Bidya Sagar Kumar @ Bidya Sagar ... vs The State Of Jharkhand
2023 Latest Caselaw 2683 Jhar

                                          1                       Cr.M.P. No.2760 of 2022




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 2760 of 2022


                 Bidya Sagar Kumar @ Bidya Sagar Kumbhkar, aged about 58 years,
                 s/o late Nilkanth Kumhar, r/o Kumhardih, Govindpur, P.O. & P.S.-
                 Govindpur, Dist. Dhanbad, Jharkhand
                                                  ....              Petitioner


                                        Versus

                 1. The State of Jharkhand
                 2. Sanjay Kumar Jha, aged about 51 years, s/o- Krishnadeo Jha,
                    r/o- Karmatand, , P.O. & P.S.- Govindpur, Dist. Dhanbad,
                    Jharkhand
                                           ....               Opp. Parties



                                        PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioner : Ms. Megha Priya, Advocate : Mr. Aditya Kumar Jha, Advocate : Ms. Shruti Shrestha, Advocate For the State : Mr. Satish Prasd, Addl. P.P.

      For O.P. No.2             : Mr. Sanjay Prasad, Advocate
                                .....

By the Court:-

          1.       Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 482 Cr.P.C. with a prayer

for quashing the entire criminal proceeding of Complaint Case

No. 1687 of 2018 along with the order dated 18.06.2022 passed in

Cr. Revision No. 52 of 2022 whereby and where under, the

learned Sessions Judge, Dhanbad was pleased to partly allow the

Cr. Revision No. 52 of 2022 and also prays for quashing the order

dated 05.01.2022 whereby and where under, the learned Judicial

Magistrate 1st Class, Dhanbad has taken cognizance for the offence

punishable under Sections 406, 420, 379, 323 and 506 of Indian

Penal Code in connection with Complaint Case No. 1687 of 2018.

3. The allegation against the petitioner is that on 04.06.2018 the

petitioner and the co-accused persons surrounded the

complainant while the complainant was returning riding his

motorcycle. The petitioner and others assaulted the complainant,

threatened him, criminally intimidated him causing alarm in his

mind and snatched away Rs.5,000/- from his pocket and also

committed theft of gold ring worth Rs.20,000/- and the reason for

the said assault was that the petitioner took Rs.29,00,000/- but did

not repay the same and when the complainant demanded back his

money, this occurrence was committed.

4. The learned Judicial Magistrate 1st Class, Dhanbad vide order

dated 05.01.2022 found prima facie case for the offence punishable

under Sections 406, 420, 379, 323 and 506 of Indian Penal Code.

5. The petitioner filed Cr. Revision No. 52 of 2022 in the court of

the learned Sessions Judge, Dhanbad. The learned Sessions Judge,

Dhanbad held that the offence punishable under Section 420 of

Indian Penal Code is not made out and allowed the revision in

part by setting aside the cognizance and issuing process in respect

of the offence punishable under Sections 420 of Indian Penal

Code.

6. It is submitted by the learned counsel for the petitioner that the

petitioner and the opposite party no.2 were good friends and in

good business terms having harmonious relationship but

indifferences occurred between them due to some business

transaction as a result of which this complaint has been instituted

with a mala fide intention. It is next submitted by the learned

counsel for the petitioner that the complaint had been instituted to

transform the case of money dispute which is purely of civil

nature into a criminal case and no medical report was brought on

record. Relying upon the judgment passed by a coordinate Bench

in the case of Amresh Kumar Dhiraj & Ors. vs. State of

Jharkhand in Cr.M.P. No. 2744 of 2013, paragraph no.22 and 23 of

which reads as under:-

"22. 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. This application of mind must be reflected in the order itself. 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. He need not pass a detail judgment evaluating the materials, which are before him. The detail reasons as to why he is taking cognizance or issuing process are not to be mentioned but at least what are the bare minimum prima- facie materials against the accused petitioners should be mentioned in the order issuing summon and prima facie what offence is alleged, in the order taking cognizance.

23. Applying the aforesaid principle, while going through this impugned order, I find that though the Magistrate has mentioned that there are statements of the witnesses, but what are the prima-facie materials to proceed against these petitioners and others have not been whispered. In a most mechanical manner, in one line, this impugned order has been passed summoning the accused. The Hon'ble Supreme Court in the case of "S.M.S. Pharmaceuticals Ltd." and "Ramdev Food Products Private Limited" (supra) has held that summoning an accused is a very serious matter and has got far reaching implications on the person who has been summoned.

Thus, a serious order, i.e. summoning order should not be issued casually in a mechanical manner. I find that the order taking cognizance and the summoning order, in this case, is passed in a most casual manner without recording his satisfaction and as to what are the bare minimum materials available on record. I also find that the court has taken

cognizance against the accused, which is not the mandate of law. As mentioned earlier cognizance is to be taken against an offence and warrant/ summon is to be issued against accused. Further, the nature of satisfaction will also have to be different while passing both the orders.

The facts, which appear before the Magistrate, have to be bifurcated by him, (i) offence centric (ii) person centric. The offence centric fact will be the basis of the order taking cognizance under Section 190 Cr.P.C. and person centric fact to be the basis of order under Section 204 Cr.P.C."

It is submitted by the learned counsel for the petitioner that the

Magistrate has not mentioned what are the prima facie materials to

proceed against the petitioner and others and in a most

mechanical manner in one line this impugned order has been

passed summoning the accused.

7. Hence, it is submitted that entire criminal proceeding of

Complaint Case No. 1687 of 2018 along with the order dated

18.06.2022 passed in Cr. Revision No. 52 of 2022 and the order

dated 05.01.2022 passed by the Judicial Magistrate 1st Class,

Dhanbad be quashed and set aside.

8. Learned Additional Public Prosecutor and the learned

counsel for the opposite party no.2 on the other hand vehemently

opposes the prayer for quashing the entire criminal proceeding of

Complaint Case No. 1687 of 2018 along with the order dated

18.06.2022 passed in Cr. Revision No. 52 of 2022 and the order

dated 05.01.2022 passed by the Judicial Magistrate 1st Class,

Dhanbad and submits that the learned Judicial Magistrate 1st

Class, Dhanbad has mentioned the materials in no uncertain

terms; after going through the complaint, statement on solemn

affirmation of the complainant and the statement of the four

inquiry witnesses and after considering the materials which has

come through them has come to the conclusion that prima facie

offence punishable under Sections 406, 420, 379, 323 and 506 of

Indian Penal Code is made out but as Section 420 of Indian Penal

Code is not made out hence, the learned Sessions Judge, Dhanbad

has rightly set aside the cognizance in respect of the same and the

learned Sessions Judge, Dhanbad in a well-reasoned order has

discussed the entire materials and there is no illegality in the

order passed by the learned Sessions Judge, Dhanbad nor the

petitioner has whispered a word in this criminal miscellaneous

petition as to why the order passed by the learned Sessions Judge,

Dhanbad be quashed and merely, for the asking of the petitioner

without any rhyme or reason certainly, the order passed by the

learned Sessions Judge, Dhanbad in Cr. Revision No. 52 of 2022

which is otherwise a reasoned order cannot be interfered with by

this Court in exercise of its jurisdiction under Section 482 Cr.P.C.

Hence, it is submitted that this criminal miscellaneous petition

being without any merit be dismissed.

9. Having heard the submissions made at the Bar and after going

through the materials in the record, this Court finds that the

learned Sessions Judge, Dhanbad has discussed in detail the

materials basing upon which the learned Judicial Magistrate 1st

Class, Dhanbad found prima facie case for the offence punishable

under Sections 406, 379, 323 and 506 of Indian Penal Code and

there is no illegality in the said order passed by the learned

Sessions Judge, Dhanbad. The original order passed by the

learned Judicial Magistrate 1st Class, Dhanbad dated 05.01.2022

has stand modified by the order passed by the learned Sessions

Judge, Dhanbad in Cr. Revision No. 52 of 2022 and this Court

does not find any plausible reason to interfere with the reasoned

order passed by the learned Sessions Judge, Dhanbad in Cr.

Revision No. 52 of 2022.

10. Accordingly, this criminal miscellaneous petition being without

any merit is dismissed.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 8th August, 2023 AFR/Sonu-Gunjan/-