Jharkhand High Court

Dr. Suman Dubey vs The State Of Jharkhand And Another on 19 August, 2023

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No. 124 of 2022

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      Dr. Suman Dubey                                  .... Petitioner
                                 --   Versus      --

      The State of Jharkhand and Another               .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Abhay Kumar Mishra, Advocate For the State :- Mrs. Vandana Singh, Sr.S.C.-III

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7/19.08.2023 The respondent no.2 has already appeared.

2. On repeated call nobody has responded on behalf of the

respondent no.2. Identical was the situation on 10.10.2022 and on that

day the matter was adjourned with a view to provide one more

opportunity to the respondent no.2. In view of that, in absence of the

respondent no.2, this matter is being heard on merit.

3. The learned counsel for the petitioner has confined his

prayer with regard to the order dated 05.04.2008 passed under section

192(1) Cr.P.C.

4. Heard Mr. Abhay Kumar Mishra, the learned counsel

appearing on behalf of the petitioner and Mrs. Vandana Singh, the

learned counsel for the respondent State.

5. This petition has been filed for quashing of the order dated

05.04.2008 passed in Complaint Case No.479 of 2008 passed by learned

Chief Judicial Magistrate, Ranchi whereby by order dated 05.4.2008 she

has been pleased to refer the matter to the police under section 156(3)

Cr.P.C and on the even date she has transferred the matter to another

learned judicial magistrate under section 192 Cr.P.C.

6. Mr. Mishra, the learned counsel appearing for the petitioner

submits that the said complaint case being Complaint Case No.479 of

2008 was presented before the learned Chief Judicial Magistrate, Ranchi

on 05.04.2008 and the learned court has referred the complaint case

under section 156(3) Cr.P.C to the police for registration and

investigation. He further submits that on the same day, the learned court

has sent the case to the learned S.D.M., Ranchi under section 192(1) of

the Cr.P.C. He submits that the said section comes into play once the

congnizance is taken by the learned Chief Judicial Magistrate and only

thereafter the case can be transferred to any another court. He submits

that the petitioner has earlier moved before this Court in W.P.(Cr) No.393

of 2015 which was heard on merit and the judgment was reserved on

06.03.2018 by a coordinate Bench of this Court, however, till date, in that

case the judgment has not been delivered. He submits that co-accuse

namely Umesh Kumar Pandey has moved in Cr.M.P.No.2226 of 2015 in

which the further proceeding was stayed with regard to that the entire

case and not particularly of Dr. Umesh Kumar Pandey by order dated

23.3.2017 passed in Cr.M.P.No.2226 of 2015. He submits that the

judgment reserved with regard to cognizance order has nothing to do

with the present case as the case in hand the two orders dated

05.04.2008 are under challenge.

7. Mrs. Vandana Singh, the learned counsel appearing on

behalf of the respondent State submits that it appears that the learned

court has applied her mind and thereafter the said order has been

passed and there is no illegality in the impugned order.

8. In the case in hand, the said complaint case was referred

under section 156(3) Cr.P.C for registration of the FIR and investigation

and once that power was exercised by the learned court it was

incumbent upon her to wait for the out-come of the investigation,

however, she has chosen to transfer the case to leraned S.D.J.M., Ranchi

under section 192(1) Cr.P.C. Under section 190 Cr.P.C the learned Chief

Judicial Magistrate is empowered to take cognizance and thereafter only

section 192(1) Cr.P.C comes into play. It appears that without cognizance

order, power under section 192(1) Cr.P.C was exercised by the learned

court. Section 202 and 203 Cr.P.C was the subject matter before the

Hon'ble Supreme Court in the case of Samta Naidu and Another v.

State of Madhya Pradesh and Another [Cr.Appeal No.367-368 of

2020 (arising out of Special Leave Petition (Crl.) Nos. 4418-4419 of 2019]

wherein at paragraph no.12.1, it has been held as under:

"12.1 The issue was considered by the majority judgment of this Court as under:

48. Under the Code of Criminal Procedure the subject of Complaints to Magistrates is dealt with in Chapter 16 of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are Sections 200, 202 and 203. Section 200 deals with examination of complainants and Sections 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of Sections 202 and 203 were laid down in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker. The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and Section 203 lays down what materials are to be considered for the purpose. Under Section 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the 4 materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203, of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where

the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. Allah Ditto v. Karam Baksh; Ram Narain Chaubey v. Panachand Jain;Hansabai Sayaji Payagude v. Ananda Ganuji. In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobinda Das affirmed by a Full Bench in Dwarka Nath Mandal v. Benimadhas Banerji. It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming."

9. The word 'cognizance' is not defined in Cr.P.C and in the

case of S.K.Sinha, Chief Enforcement Officer v. Videocon

International Ltd. and Others, (2008) 2 SCC 492, the Hon'ble

Supreme Court has held in paragraph no.19 as given below:

"19. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a court or a Judge, it cannot '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."

10. When the cognizance is taken and on perusal of the FIR or

the complaint, an offence is made out, the order taking cognizance

cannot be quashed. The Court has to take cognizance of an offence after

perusal of the FIR, police papers and charge sheet if an offence is made

out, the court has to take cognizance. In the case in hand, the learned

court has already referred the matter under section 156(3) Cr.PC and on

the same day, she has transferred the case under section 192(1) Cr.P.C

without waiting for the out-come of the investigation pursuant to the

order passed under section 156(3) Cr.P.C which suggest that all exercise

is done without applying the judicial mind. Section 192(1) Cr.P.C speaks

that after taking cognizance the power under that section is required to

be exercised, however, the said power is exercised in absence of any