Indrajeet Kaur @ Monalisha vs The State Of Jharkhand
2021 Latest Caselaw 3765 Jhar

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      IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 2077 of 2015

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1.Indrajeet Kaur @ Monalisha, w/o Birendra Kashyap

2.Birendra Kashyap, s/o late Girdharilal Kashyap Both resident of Qr. No.8, Block No.7, Shiv Path (Near Ganesh Apartment), Bhatia Basti, PO and PS-Kadma, Town Jamshedpur, District- Singhbhum East. ..... Petitioners

-- Versus --

1.The State of Jharkhand

2.Rekha Mishra, w/o Amrendra Mishra, resident of 260-E, Kagal Nagar, Sonari, PO and PS Sonari, Town Jamshedpur, District-Singhbhum East ...... Opp. Parties

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PRESENT:

HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners      :- Mr. A.K. Das, Advocate
For the O.P.No.2         :- Mr. Rupesh Singh, Advocate
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C.A.V. on 23.09.2021                      Pronounced on 04/10/2021

Heard Mr. A.K. Das, the learned counsel appearing on behalf of the petitioners and Mr. Rupesh Singh, the learned counsel appearing on behalf of the Opposite Party 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. The petitioners have filed this petition for quashing the entire criminal proceeding and orders dated 18.08.2015 and 31.08.2015 in connection with Sonari P.S.Case No.50 of 2015, G.R.No.923 of 2015, pending in the court of learned Judicial Magistrate 1st Class, Jamshedpur, whereby warrant of arrest and process under section 82 Cr.P.C. I.A.

No.6911 of 2015 was filed for challenging the order dated 28.11.2015 whereby process under Section 83 Cr.P.C has been issued against the petitioners. The said I.A was allowed by order dated 27.01.2016 and the said I.A was directed to be treated as a part of the main application. All these orders have been challenged by the petitioners.

4. The complaint was filed stating therein that-

"The husband of the complainant was employee of Tata Steel Ltd., retired from service in the month of February, 2015. The complainant/informant alleged that Indrajeet Kaur @ Monalisha run a beauty parlour in the name and style of Monalisha Beauty Parlour, she further alleged that she used to visit occasionally at beauty parlour therefore complainant and Monalisha became friend. She further alleged that Birendra Kashyap who is husband of Monalisha also used to come at Beauty Parlour where both wife and husband learnt that two sons of the complainant are residing abroad and they are earning handsome salary. It is further alleged that once husband of Monalisha told the complainant, he runs an investment consultant and deals in shares, debentures and mutual funds. She further alleged that both the accused persons came to the house of the complainant some times in the month of October, 2012 and that time complainant and her husband both were present at home, she further alleged that both the accused persons narrated before them that they were not successfully run the beauty parlour only but also run the investment consultancy for which their other clients are receiving handsome returns and both the accused persons assured to them that they would also get return minimum 14% on the investment made by them. She further alleged, initially she invested Rs.5,00,000/- (Five lacs) in mutual funds and shares through accused person. She further alleged that she invested Rs.69,00,000/- (Sixty nine lacs) through accused person in the month of November, 2012 to December, 2015. She further alleged that whenever the husband of he complainant asked the accused person to give the share certificates, debentures certificates and also mutual funds certificates, they always kept saying that they are not in physical shape but have been put in DMAT account of investment firm and also assured the complainant that her money is absolutely safe and investments made by her is fetching very good returns and has approximately touched nearly Rs.90,00,000/- (Ninety lacs). She further alleged that when the husband of the complainant retired on 1st February, 2015 and thereafter complainant needed money she went to the accused no.1 and demanded money upon which accused no.1 flatly

refused to return the amount and told she is a BJP leader holding a high position within the party and she has got top level connection with the police and threaten to the complainant to not asked regarding certificate and amount. She further alleged that accused no.2 gave to cheques on 20.02.2015 in favour of complainant and her husband amounting Rs.65,000/- (sixty five thousand) and when the cheques were deposited, the cheques returned with endorsement that the account have been closed. Thereafter one the complainant visited with the accused demanded the money and certificate they refused and slapped her and snatched golden chain valued nearly Rs.1,50,000/- (one lac fifty thousand). Hence this FIR.

5. Mr. A.K. Das, the learned counsel appearing for the petitioners submitted that the petitioner namely, Indrajeet Kaur @ Monalisha has filed a complaint case against the complainant of the present case and her husband which was registered as C-I Case No.353/2015 dated 13.02.2015 and the same was transferred to the Kadma Police Station on 13.02.2015 but the same was registered on 21.03.2015 by the Officer Incharge of Kadma Police Station after 36 days. He further submitted that the complainant of this present case namely, Rekha Mishra took a friendly loan of a sum of Rs.35,000/- eight years back from Indrajeet Kaur who is petitioner no.1 and the petitioner no.1 handed a cheque to the complainant as a security of the amount. The cheque was not returned to petitioner no.1. He further submitted that the complainant of this case borrowed Rs.5 lakhs (five lakhs) from the petitioner no.1 approximately five years back but did not return the same. The complainant all of a sudden on 06.12.2014 sent a legal notice through her counsel and demanded Rs.69,94,045/-. The petitioner replied to the same. He further submitted that all of a sudden on 11.02.2015 at about 4:00 p.m the complainant and her husband along with anti-social elements forcibly entered into beauty parlour of the petitioner no.1 and slapped her and they also threatened of dire consequences. As the complaint was filed by the petitioner no.1 before the Chief Judicial Magistrate which was registered as Complaint Case No.353/2015 which was sent to the police and registered on 21.03.2015. He further submitted that O.P.No.2 has also filed one complaint case which was numbered as C-I No.4099/2014 and during pendency of that complaint case this case has been filed which is against the mandate of law. He further submitted that the learned Magistrate has transferred the

complaint case under section 156(3) Cr.P.C. Pursuant to that, this case has been registered as Sonari P.S.Case No.50/2015, G.R.No.923/ 2015. He further submitted that the case of the petitioners is fully covered in view of the judgment rendered by the Hon'ble Supreme Court in the case of "Priyanka Srivastava and Another v. State of Uttar Pradesh and Another", (2015) 6 SCC 287. Paragraph nos.29 and 30 of the said judgment are quoted hereinbelow:

"29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.

30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores."

6. Relying on this judgment, he submitted that the learned Magistrate without applying the judicial mind has sent the same before the concerned court and in that view of the matter this proceeding is required to be quashed. On the point of second complaint, he relied in the case of "Md. Hakim Ansari v. State of Jharkhand", 2007 (2) JLJR 117. Paragraph no.11 of the said judgment is quoted hereinbelow:

"11. The controversy as to whether the second complaint on the same facts is permissible, has been finally settled in the case of Poonam Chand Jain & Anr., vs. Fazru 2005(1) East. Cr.C. 118(SC) wherein the Supreme Court while elaborately dealing with the issue and has held that second complaint on the same set of facts could be entertained but

only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the complaint or where it was manifestly absurd or unjust."

7. He further relied in the case of "Dr. Krishan Kumar v. Sunil", (1993) 2 Crimes (HC) 603 of Punjab and Haryana High Court. Paragraph nos.7 and 8 of the said judgment are quoted hereinbelow:

"7. The learned counsel for the petitioner submitted that while filing the second complaint Annexure P-1, the respondent did not disclose the fact that her first complaint had been dismissed in default by the Chief Judicial Magistrate nor she mentioned any special circumstances justifying the filing of the fresh complaint on the same facts and in these premises, the second complaint was liable to be quashed. In Support of his argument, he placed reliance on the case of Darshan Singh v. Manjit Kaur 2. In this case first complaint was dismissed in default and this fact was not disclosed in the second complaint nor special circumstances were given which could justify the filing of fresh complaint and the complaint was thus quashed.

8. A perusal of the complaints Annexure P-1 and P-3 shops that the second complaint was filed on the same facts and was rather a true copy of the first complaint. This fact was not disclosed that earlier compliant was dismissed for nonappearance of the complainant and no exceptional circumstance was mentioned which could furnish a valid ground for filing of the second complaint. The second complaint was thus a gross abuse of the process of the court and was not made with the object of furthering the interest of justice."

8. Relying on these judgments, he submitted that second complaint was bad in law and the entire criminal proceeding is required to be quashed by this Court. He further submitted that the order dated 18.08.2015 is bad in law as there is no execution report and only on the prayer of the I.O, this has been passed. He further submitted that the order dated 31.08.2015 is cryptic in nature and no satisfaction of the Magistrate is recorded. He submitted that the order dated 28.11.2015 whereby section 83 process has been directed to be issued is also bad in law as the order dated 31.08.2015 under section 82 Cr.P.C itself is bad. On these grounds, he submitted that this petition is fit to be allowed.

9. Per contra, Mr. Rupesh Singh, the learned counsel appearing on behalf of the Opposite Party no.2 submitted that on concocted facts and circumstances the relief sought for by the petitioners are not maintainable and is fit to be rejected inasmuch as the petitioners are trying to put forth their plausible defense for quashing of the entire criminal case which is not maintainable in the light of various judgments of this High Court and Hon'ble Supreme Court. By way of referring the

F.I.R dated 01.04.2015 he submitted that there are allegations against the petitioners. He submitted that the complaint filed by the petitioners being C/1 Case No.353/2015 leading to Kadma P.S.Case No.39/2015 dated 21.03.2015. The police submitted the Final Report stating that the allegation to be false and concocted and the learned court has issued notice dated 21.08.2015 for accepting the Final Form. He further submitted that the O.P.No.2 at some point of time has approached the Advocate in the concerned court below for legal advice and necessary action to be initiated to remedy the wrong committed against her by the petitioners. He submitted that the concerned Advocate under good faith had taken the initials of the answering opposite party for legal measures and utilized the same for filing complaint case being C/1 Case No.4099/2014 without instruction and consent of the opposite party. He further submitted that as soon as the answering Opposite party gathered knowledge of the aforesaid complaint case she immediately filed the petition in complaint case before the learned court for withdrawal of the same and accordingly the learned court by order dated 31.07.2015 after examining the opposite party dismissed the aforesaid complaint case for the reasons contained therein. He further submitted that the case of "Priyanka Srivastava" (supra) is not applicable in the facts and circumstances of the present case. He also relied on paragraph nos.21 and 22 of the said judgment. Paragraph nos.21 and 22 of the said judgment are quoted hereinbelow:

"21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a three-Judge Bench in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, had to express thus: (SCC p. 258, para 17) "17. ... It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173."

22. In Anil Kumar v. M.K. Aiyappa, the two-Judge Bench had to say this: (SCC p. 711, para 11) "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the

Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."

10. I.A. No.351 of 2019 has been filed on behalf of the Opposite party no.2 for early hearing and disposal of this Cr.M.P wherein it has been stated that the trial court has taken cognizance against the petitioners on 24.02.2016. The petitioners have not challenged the cognizance order and in view of this, the entire proceeding in respect to Sonari P.S.Case No.50 of 2015, G.R.No.923 of 2015, pending in the court of learned Judicial Magistrate 1st Class, Jamshedpur cannot be quashed. The Opposite party no.2 has already withdrawn the earlier complaint and the reasons have been explained in paragraph no.10 of the counter affidavit. Since the cognizance order is not under challenge, the judgments relied on the point of second complaint are not helping the petitioners. Thus, the order of quashing the entire criminal proceeding are not fit to be passed in this case. The said prayer is rejected.

11. On perusal of the order dated 18.08.2015, it transpires that there is no execution report of summons and the bailable warrant and merely on the prayer of the I.O, the said order of warrant of arrest has been passed against the petitioners which is against the mandate of law. By order dated 31.08.2015 processes under section 82 Cr.P.C has been issued and the learned Magistrate while passing such order was required to record his satisfaction that the conditions laid down in the law for issuing warrant of arrest has been fulfilled and the procedure has been complied with. This satisfaction of the Court should be reflected in the order itself, to be gathered from the record, then only warrant of arrest can be issued. The Court has to prima-facie be satisfied that the person accused of committing a non-bailable offence is also evading his arrest. There has to be material before the Court to reach at the aforesaid

conclusion. Without recording such subjective satisfaction to the effect that the accused is also evading his arrest, which should be on the basis of the materials placed before the Court, warrant of arrest cannot be issued. This satisfaction can be derived from the police paper/ case diary. Mere absence of the accused cannot give rise to a presumption that he is evading arrest, which in turn cannot be the sole ground to issue warrant of arrest. Thus, this order is bad in law. When the order passed under section 82 Cr.P.C itself is bad in law, the impugned order dated 28.11.2015 with regard to section 83 Cr.P.C will also not survive.

12. Accordingly, the impugned orders dated 18.08.2015, 31.08.2015 and 28.11.2015 are quashed.

13. The matter is remitted back to the concerned court to proceed afresh in accordance with law.

14. The instant petition [Cr.M.P. No.2077 of 2015] stands allowed in part, in the above terms and disposed of.

15. I.A. No.351/2019 filed for early hearing is disposed of.

( Sanjay Kumar Dwivedi, J) Jharkhand High Court, Ranchi Dated : 04/10/2021 SI/ N.A.F.R.,