Jharkhand High Court
Arun Kumar Singh vs The State Of Jharkhand on 21 February, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 794 of 2020
1. Arun Kumar Singh
2. Mrs. Pushpa Singh
3. Satya Prakash ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Fidaur Rahman ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Nilesh Kumar, Advocate
For the State : Ms Nehala Sharmin, A.P.P.
For the O.P. No. 2 : Mr. Samir Kumar Lall, Advocate.
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06/ 21.02.2022 Heard Mr. Nilesh Kumar, learned counsel appearing for the
petitioners, Ms. Nehala Sharmin, learned A.P.P. for the State and Mr.
Samir Kumar Lall, 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 entire criminal proceedings including the order dated
16.08.2019 passed by the learned S.D.J.M., Ranchi, whereby cognizance
against the petitioners under Section 420 of the Indian Penal Code has
been taken, in connection with Complaint Case No. 3531 of 2018,
pending in the court of learned S.D.J.M., Ranchi.
4. The O.P. No. 2 has filed the present complaint case in the
year 2018 for the alleged occurrence of the year 2015-16, stating therein
that he entered into an agreement with the petitioner No. 2 for
construction work, a schedule was given of construction for which
allegedly the petitioner no. 2 had to pay Rs. 37 lacs after completion of
agreed work as per the payment terms agreed between the parties. It has
been alleged in brief that some work has been done but payment has not
been made in accordance with the work, though it has further been
accepted that 12 lacs has been received by the complainant but rest
amount of construction has not been paid. It has further been stated that in
the month of January, 2016 and July 2016 the accused persons were not
present at the site and the complainant had constructed 90% of the
construction work. It has been alleged in the complaint case that though
the complaint initiated work at war footing but the accused No. 1 has
mentioned in the complaint is very reluctant from the beginning. In para-9
he has stated that work of construction over both grounds as well as first
floor, both roofs have been casted with brick work and thereafter several
meetings have been made, but the payment has not been made. When
some pressure of request created, the complaint had been beaten by
accused along with 4/5 persons, accordingly, the complaint case was filed.
5. Mr. Nilesh Kumar, learned counsel appearing for the
petitioners submits that the cognizance order is cryptic one. He submits
that there is no compliance of Section 204 Cr.P.C in passing the said
order. He further submits that the allegation is purely civil in nature and
for that the case has been registered under the provisions of Indian Penal
Code. He further submits that in the complaint case, in para-8, it has been
disclosed that 90% work has been completed. He also submits that so far
as the petitioner Nos. 1 and 3 are concerned, they have played no role in
the agreement, however, cognizance against them has also been taken,
however, the agreement is between petitioner No. 2 and O.P. No. 2 only.
Accordingly, he submits that the present case is fully covered in the light
of the Judgment of the Hon'ble Supreme Court in the case of Indian Oil
Corporation Versus NEPC India Ltd. & Ors., reported in (2006) 6 SCC
736.
6. Mr. Samir Kumar Lall, learned counsel appearing for the O.P.
No. 2 by way of referring the deposition of enquiry witness No. 1,
submits that 12 lacs has already been paid to the O.P. No. 2, however,
90% work has already been completed. He also submits that Rs. 14.68 has
not been paid to the O.P. No. 2.
7. The Court has perused the cognizance order. It has not been
disclosed that as to how the cognizance has been taken against the
petitioner Nos. 1 and 3, rather the subject matter of dispute is only
between petitioner No. 2 and O.P. No. 2.
8. Sub-section (1) of Section 204 provides that if in the opinion
of a Magistrate, who is taking cognizance, there are sufficient ground for
proceeding, then he has to issue summons or warrant in the appropriate
case, as envisaged in Section 204(1)(a)(b).
9. From the reading of the aforesaid Section, it is crystal clear
that the application of mind must be reflected in the order of taking
cognizance. The order should not be mechanical. Magistrate has to
mention at least that there are sufficient materials to proceed against the
persons and what are the prima facie materials to proceed against them.
10. In the case in hand, there is no disclosure of the fact that as to
how the petitioner Nos. 1 and 3 are responsible for an agreement, which
has been executed between the petitioner No. 2 and O.P. No. 2. Moreover,
prima facie it appears that the case is arising out of an agreement for that
the criminal proceeding is an abuse of the process of law.
11. In view of the above, the cognizance order is not in
accordance with law. Accordingly, the order dated 16.08.2019 passed by
the learned S.D.J.M., Ranchi, whereby cognizance against the petitioners
under Section 420 of the Indian Penal Code has been taken, in connection
with Complaint Case No. 3531 of 2018, pending in the court of learned
S.D.J.M., Ranchi, is hereby, quashed.
12. The matter is remitted back to the concerned Court to proceed
afresh in accordance with law.
13. This criminal miscellaneous petition stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
