Dr. Sandip Kumar Mukhopadhyay vs State Of U.P. And Another
2013 Latest Caselaw 6108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved.
 
AFR
 

 

 
Case :- CRIMINAL REVISION No. - 455 of 2011
 
Revisionist :- Dr. Sandip Kumar Mukhopadhyay
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Anurag Khanna,Syed Fahim Ahmad
 
Counsel for Opposite Party :- Govt. Advocate,S.B. Singh
 

 
Hon'ble Bharat Bhushan,J.

1. This revision on behalf of prospective accused Dr. Sandip Kumar Mukhopadhyay of Kolkata seeks quashing of summoning order dated 9.12.2010 passed by Judicial Magistrate, Court No. 3, Allahabad.

2. Opposite party no. 2/complainant instituted a complaint stating therein that the revisionist Dr. Sandip Kumar Mukhopadhyay a resident of Kolkata has been visiting Satyam Kriya Yog Ashram, Allahabad for several years. He used to introduced himself as Chairman/Managing Director of a firm in the name and style of M/s Macrotech (India) Ltd. The revisionists promised a job for any kin of complainant on furnishing the security in terms of money. The revisionist is said to have handed over his visiting card indicating his status as Chairman/Managing Director of the firm M/s Machrotech (India) Ltd to the complainant. The complainant requested him to provide a job for his son. He paid Rs. 25,000/- to the revisionist/accused on 8.11.2009 at 5 p.m. in Satyam Kriya Yog, Ashram, Jhunsi, Allahabad in presence of witnesses namely Radhey Shyam and Sushil Kumar.

3. Revisionist/ accused allegedly promised a job for son of complainant within ten days. He also sought additional installment of Rs. 25,000/- at the time of issuance of appointment letter for which the complainant agreed. As no job materialised, the complainant was impelled to make enquiries at Satyam Kriya Yog Ashram, Jhunsi, Allahabad. Some Ashram inmates (not named) allegedly badmouthed the revisionist and told the complainant that he has been cheated. Complainant reported this matter to the police Station Jhunsi but neither the FIR was lodged nor any investigation/inquiry conducted. Deputy Inspector General of Police was also approached but he also failed to ensure any enquiry into the matter. Therefore, the complainant was compelled to file the present complaint on 3.2.2010. Learned Magistrate recorded the statement of complainant under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. Thereafter, learned Magistrate issued direction for investigation under Section 202 Cr.P.C. on 3.8.2010 and sought a report by 30.9.2010. A copy of the complaint was also sent to the police station. But strangely no report of investigation/enquiry was submitted by the police. Several dates were fixed by the courts. Virtually on each date, advocates refrained from judicial work on account of strike. On one occasion, learned Magistrate had gone out for training. Suddenly on 30.11.2010, arguments were heard on behalf of the complainant without apparently insisting on submission of the police report which had been ordered by the learned Magistrate himself. On 10th day a cryptic summoning order was passed without the benefit of report of investigation. Hence this revision.

4. Heard Sri Anurag Khanna, learned counsel assisted by Sri Syed Faheem Ahmad for the revisionist, Dr. S.B.Singh, learned counsel for the opposite party no. 2 and learned AGA for the State.

5. Learned counsel for the revisionist has submitted that Dr. Sandip Kumar Mukhopadhyay, the revisionist/accused is a respected scientist and businessman who has completed his doctorate in Polymer Science and Technology from the University of Kolkata in the year 2000. He is a resident of Kolkata and has never visited Allahabad or met the complainant prior to the institution of the present revision. He has also pointed out that the revisionist Dr. Sandip Kumar Mukhopadhyay is a partner in the business firm which manufactures Mastic Adhesive and Sealants of various grades used for thermal insulations, fire protection of Industrial Flooring. Revisionist has claimed that he has made 35 imports substitute for the Department of Defense and has also received various appreciation certificates from the Senior Staff Officers of Indian Navy and Navy Chief himself. He has also submitted that as a businessman he has contributed to the welfare of the sailors and their family and therefore he has received letters of thanks from the Vice Admiral Chief of Staff, Indian Navy for his contribution and charity work. Copies of which are annexed with revision.

6. Denying the allegations of complainant, learned counsel for the revisionist has submitted that from 2.11.2009 to 10.11.2009, the revisionist was in Goa. He went from Bombay to Goa on 2.11.2009 by flight no. IT-0512T. During 2.11.2009 to 8.11.2009, revisionist was residing in Bog Mallo Beach Resort. Revisionist was residing in Kenilworth Beach Resort Goa from 8.11.2009 to 10.11.2009. Copies of hotel receipts and vouchers have been submitted.

7. Learned counsel for the revisionist has also pointed out that the complainant somehow managed to lay his hand on the visiting card of the revisionist and he is now trying to misuse the same. He has contended that some person is playing mischief upon the revisionist with the help of complainant.

8. Learned counsel for the complainant/opposite party no. 2 has filed his counter affidavit disputing the claims of revisionist and reiterating the allegations of complaint. He has also filed the copy of the award/report of the sole arbitrator dated 4.3.2010 in the matter of arbitration proceedings between Sri Sandip Kumar Mukhopadhyay and Kamal Singh Bagreecha (since deceased) and Smt Uma Roy revealing that the revisionist has lost the connection with M/s Macrotech (India) Ltd. subsequent to civil/arbitration decision.

9. Learned counsel for the revisionist has admitted this fact by filing the application before this Court stating that M/s Macrotech (India) Ltd was dissolved by the court order and after dissolution of the said partnership firm the revisionist has established a new firm in the name of Ocean Marine Environment Coating Pvt Ltd. However, learned counsel for the revisionist has wondered as to how the complainant pretending to be hapless and poor person of Allahabad, managed to lay his hands on documents relating to the arbitration and other correspondence from Kolkata and submits that apparently the complainant is hand in gloves with some of his business rivals of Kolkata who are interested in creating mischief for revisionist on account of business rivalry.

10. Learned Magistrate passed order dated 3.8.2010 directing the Station House Officer, P.S. Jhunsi, Allahabad to conduct an investigation in to the matter in terms of Section 202 Cr.P.C before passing the impugned summoning order dated 9.12.2010. The police was further directed to submit its report by 30.9.2010. Surprisingly, no enquiry report was submitted by the police in compliance of this direction dated 30.8.2010. Learned Magistrate did not even refer to any police report in the impugned summoning order. Infact he failed to mention the fact of his previous order dated 3.8.2010 in the impugned summoning order. Here, it would be appropriate to quote Section 202 Cr.P.C. as amended by Act No. 25 of 2005 and made applicable w.e.f. 23.6.2006, as under:-

Section:-202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:....

11. Perusal of the above quoted provision would clearly show that it was brought by the amendment perhaps considering the fact that private criminal cases are being filed and accused persons residing far-away from the territorial jurisdiction of the courts are being put to harassment and that is why in order to curb the abuse of the process of the court sufficient enquiry is now mandated particularly in respect of the accused persons residing outside the territorial jurisdiction of the Magistrate.

12. Perusal of the complaint itself shows that prospective accused/revisionist is residing in Kolkata, therefore, it was incumbent upon the learned Magistrate to hold an enquiry in terms of the amended provision of Section 202 Cr.P.C. Learned Magistrate did order investigation by the police on 3.8.2010 but the imupgned order does not refer to any report of police. Copy of the order sheets annexed with the present revision reveals that on 3.8.2010 an order for investigation was passed by the learned Magistrate and a final argument on the point of summoning was heard on 30.11.2010. In between virtually on every fixed date either the learned Magistrate was not available or the advocates refrained from conducting any judicial work on account of strike. It is on 10th day i.e. on 9.12.2010 the impugned summoning order was passed.

13. Learned Magistrate ought to have insisted on submission of investigation report inasmuch as inquiry by Magistrate or investigation by police or by some other person is now the mandate of law. Magistrates do have the power and authority to demand such reports. Infact the summoning order should necessarily reflect the examination of such report if the police investigation had been ordered by Magistrate.

14. In the present case, learned Magistrate ordered the investigation but did not ensure the compliance of its own order and the impugned summoning order also does not reflect the compliance of the said order. Impugned order is totally silent on this score.

15. The record of this case also indicates that during course of enquiry the Magistrate did not participate in it in any manner. No questions were put to either the complainant or his witnesses in order to elicit the correct state of affairs. After the statements on oath are recorded, the Magistrate is required to apply his judicial mind to the facts of the case and the law applicable thereto to find out what offence is made out irrespective of the fact that other party at this stage is not present.

16. Hon'ble Supreme Court the time and again has observed that the summoning of accused in criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. In Pepsi Foods Vs Special Judicial Magistrate, (1997) 8 JT (SC) 705, Hon'ble Supreme Court has held 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. "

17. Similarly, in M. N. Ojha Vs Alok Kumar Srivastava, AIR 2010 SC 201, Apex Court held as under:-

"The case on hand is a classic illustration of non application of mind by the learned Magistrate. The learned Magistrate did not scrutinize even the contents of the complaint, leave aside the material documents available on record. The learned Magistrate truly was a silent spectator at the time of recording of preliminary evidence before summoning the appellants."

18. Thus, in view of the aforesaid legal position, it is incumbent upon Magistrates to ensure that the judicial process should not be an instrument of needless harassment. Visiting cards of any person are not the evidence of his physical presence at any place. Visiting cards can travel long distances in various ways. Learned Magistrate should have realised that the police challani cases are investigated by the police before the report under Section 173 Cr.P.C. is submitted. In complaint cases no one is present to watch the interest of prospective accused at initial stage. Therefore, it is duty of the Magistrates to ensure precise and fair enquiry in order to arrive at reasonable conclusion. His energetic participation at initial stage is required in order to obviate or reduce false implications.

19. In the present instance, participation of Magistrate was absolutely nil during inquiry,. No questions were put to witnesses. Evidence was recorded in a mechanical fashion. He did not wait for the result of enquiry by the police which he himself had ordered. He should have realised that the prospective accused is residing at long distance from the territorial jurisdiction of his court. Therefore, he was duty bound to be careful while summoning the accused.

20. Considering the facts and circumstances of the present case as well as the pronouncement of Apex Court, the impugned summoning order is not legally sustainable and is liable to be quashed. The Criminal revision is allowed. The impugned summoning order dated 9.12.2010 passed by Judicial Magistrate, Court No. 3, Allahabad is hereby quashed. The dispute is remanded back to the Magistrate with direction to obtain report of the police investigation which was ordered by him on 3.8.2010. He is also directed to record the statement of the complainant and his witnesses again for conducting the serious, precise and fair enquiry in order to arrive at just conclusion.

Copy of the order be sent to lower court for compliance within a fortnight.

Order Date :- 27.9.2013

RavindraKSingh