Iliyas Khan vs The State Of Jharkhand
2021 Latest Caselaw 4514 Jhar

     IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr.M.P. No. 932 of 2020

      Iliyas Khan                                      .....   ...     Petitioner
                                   Versus
      1. The State of Jharkhand.
      2. Afshana Parveen                              ..... ...    Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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      For the Petitioner        :        Mr. Abhay Kumar Chaturvedi, Advocate
      For the State             :        Mrs. Lily Sahay, A.P.P.
      For the O.P. No. 2        :        Mr. Anurag Kashyap, Advocate.
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07/ 01.12.2021      Heard Mr. Abhay Kumar Chaturvedi, learned counsel

appearing for the petitioner, Mrs. Lily Sahay, learned A.P.P. for the State and Mr. Anurag Kashyap, learned counsel appearing for the O.P. No. 2.

2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. This criminal miscellaneous petition has been filed for quashing of the order dated 15.04.2019 passed by the learned Judicial Magistrate, 1st Class-cum-Civil Judge (Jr. Division)-IX, Palamau including the entire criminal proceeding, in Complaint Case No. 437 of 2018, pending in the Court of learned Judicial Magistrate, 1st Class, Palamau.

4. The case was instituted on the basis of protest petition filed by the O.P. No. 2, which was numbered as Protest-cum-Complaint Case No. 437 of 2018 stating therein that the marriage of the complainant was solemnized with Iliyas Khan as per Muslim rites and rituals. After marriage she went to her sasural and resided peacefully for some time thereafter her husband, mother in law, sister in law and brother in law started demand of a sum of Rs. 50,000/-. The informant informed her parents and also informed that her parents are poor person and they ae not in a position to satiate their demand.

The complainant has further stated that all the accused persons started torturing and assaulting her and also they were not providing food to her. On 1.12.2017 they kept all the belongings of the complainant and ousted her from the house. The complainant went to her parents and narrated all these things to her parents. The accused persons gave her call and called her at Bari.

The complainant has further stated that she along with her parents came to her Bari there 20-25 persons were already present there, her in laws again abused her and demanded a sum of Rs. 50,000/- which was due otherwise they will give her talak today. They had already prepared a paper and they forcibly took her signature on that paper.

The complainant has further stated that about this she informed to the police but no action was taken by the police, then on 20.3.2017 she submitted an application before the Superintendent of Police, Palamau but no action was taken on that basis thereafter she had filed the complaint case. The complainant has also stated that when the accused persons came to know that on 20.3.2017 she has filed an application before the Superintendent of Police then on 29.5.2017 they all on a Bolero vehicle came to the house of the informant assaulted her and threatened to kill if she will lodge any case against them. She has also stated that the Investigating Officer is not recording the statement of informant and witnesses properly and he is also not properly investigating the case. The complainant has raised her suspicion that the Investigating Officer in connivance with the accused persons is not investigating the case properly.

5. Mr. Abhay Kumar Chaturvedi, learned counsel appearing for the petitioner submits that initially the case was investigated by the police and the police submitted chargesheet, stating therein the lack of evidence and thereafter protest petition was filed. He submits that on the basis of protest petition, the learned Court below has taken cognizance against the petitioner, who happens to be the husband of O.P. No. 2. He further submits that Section 204 Cr.P.C. is meant for issuance of process, which has not been followed in terms of the various judgments of this Court as well as the Supreme Court.

6. Learned counsel has relied upon a judgment of the Hon'ble Supreme Court in the case of "S.M.S. Pharmaceuticals Ltd. -versus- Neeta Bhalla, reported in (2005) 8 SCC 89, wherein the Hon'ble Supreme Court in Para-5 has held as follows:-

"5. Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words "after considering" and "the Magistrate is of opinion that there is no sufficient ground for proceeding". These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to

them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground of proceeding". The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed."

7. He further relied upon a judgment of the Hon'ble Supreme Court in the case of "M/s GHCL Employees Stock Option Trust- versus- M/s India Infoline Limited, reported in [2013 (2) East Cr. C. 326 (SC)", wherein the Hon'ble Supreme Court has held that before issuing summons the Court has to record its satisfaction that prima-facie case is made out against the accused. According to this Court, this is the satisfaction as envisaged under Section 204 Cr.P.C. and not under Section 190 Cr.P.C. This satisfaction has to be recorded only for the purpose of issuing process. The Magistrate has to see whether there are any materials to proceed against the accused person. Consideration for taking cognizance is different than that of issuing process. One is directed towards the offence and the other is towards the person. This cannot be mixed, even if a composite order is passed.

8. Mr. Anurag Kashyap, learned counsel appearing for the O.P. No. 2 submits that there is no illegality in the impugned order and the Trial Court after looking into the SA and the enquiry witness has taken the cognizance against the petitioner.

9. This court has perused the cognizance order dated 15.04.2019, from which, it transpires that the Court has not recorded the reasons why the inquiry report has not been accepted. The issuance of the summon against a person is serious action. It has been held in the case of "Pepsi Food Limited and Another- versus- Special Judicial Magistrate

& Others, reported in (1998) (5) SCC 749" the Hon'ble Supreme Court in para-28 has observed as follows:-

"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 scrutinize 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."

10. This proposition has also been reiterated by the Hon'ble Supreme Court in the case of "Ramdev Food Products Private Limited- versus- State of Gujrat, reported in (2015) 6 SCC 439".

11. The order taking cognizance under Section 190 Cr.P.C. and Order issuing process under Section 204 Cr.P.C. can very well a composite order but as observed, the application of mind would be different in both cases. The Magistrate is well within his jurisdiction to differ with the final report and to take cognizance against the accused, but in such a situation, the learned Court is required to look into the materials available before him and the same has to be disclosed in the impugned order. But in the present case, the learned Magistrate has not disclosed what are the prima facie materials against the petitioner to proceed against him. The summoning order is a serious order, which cannot be passed in a mechanical way. This Court found that the summoning order has been passed in a mechanical manner without recording the satisfaction and as to what are the bare minimum materials available on record.

12. This court has no other alternative but to set aside the impugned order dated 15.04.2019 and remit back the matter to the concerned Court for passing a fresh order under Sections 190 Cr.P.C. and 204 Cr.P.C. in accordance with law.

13. Accordingly, the impugned order dated 15.04.2019 passed by

the learned Judicial Magistrate, 1st Class-cum-Civil Judge (Jr. Division)- IX, Palamau, in Complaint Case No. 437 of 2018, pending in the Court of learned Judicial Magistrate, 1st Class, Palamau, is hereby, set aside and matter is remitted back to the concerned Court.

14. This criminal miscellaneous petition is allowed in the above terms.

(Sanjay Kumar Dwivedi, J.) Amitesh/-