPC. Therefore, the offences under Sections 332, 353, 186 IPC are not made out.4
5. In support of his contention, learned counsel has placed reliance on the principles of law, as laid down in the cases of State of Maharashtra Vs. Sharadchandra Vinayak Dongre and others, AIR 1995 SC 231, GHCL Employees Stock Option Trust Vs. India Infoline Limited, (2013) 4 SCC 505 and Gopal Dutt Vs. State of Uttarakhand and another, (2016) (1) UD 361.
6. In the case of Sharadchandra Vinayak Dongre (supra), the Hon'ble Supreme Court discussed the powers of the Magistrate under Section 190 (1) (b) of the Code of Criminal Procedure, 1973 (for short, "the Code") in the matter of taking cognizance upon a police report. In para 7 of the judgment, the Hon'ble Supreme Court observed as hereunder:-
"7. The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed along with the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1)(b) CrPC provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. ............................ .......................................................................................... ........................................................................................." 5
7. In the case of GCCL (supra), the cognizance was taken against the Managing Director, Company Secretary or Directors. The court of Magistrate had not recorded his satisfaction about the prima facie case against the accused in their capacity of Managing Director, Company Secretary or Directors. Such order was not upheld by the High Court. The order of the High Court was confirmed by the Hon'ble Supreme Court.
8. In the case of Gopal Dutt (supra), this Court had followed the principles of law as laid down in the case of GCCL (supra) and observed that the summoning order of the Magistrate must reflect that he had applied his mind under the facts of the case and law applicable about the existence of prima facie case. It may be noted that in the case of Gopal Dutt (supra), Police had filed a final report but a protest petition was treated as a complaint and cognizance was taken on it.
9. On the other hand, learned counsel for the informant would submit that the order taking cognizance has been recorded by the court in the charge sheet itself. The Magistrate has applied his mind. Learned counsel would admit that the informant does not fall within the definition of 6 the public servant as defined under Section 21 IPC. But, it is argued that still the offence under Section 504 IPC is made out.
10. Undoubtedly, taking cognizance is not a routine and mechanical exercise for the Magistrate. Application of judicial mind is required at that stage. It is also settled law that taking cognizance and summoning of the accused are two different stages in a criminal case.
11. In the case of State of Karnataka and another Vs. Pastor P. Raju, (2006) 6 SCC 728 in para 13, the Hon'ble Supreme Court has elaborated this concept as hereunder:-
"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."
12. In fact, the practice of issuing summons in the State of Uttarakhand has been deprecated by the Hon'ble Supreme Court in the case of Pawan Kumar Mishra Vs. State of Uttaranchal (Special Leave to Appeal (Criminal) No. 4701 of 2007) and observed that in the State of Uttarakhand, the Magistrates take cognizance of offences 7 and issue summons in terms of Section 202 of the Code on rubber stamped orders.
13. It is true that the Magistrate should apply judicial mind while taking cognizance or summoning an accused. But, how could it be done?
14. In case of Mahmood Ul Rehman Vs. Khazir Mohammad Tunda and others, (2015) 12 SCC 420, the Hon'ble Supreme Court discussed this concept and observed that it is not necessary to pass speaking order at the stage of cognizance. The Hon'ble Supreme Court in para 15 observed as hereunder:-
"15. In Kanti Bhadra Shah v. State of W.B. [Kanti Bhadra Shah v. State of W.B., (2000) 1 SCC 722 : 2000 SCC (Cri) 303] , this Court has taken the view that it is quite unnecessary to write detailed orders at the stage of issuing process. In U.P. Pollution Control Board v. Mohan Meakins Ltd. [U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745] , the position was further clarified that it was not necessary to pass a speaking order at the stage of taking cognizance. In Chief Controller of Imports and Exports v. Roshanlal Agarwal [Chief Controller of Imports and Exports v. Roshanlal Agarwal, (2003) 4 SCC 139 : 2003 SCC (Cri) 788] , this Court considered the situation where the impugned order passed by the Magistrate reads as follows: (SCC p. 145, para 8) "8. ... 'Cognizance taken. Register the case. Issue summons to the accused.'"
It was held that: (SCC p. 145, para 9)
"9. ... At the stage of issuing the process to the accused, Magistrate is not required to record reasons." 8 Kanti Bhadra Shah [Kanti Bhadra Shah v. State of W.B., (2000) 1 SCC 722 : 2000 SCC (Cri) 303] and U.P. Pollution Control Board [U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745] were also referred to in the said decision."
15. In the case of Prasad Shrikant Purohit Vs. State of Maharashtra and another, (2015) 7 SCC 440, the Hon'ble Supreme Court observed as hereunder:-
"73. In Darshan Singh Ram Kishan [(1971) 2 SCC 654 : 1971 SCC (Cri) 628 : AIR 1971 SC 2372] , in para 8, with particular reference to Section 190, this Court has held as under : (SCC p. 656) "8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report."
16. In the instant case, initially, the charge sheet was submitted before the court of Additional Chief Judicial 9 Magistrate, Kashipur, which orders for registration of charge sheet but transferred the case to the court of competent jurisdiction. This order was passed by the court of Additional Chief Judicial Magistrate, Kashipur on the charge sheet as well as on the order sheet of the case. The case was subsequently transferred to the court of Civil Judge (Senior Division)/Judicial Magistrate, Kashipur. On 24.01.2014, on the charge sheet, the court passed the following order:-
"Cognizance of offence is taken.
Register at its original number".
In the order sheet separately, the court has further recorded the same order as was recorded in the charge sheet and thereafter issued summons to the petitioners. The charge sheet has been submitted under Sections 332, 353, 186 and 504 IPC."
17. In the instant case, cognizance has been taken and this order is recorded in the charge sheet. Order summoning the petitioners has been passed on the order sheet. In view of the settled law, the court was not required to pass a speaking order. Therefore, it cannot be said that the court did not apply its judicial mind while taking cognizance in the matter.
18. Another contention has been raised where the informant and other Bank officials are not public servants. 10 This fact has been admitted by the learned counsel for the informant. The charge sheet has been submitted under Sections 332, 353, 186 and 504 IPC. Section 332, 353 and 186 IPC are public servant specific offences. Therefore, prima facie, these offences are not made out. But, the offences under Section 332 and 353 IPC which deals with voluntary causing hurt to deter public servant from his duty and assault or criminal force to deter public servant from discharge of his duties, when applied to a person who is not a public servant would fall under the category of offences under Section 323 and 352 IPC respectively.
19. What is being argued on behalf of the petitioners is that since the informant and the other Bank officials are not public servants, therefore, the offences under Sections 323, 353 and 186 IPC is not made out. This contention is true, but on the same allegations which forms offences under Sections 332 and 353 IPC with regard to a public servant, offences under Sections 323 and 352 respectively are made out against an individual who is not public servant.
20. Insofar as, Section 186 IPC is concerned, it is with regard to public servant only. Therefore, in the instant, prima facie, this offence is no made out.
11
21. In view of the foregoing discussion, this Court is of the view that prima facie offence under Sections 353, 332 and 186 IPC is not made out against the petitioners. But, prima facie, offence under Sections 323, 352, 504 IPC is made out against the petitioners. The trial against the petitioners shall proceed under these sections. The petition deserves to be disposed of accordingly.
22. With the above observation, the petition stands disposed of.
(Ravindra Maithani, J.) 08.03.2022 Jitendra