Jharkhand High Court

Anil Kumar Dash vs State Of Jharkhand on 5 April, 2023

                                         -1-         Cr.M.P. No. 1511 of 2010


       IN       THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr.M.P. No. 1511 of 2010
       Anil Kumar Dash
       @ Anil Kumar Das                               .....   ...    Petitioner
                                  Versus
      1. State of Jharkhand.
      2. Sudhanshu Sekhar @ Manoj
      3. Himanshu Sekhar @ Munna
      4. Shubhanshu Sekhar @ Nunu                     ..... ...      Opposite Parties
                               --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. P.P.N. Roy, Sr. Advocate.

      For the State            :        None.
      For the O.P. Nos. 2 to 4 :        Mr. Rakesh Kumar Sinha, Advocate.
                               ------

07/ 05.04.2023 On repeated calls, nobody has responded on behalf of the State.

2. Heard Mr. P.P.N. Roy, learned senior counsel appearing for the petitioner and Mr. Rakesh Kumar Sinha, learned counsel appearing for the O.P. Nos. 2 to 4.

3. This petition has been filed for quashing of the order dated 23.08.2010, passed by the learned Additional Judicial Commissioner, Fast Track Court-X, Ranchi, in Criminal Revision No. 141 of 2008, whereby the court has been pleased to dismiss the revision petition and affirmed the order dated 28.11.2008, passed in Complaint Case No. 709 of 2007, by which, the learned court was pleased to dismiss the complaint case under Section 203 of the Cr.P.C.

4. The prosecution case has been instituted on the basis of the Complaint petition filed by the complainant namely Anil Kumar Das (Petitioner herein) stating therein that he was married to Kumari Anuja @ Pushpi on 09.05.1997.

The complainant further stated in the complaint that earlier Comp. petition filed under Com. Petition no. 1008/2006 same was withdrawn by the complainant due to false assurance of accused persons on the ground of compromise but compromise has been filed. As such complainant has filed fresh complaint case for same relief and similar cause.

The complainant further stated in the complaint that on 10.05.1997 Kumari Anuja @ Pushpi went to in- laws with her husband (Complainant) and she returned to Ranchi with ornaments, rupees, bartan and cloths etc. on 13.05.97 and thereafter the complainant tried to bring his wife to lead conjugal life but she did

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not come to her husband house.

The complainant further stated in the complaint that whenever the complainant used to go to his sasural all the accused persons namely Shudhanshu Shekhara @ Manoj. Himanshu Shekhar @ Munna, Shubhanshu Shekhar @ Nunu and other used to get statement of the complainant recorded according to their will. The accused persons never sent the wife of the complainant with him and always used to demand money from the complainant which fact was being intimated to S.P. Chandiauli, U.P.

The complainant further stated in the complaint that the complainant used to lodge complaint to the Superintendent of Police, Chandauli, (UP) the S.P. Chandauli (U.P.) used to write the Superintendent of Police, Ranchi for taking legal action but no action of any kind was taken by the police against the accused persons.

The complainant further stated in the complaint that when no Bidagiri was made and the wife of the complainant refused to come with him then the complainant filed a case U/S 9 of the Hindu Marriage Act being Matrimonial Case No. 6 of 2000 in the court of District Judge, Kaimur at Bhabua for restitution of conjugal right.

The complainant further stated in the complaint that having learnt about the filing of the aforesaid Matrimonial Case No. 6/2000 then the wife of the complainant and his brothers with a common intention conspired each other and lodged an FIR, in Argora police Station, Ranchi being Doranda ( Argora) P.S. Case No. 207/2003 U/S 498(A) of Indian Penal Code and Section 3/4 of the Dowry Prohibition Act against the complainant, his father, mother, brother- in-law, bhaujai and sister. In this way all the family members were roped in this case to harass and humiliate them.

The complainant further stated in the complaint that in said case all the accused persons except the complainant were granted anticipatory bail and the complainant surrendered in the court of the learned Chief Judicial Magistrate, Ranchi and prayed for bail and he was released on bail.

The complainant further stated in the complaint that on 06.05.2006 was the date fixed in the aforesaid case and the complainant along with his father Angad Das, Uncle Bechan Das and Phupha Arjun Das had come to Ranchi to attend the court then the accused persons alongwith other at about 2:20 p.m. near the

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Kutchery Gate beat the complainant and abused him and by threatening to kill the complainant got his signature of the father, uncle and Phupha of the complainant over the said affidavit as witnesses and thereafter the accused persons signed over the same.

The complainant further stated in the complaint that the accused forcibly took the complainant in Red Colour Maruti Van being registration no. BR 14 F 6623 and confined him in a room and snatched Rs. 5,000/- from the complainant.

It is further stated in the Complaint petition that the complainant was confined in the room for two days and after great persuasion he was allowed to come out on the condition that he will not make any complaint to anybody. That after getting rid of wrongful confinement the complainant on 9.5.2006 went to the Kotwali P.S. to lodge the case where he was told to submit the written report to the Munsi and he was directed to come on the next date.

It is further stated in the Complaint petition that on the next day i.e., on 10.05.2006 the complainant again went to Kotwali P.S. where no action was taken at the behest of the accused persons and the statement of the complainant was taken and he was asked by the police to go since the accused persons were present there. They again took the complainant forcibly and confined him in a room for a day and was allowed to go on the condition that the complainant will not disclose anything regarding the occurrence.

It is further stated in the complainant petition that not only this the accused persons also threatened that if this matter will be reported to any person then on 08.06.2006 when the complainant would come to Ranchi for attending the court (as 8.6.2006 was the date fixed in this case) and who so ever will accompany him they will be done to death.

It is further stated in the Complaint petition that the accused persons are also threatening the uncle of the complainant who is living in Ranchi that if he co- operate the complainant then they will teach him the lesson.

It is further stated in the Complaint petition that on 15.5.2006 the complainant again went to Kotwali P.S. where he learnt that no action whatsoever has been taken by the police, and the complainant apprehends that the accused persons can use the said affidavit

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anywhere to cause damage to the complainant.

It is further stated in the concluding portion of the Complaint petition that the complainant also sent an application to the Senior Superintending of Police Ranchi giving details of the incidents and requested him to take legal action against the accused persons but no action has been taken against accused persons so far, and the accused persons are men of means and influential persons and as such there is danger of life and property of the complainant at the hands of the accused persons.

5. Mr. P.P.N. Roy, learned senior counsel appearing for the petitioner submits that the learned trial court as well as the learned revisional court has erred in dismissing the complaint petition and they have not proceeded in the correct spirit of Sections 202 and 203 Cr.P.C. He submits that on the solemn affirmation and two enquiry witnesses have supported the case, in spite of that the learned trial court has dismissed the complaint petition, which was affirmed by the learned revisional court in the revision petition. He further submits that the scope of Sections 202 Cr.P.C. is only limited to the effect that prima facie case has to be shown and if the enquiry witnesses and in the solemn affirmation, the prima facie case is made out, the learned court is bound to take cognizance and that procedure has not been followed. To buttress his submission, he relied in the case of S.N. Palanitkar & Ors. Versus State of Bihar & Anr., reported in AIR 2001 SC 2960, wherein the Hon'ble Supreme Court in para-15 has held as follows:-

"15. In case of a complaint under Section 200 Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complain-ant and his witnesses; if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground', used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction."

6. Relying on this judgment, Mr. Roy, learned senior counsel appearing for the petitioner submits that it has been held in aforesaid case

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that under Section 202 Cr.P.C., if the prima facie case is made out, the learned courts is required to take cognizance, however, the learned court has failed to appreciate the spirit of Sections 202 and 203 Cr.P.C. On the same line, he further relied in the case of Mahendra Saw @ Mahendra Kumar Sahu Versus The State of Jharkhand & Anr., reported in 2006 (1) JLJR 427. Para-5 of this judgment is quoted hereinbelow:-

"5. Learned Sessions Judge considered the law on the subject, while reversing the order of the Judicial Magistrate. I have perused the order of the Judicial Magistrate as well as the order of the Sessions Judge, reversing the said order of the Magistrate. A perusal of the order of the Judicial Magistrate shows that the Magistrate went beyond his jurisdiction in discussing the evidence at the enquiry stage by giving a finding that the evidence of the witnesses is found to be unbelievable and that the complainant could not have taken a job with the petitioner accused as he was a total stranger to her. Learned Sessions Judge in the revision rightly found that the Magistrate at the stage of enquiry could not go into the pros and cons of the evidence of the witnesses and that the settled principle of law is that the Court is only to find out at the stage of enquiry whether the materials, prima facie, make out an offence and if, prima facie, an offence is shown to have been made out on the Allegations, then the Magistrate is only expected to proceed with the enquiry and frame a charge and that at that stage, he cannot discuss the evidence and give a finding. The words, "sufficient grounds for proceeding" found in Section 203 Cr. P. C. clearly show that All that the Magistrate is expected to do is to see only whether there are sufficient grounds for proceeding against the accused for an offence and at that stage he cannot go into the truth or otherwise of the Allegations made in the complaint. The Magistrate should also keep in mind that the standard of proof required at the stage of enquiry is not the same, which is expected of the complainant during the trial. If there is prima facie, material to support the Allegation, which will show sufficient grounds for proceeding against the accused shown in the complaint, then the hands of the Magistrate is tied and he cannot but to proceed with the case and dispose it of according to law. The Sessions Judge rightly held that the

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Magistrate exceeded his jurisdiction by dismissing the complaint under Section 203 Cr. P. C. after discussing the evidence produced before him."

7. Relying on these two judgments, Mr. Roy, learned senior counsel appearing for the petitioner submits that the learned courts have erred in not taking the cognizance in spite of the prima facie materials available, in view of the solemn affirmation as well two enquiry witnesses.

8. On the other hand, Mr. Sinha, learned counsel appearing for the O.P. Nos. 2, 3 and 4 submits that the Co-ordinate Bench of this Hon'ble Court has been called upon the petitioner to file the statement of two enquiry witnesses by order dated 03.02.2020 and the matter was again adjourned to comply the earlier order on 20.07.2022 and further on 20.03.2023, in spite of that the statement of enquiry witnesses has not been brought on record. He submits that the allegations are that on the date of occurrence, the accused persons were present in the Civil Court on 06.05.2006 and on that date, they have tried to abduct the petitioner. He further submits that the petitioner was present in the civil court for appearance before a court, which was pending and the allegations are that from the civil court premises, the petitioner has been abducted on 06.05.2006. He further submits that learned court that's why has looked into the order passed in the said criminal case dated 06.05.2006 and found that the petitioner was represented under Section 317 Cr.P.C. and meaning thereby, the petitioner was not present in the Court and that's why the learned court has been pleased to reject the contention, and not taken the cognizance. He further submits that Sections 202 and 203 Cr.P.C. are meant for enquiry into the cases and find out the prima facie case. To buttress his argument, he relied in the case of Birla Corporation Ltd. Versus Adventz Investments and Holdings Ltd. & Ors., reported in (2019) 16 SCC 610, wherein the Hon'ble Supreme Court in paras-25 to 30 held as follows:-

"25. Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any.

Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated

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under Section 204 CrPC. The purpose of the enquiry under Section 202 CrPC is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused.

26. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 CrPC or whether the complaint should be dismissed by resorting to Section 203 CrPC on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 CrPC, the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused.

27. In National Bank of Oman v. Barakara Abdul Aziz [National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488 : (2013) 2 SCC (Cri) 731] , the Supreme Court explained the scope of enquiry and held as under : (SCC pp. 491-92, para 9) "9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not.

Investigation under Section 202 CrPCis different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:

(i) on the materials placed by the complainant before the court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

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(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have."

28. In MehmoodUlRehman v. Khazir Mohammad Tunda [MehmoodUlRehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124] , the scope of enquiry under Section 202 CrPC and the satisfaction of the Magistrate for issuance of process has been considered and held as under : (SCC pp. 423-24, paras 2-3) "2. Chapter XV CrPC deals with the further procedure for dealing with "Complaints to Magistrate". Under Section 200 CrPC, the Magistrate, taking cognizance of an offence on a complaint, shall examine upon oath the complainant and the witnesses, if any, present and the substance of such examination should be reduced to writing and the same shall be signed by the complainant, the witnesses and the Magistrate. Under Section 202 CrPC, the Magistrate, if required, is empowered to either inquire into the case himself or direct an investigation to be made by a competent person 'for the purpose of deciding whether or not there is sufficient ground for proceeding'. If, after considering the statements recorded under Section 200 CrPC and the result of the inquiry or investigation under Section 202 CrPC, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he should dismiss the complaint, after briefly recording the reasons for doing so.

   3.     Chapter     XVI    CrPC      deals    with
   "Commencement         of   Proceedings    before

Magistrate". If, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, the Magistrate has to issue process under Section 204(1) CrPC for attendance of the accused."

29. Reiterating the mandatory requirement of application of mind in the process of taking cognizance, in Bhushan Kumar v. State (NCT of Delhi) [Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424 : (2012) 2 SCC (Cri) 872] , it was held as under : (SCC p. 428-29, para 11) "11. In Chief Enforcement Officer v. Videocon

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International Ltd. [Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471] (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as 'it merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.' It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code."

30. Under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused."

9. Relying on this judgment, learned counsel appearing for the O.P. Nos. 2, 3 and 4 submits that the learned court has rightly dismissed the complaint petition and not taken the cognizance.

10. In reply, Mr. Roy, learned senior counsel appearing for the petitioner submits that the judgment relied by learned counsel appearing for the O.P. Nos. 2, 3 and 4 is helping the petitioner, in light of para-26 of the said judgment.

11. In view of the above facts and submissions of the parties, the court has gone through the materials available on record including the two

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impugned orders and finds that admittedly allegations are made in the complaint that on 06.05.2006, accused persons abducted the petitioner and the learned court has found that on that day, in a proceeding before the civil court, the petitioner had appeared through representation under Section 317 Cr.P.C. and he was not present in the civil court. In that view of the matter, the learned court has come to the conclusion that the story is concocted. The line of argument advanced by learned counsel appearing for the petitioner is not in dispute. It is well settled that the enquiry under Section 202 Cr.P.C. is meant for coming to the prima facie case, however, at the same time, it is the duty of the learned court to find out the truthfulness of the case. In the case in hand, on perusal of the order dated 06.05.2006, passed in G.R. No. 2143 of 2003, the petitioner was represented under Section 317 Cr.P.C. and said section is meant for representation through the lawyer. If the case is that the petitioner was present before the court, there was no need of filing a petition under Section 317 Cr.P.C. The court comes to the conclusion that the learned court has rightly not taken the cognizance. It is well settled that by way of setting up two enquiry witnesses, the criminal case is not required to be put into motion and in this regard, reference may be made to the case of "Pepsi Food Limited and Another- versus- Special Judicial Magistrate & Others, reported in (1998) (5) SCC 749", wherein 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

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allegations or otherwise and then examine if any offence is prima facie committed by all or any f the accused."

12. There are concurrent findings of two courts and there is no injustice done to the petitioner. It is well settled that there if no injustice is done, in the garb of Section 482 Cr.P.C., the second revision is not maintainable.