Jharkhand High Court
Gangaram @ Cvn Gangaram vs State Represented Through Labour ... on 28 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 683 of 2020
Gangaram @ CVN Gangaram, aged about 63 years, Son of Late
Venkata Rao, Retired Company Secretary, Central Coalfields
Limited, Darbhanga House, Post Office: Ranchi University, Police
Station: Ranchi Sadar, District: Ranchi and at present Residing at:
- Door No. 8-22-18/1A, Dalta Street, Gandhi Nagar, Kakinada,
Post Office: Gandhi Nagar, Police Station: II Town, District: East
Godavari, Andhra Pradesh-PIN: - 533004 ... ... Petitioner
Versus
State represented through Labour Enforcement Officer [Central],
Government of India, Hazaribag, Post Office and Police Station
and District: Hazaribag ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Rajesh Lala, Advocate
For the Opp. Party : Mr. Prabhat Kumar Sinha, Advocate
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05/28.08.2023
1. Learned counsel for the parties are present.
2. This petition has been filed for the following reliefs: -
"to quash the Cognizance Order dated 16.05.2013 passed in G.
[L.E.O.] Case No. 44 of 2013 by SDJM, Hazaribag [Now pending in
the Learned Court of CJM, Ramgarh], whereby and where under the
Learned Court below has been pleased to take cognizance of the
Office under Section 29 of the Industrial Disputes Act, 1947 as
against the Petitioner-CVN Gangaram [Company Secretary-CCL];
Sri Anil Kumar Jha [General Manager-Argada Area, CCL] & Sri
Anil Kumar Sinha [Project Officer-Sirka Colliery, Argada Area,
CCL].
Further the petitioner prays for quashing of the entire Criminal
Proceeding being G. [L.E.O.] Case No. 44 of 2013 at present
pending in the Learned Court of CJM, Ramgarh as it is an abuse of
the process of law.
Further the petitioner prays for that during the pendency of the
present Quashing Application the further proceeding of G. [L.E.O.]
Case No. 44 of 2013 pending in the Learned Court of CJM,
Ramgarh be stayed.
And
Further be pleased to grant such other relief and reliefs to the
Petitioner to which this Hon'ble Court may deem fit and proper in
the interest of justice and on the facts and circumstances of this
case."
3. Learned counsel for the petitioner has submitted that a
complaint was filed under Section 29 of the Industrial Disputes Act,
1947 and the so-called cognizance has been taken vide order dated
16.05.2013. He has placed the order and has submitted that on the face
of the order , it reflects non-application of judicial mind and even the
necessary blanks spaces have not been filled up.
4. The learned counsel has relied upon the judgment passed by
this Court in Cr. M.P. No. 2744 of 2013 reported in 2020 (1) JLJR
199 and has referred to paragraph 22 to 25 of the said judgment. The
learned counsel has also submitted that the said judgment has also
been followed in Cr. M.P. No. 1028 of 2020 decided on 10.09.2020.
The learned counsel submits that the so-called order taking cognizance
is a cryptic order and calls for interference.
5. Learned counsel appearing on behalf of the opposite party, on
the other hand, has opposed the prayer, but is not in a position to
justify the manner in which the so-called order taking cognizance has
been taken.
6. After hearing the learned counsel for the parties and
considering the facts and circumstances of this case, this Court finds
that the cognizance was taken vide order dated 16.05.2023. The order
taking cognizance dated 16.05.2013 is quoted as under:
7. This Court finds that the impugned order taking cognizance is
cryptic and reflects non application of judicial mind and has been
passed mechanically and such exercise of powers is contrary to the
law laid down by this Court in the judgment passed in Cr. M.P. No.
2744 of 2013 dated 27.11.2019 which has in turn considered a number
of judgments passed by the Hon'ble Supreme Court on the point.
The portions of the aforesaid judgment relevant for the purposes of
this case is quoted as under: -
"14. 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). Two important
phrase in this subsection (1) of Section 204 is (i) "in the opinion of a
Magistrate" and (ii) "there is sufficient ground for proceeding".
From the reading of the aforesaid section, it is quite clear that if there
exists sufficient ground to proceed against the accused, the Magistrate
has to form an opinion to that effect and proceed. Proceeding in this
contest means issuing summons or warrant in term of sub-section
(i)(a) or (i)(b) as the case may be. This proceeding is against a
person, i.e. the accused. Thus, this provision of law, i.e. Section 204
Cr.P.C. is a person centric clause, whereas Section 190 Cr.P.C., i.e.
taking cognizance, as discussed above, is offence centric.
15. The question is, when can a process under Section 204 Cr.P.C be
issued? It does not mean that if cognizance of an offence is taken, the
Magistrate has to issue summon against all the named accused
persons in the complaint or FIR. This is not what Section 204 Cr.P.C.
envisages. As per the provision of Section 204 Cr.P.C. only if there is
sufficient ground to proceed, then only the Magistrate has to proceed.
As the proceeding is against a person/accused, the Magistrate has to
form an opinion that there are sufficient materials against the accused
to proceed. There may be situation when from the records it would be
evident that there are no sufficient materials to proceed against some
of the accused persons, though in general an offence is made out. If
this would be the situation, then summons cannot be issued against all
the accused, rather it should be issued only against those accused
persons against whom there are sufficient materials to proceed.
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 mention 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.
24. Thus, I have no other alternative but to set aside the impugned
order dated 13.08.2013 and remit back the matter to the Magistrate
for passing a fresh order under Section 190 Cr.P.C. and 204 Cr.P.C.
in accordance with law. Accordingly, the impugned order dated
13.08.2013, passed by the Additional Chief Judicial Magistrate,
Latehar in Complaint Case No. C-20/2013, is hereby set aside and the
matter is remitted back to the Magistrate.
25. Thus, this application stands allowed."
8. As already held above, this Court finds that the impugned order
taking cognizance and issuing summons to the petitioner is absolutely
cryptic and does not reflect application of judicial mind and reflects
mechanical exercise of powers and the impugned order does not
suggest as to what are the materials against the petitioner so as to
proceed against him.
9. Consequently, the impugned order taking cognizance and
issuance of summons against the petitioner cannot be sustained in the
eyes of law and calls for interference in exercise of power under
Section 482 of the Code of Criminal Procedure to secure the ends of
justice. The impugned order taking cognizance so far as the petitioner
is concerned is accordingly quashed and set-aside and the matter is
directed to be placed before the learned Chief Judicial Magistrate,
Ramgarh who may place it before appropriate judicial officer for
passing fresh order in the matter of cognizance and issuance of
summons in the case in accordance with law.
10. The needful be done within a period of one month from the date
of communication of a copy of this order.
11. This petition is accordingly disposed of.
12. Pending interlocutory application, if any, is closed.
13. Let a copy of this order be communicated to the court
concerned through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Mukul
