Madhya Pradesh High Court
Smt. Mala Chatterjee vs Rajkumar Sonkar on 19 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
MCRC No.18452/2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 18452 of 2018
BETWEEN:-
1. SMT. MALA CHATTERJEE W/O LATE P.K.
CHATTERJEE, AGED ABOUT 61 YEARS, R/O
BENGALI COLONY, RANJHI, DISTRICT
JABALPUR (MADHYA PRADESH)
2. SONALI CHATTERJEE D/O LATE P.K.
CHATTERJEE, AGED ABOUT 29 YEARS, R/O
BENGALI COLONY, RANJHI, DISTRICT
JABALPUR (MADHYA PRADESH)
3. SMT. GOPA CHATTERJEE W/O SHRI B.N
MISHRA, AGED ABOUT 62 YEARS, R/O
BENGALI COLONY, RANJHI, DISTRICT
JABALPUR (MADHYA PRADESH)
4. PRASANJEET CHATTERJEE S/O LATE P.K.
CHATTERJEE, AGED ABOUT 32 YEARS, R/O
BENGALI COLONY, RANJHI, DISTRICT
JABALPUR (MADHYA PRADESH)
5. VISHWAJEET CHATTERJEE S/O LATE P.K.
CHATTERJEE, AGED ABOUT 30 YEARS, R/O
BENGALI COLONY, RANJHI, DISTRICT
JABALPUR (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI SIDDHARTH BHOLA - ADVOCATE)
AND
1. RAJKUMAR SONKAR S/O SHRI LAKHAN LAL
SONKAR, AGED ABOUT 56 YEARS, R/O PAL
COMPLEX, BENGALI COLONY, RANJHI,
DISTRICT JABALPUR (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH, THROUGH IN-
CHAGRE POLICE STATION RANJHI, DISTRICT
JABALPUR (MADHYA PRADESH)
2
MCRC No.18452/2018
.....RESPONDENTS
(SHRI ANUBHAV JAIN - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.2/STATE)
This application coming on for hearing this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed
against order dated 22.09.2017 passed by Special Judge (SC/ST Act),
Jabalpur in MJC No.599/2017 by which closure report filed by police in
respect of offence under Sections 147, 427/34 of IPC has been rejected
but closure report in respect of offence under Section 294 of IPC and
under Section 3(1)(x) of Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act has been accepted.
2. The facts necessary for disposal of present application in short are
that complainant filed a complaint under Section 200 of Cr.P.C. for
offence under Sections 294, 427, 34 of IPC and under Sections 3(1)(ii),
3(1)(ii)(v), 3(1)(x), 3(1)(xv) of Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Act,
1989"). It was alleged by complainant that he is the resident of Paul
Complex, Bengali Colony, Ranjhi, whereas accused persons are also
resident of Bengali Colony, Ranjhi. On 17.07.2008 while son of
complainant was returning back from the school, he was stopped by
accused No.1 and 2 in front of Satyam Tower and by insulting and
intimidating him by calling him by his caste name, he was assaulted, as
a result, he had suffered injuries and blood had started oozing out from
his lips and face with swelling. Accordingly, son of complainant came
back to house and informed the entire incident to the complainant.
Therefore, complainant went to Ranjhi Police Station to lodge the FIR.
When he came back after medical treatment of his son, he was informed
by his wife that in the meanwhile accused persons had come to the
house and had pelted stones and had also abused by using filthy
language concerning their mother and sister and had also insulted and
intimidated that "rqe yksx uhp gks rqe yksxks dk jguk eqf'dy dj nsxa"s , as a
result, wall and doors of the house had got damaged. The incident was
seen by Ram Singh and Radha Bai. The complainant immediately went
to Police Station Ranjhi but there he was made to sit with a clear
instruction that FIR would be lodged only after officers would come to
the police station. It was further mentioned in the complaint that accused
persons are influential persons and because of their political influences,
no action was taken by police. On earlier occasions also the accused
persons had picked up a quarrel with complainant as well as his younger
brother Vijay Sonkar. Since police did not take any action, accordingly,
said inaction has encouraged the accused persons. Accordingly, Writ
Petition No.8472/2007 was also filed before the High Court which was
decided with a direction to Superintendent of Police to take action. In
spite of said direction by High Court, no action was taken by the police,
therefore, the complaint was filed. Police registered the FIR in Crime
No.29/2013 and after investigating the matter, filed the closure report.
The Magistrate returned the closure report by order 23.03.2017 on the
ground that same may be presented before the competent Court. The
Special Judge (SC/ST Act), Jabalpur by impugned order dated
22.09.2017 passed in MJC No.599/2017 has rejected the closure report
in respect of offence under Sections 147, 427/34 of IPC but has accepted
the closure report for offence under Sections 294 of IPC and under
Section 3(1)(x) of Act, 1989.
3. Challenging the order by which the closure report in respect of
offence under Sections 147, 427/34 of IPC was rejected, it is submitted
by counsel for applicants that police after investigating the matter had
filed the closure report. The complainant witnesses whose names were
mentioned in the FIR had given the affidavit to the Investigating Officer
thereby describing about the actual truth. The witnesses mentioned in
the FIR have specifically given affidavit that no such incident had taken
place in fact complainant has criminal history and the complaint was
filed with a solitary intention to settle the score. Even if the Special
Judge was of the view that closure report in respect of offence under
Sections 147, 427/34 is not liable to be accepted, still instead of taking
cognizance should have sent the case back to the Magistrate.
4. Considered the aforesaid submissions.
5. It is not out of place to mention here that complainant has not
challenged the acceptance of closure report in respect of offence under
Section 294 of IPC and under Section 3(1)(x) of Act, 1989, therefore,
this Court would confine itself to the rejection of closure report for
offence under Sections 147, 427/34 of IPC. The allegations made in the
complaint have already been reproduced. It is specifically mentioned in
the complaint that because of pelting of stones by accused, a mischief
has been caused to the amount of Rs.50/- onwards as the wall and doors
of the house of complainant house have got damaged. Thus, there is
basic allegation of making out an offence under Section 427 of IPC.
Trial Court has taken cognizance of offence under Sections 147, 427
read with Section 34 of IPC.
6. Unlawful Assembly has been defined under Section 141 of IPC
which provides that an assembly of five or more persons is designated
as "unlawful assembly", if the common object of the persons composing
that assembly is covered by clause 1-5 of said section. In the present
case total number of accused persons are 5, therefore, Section 141
would apply.
7. Rioting has been defined under Section 146 of IPC which means
whenever force or violence is used by an unlawful assembly, or by any
member thereof, in prosecution of the common object of such assembly,
every member of such assembly is guilty of the offence of rioting.
8. Section 147 provides for punishment for rioting. Once the Trial
Court has taken cognizance for offence under Section 147 of IPC, then
there was no need to take cognizance for offence under Section 34 of
IPC. Even otherwise after recording of evidence, if it is found that some
of the accused persons were not involved and are liable to be acquitted,
then by taking aid of Section 34 of IPC, the remaining accused can also
punished. Under these circumstances, taking a cognizance under Section
34 of IPC is unwarranted.
9. Even otherwise it is well established principle of law that at the
time of taking cognizance, meticulous inquiry for appreciation of
evidence is not required.
10. "Sufficient cause" for taking cognizance has been explained by
Supreme Court in the case of Shivjee Singh Vs. Nagendra Tiwary and
Others reported in (2010) 7 SCC 578 has held as under:-
"18. The expression "sufficient ground" used in
Sections 203, 204 and 209 means the satisfaction
that a prima facie case is made out against the
person accused of committing an offence and not
sufficient ground for the purpose of conviction.
This interpretation of the provisions contained in
Chapters XV and XVI CrPC finds adequate
support from the judgments of this Court
in Ramgopal Ganpatrai Ruia v. State of
Bombay [AIR 1958 SC 97 : 1958 Cri LJ 244 :
1958 SCR 618], Vadilal Panchal v. Dattatraya
Dulaji Ghadigaonkar [AIR 1960 SC 1113 : 1960
Cri LJ 1499 : (1961) 1 SCR 1], Chandra Deo
Singh v. Prokash ChandraBose [AIR 1963 SC
1430 : (1963) 2 Cri LJ 397 : (1964) 1 SCR 639]
, Nirmaljit Singh Hoon v. State of W.B. [(1973) 3
SCC 753 : 1973 SCC (Cri) 521], Kewal
Krishan v. Suraj Bhan [1980 Supp SCC 499 : 1981
SCC (Cri) 438], Mohinder Singh v. Gulwant
Singh [(1992) 2 SCC 213 : 1992 SCC (Cri) 361]
and Chief Enforcement Officer v. Videocon
International Ltd. [(2008) 2 SCC 492 : (2008) 1
SCC (Cri) 471].
19. In Chandra Deo Singh v. Prokash Chandra
Bose [AIR 1963 SC 1430 : (1963) 2 Cri LJ 397 :
(1964) 1 SCR 639], it was held that where there
was prima facie evidence, the Magistrate was
bound to issue process and even though the person
charged of an offence in the complaint might have
a defence, the matter has to be left to be decided by
an appropriate forum at an appropriate stage. It
was further held that the issue of process can be
refused only when the Magistrate finds that the
evidence led by the complainant is self-
contradictory or intrinsically untrustworthy.
20. In Kewal Krishan v. Suraj Bhan [1980 Supp
SCC 499 : 1981 SCC (Cri) 438], this Court
examined the scheme of Sections 200 to 204 and
held: (SCC p. 503, para 10)
"10. ... At the stage of Sections
203 and 204 of the Criminal
Procedure Code in a case exclusively
triable by the Court of Session, all
that the Magistrate has to do is to see
whether on a cursory perusal of the
complaint and the evidence recorded
during the preliminary inquiry under
Sections 200 and 202 of the Criminal
Procedure Code, there is prima facie
evidence in support of the charge
levelled against the accused. All that
he has to see is whether or not there is
'sufficient ground for proceeding'
against the accused. At this stage, the
Magistrate is not to weigh the
evidence meticulously as if he were
the trial court. The standard to be
adopted by the Magistrate in
scrutinising the evidence is not the
same as the one which is to be kept in
view at the stage of framing charges."
21. The aforesaid view was reiterated in Mohinder
Singh v. Gulwant Singh [(1992) 2 SCC 213 : 1992
SCC (Cri) 361] in the following words: (SCC p.
217, para 11)
"11. ... The scope of enquiry
under Section 202 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 issue or not
under Section 204 of the Code or
whether the complaint should be
dismissed by resorting to Section 203
of the Code 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. But the enquiry at that stage does
not partake the character of a full-
dress trial which can only take place
after process is issued under Section
204 of the Code calling upon the
proposed accused to answer the
accusation made against him for
adjudging the guilt or otherwise of the
said accused person. Further, the
question whether the evidence is
adequate for supporting the
conviction can be determined only at
the trial and not at the stage of the
enquiry contemplated under Section
202 of the Code. To say in other
words, during the course of the
enquiry under Section 202 of the
Code, the enquiry officer has to
satisfy himself simply on the evidence
adduced by the prosecution whether
prima facie case has been made out so
as to put the proposed accused on a
regular trial and that no detailed
enquiry is called for during the course
of such enquiry."
(emphasis supplied)
22. The use of the word "shall" in the proviso to
Section 202(2) is prima facie indicative of
mandatory character of the provision contained
therein, but a close and critical analysis thereof
along with other provisions contained in Chapter
XV and Sections 226 and 227 and Section 465
would clearly show that non-examination on oath
of any or some of the witnesses cited by the
complainant is, by itself, not sufficient to denude
the Magistrate concerned of the jurisdiction to pass
an order for taking cognizance and issue of process
provided he is satisfied that prima facie case is
made out for doing so. Here it is significant to note
that the word "all" appearing in the proviso to
Section 202(2) is qualified by the word "his". This
implies that the complainant is not bound to
examine all the witnesses named in the complaint
or whose names are disclosed in response to the
order passed by the Magistrate. In other words,
only those witnesses are required to be examined
whom the complainant considers material to make
out a prima facie case for issue of process."
11. Under these circumstances, this Court is of considered opinion
that no case is made out warranting interference.
12. Ex-consequenti, order dated 22.09.2017 passed by Special Judge
(SC/ST Act), Jabalpur in MJC No.599/2017 is upheld.
13. The application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
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Date: 2024.03.06 17:17:16 +05'30'
