Madras High Court
Senthil Kumar vs The State Of House Officer on 6 July, 2021
CRL.O.P.No.26251 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.07.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
CRL.O.P.No.26251 of 2013
and
M.P.No.1 of 2013
1. Senthil Kumar
2. Subramaniyan ... Petitioners / Accused
Vs.
1. The State of House Officer,
Kodumudi Police Station,
Erode. ... Respondent / Complainant
2. Thamilselvi ... Respondent / De facto Complainant
Criminal Original Petition is filed under Section 482 of the Criminal
Procedure Code, to call for the records in C.C.No.19 of 2013 on the file of the
Judicial Magistrate Court, Kodumudi and quash the same as illegal,
incompetent and without jurisdiction.
For Petitioners : Mr.V.Raghavachari
For R1 : Mr.E.Rajthilak
Government Advocate (Crl Side)
R2 - Served - No Appearance
ORDER
This Criminal Original Petition has been filed to call for the records in
C.C.No.19 of 2013 on the file of the Learned Judicial Magistrate, Kodumudi
and quash the same.
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CRL.O.P.No.26251 of 2013
2. The petitioners submit that the 2nd respondent / defacto complainant
has lodged a complaint against them on 26.10.2012 around 5.15 p.m.,
alleging that on 23.10.2012 around 10.30 p.m., the petitioners in an inebriated
condition committed acts of mischief and broke the window of the defacto
complainant's house. Based on the complaint, a case has been registered by
the 1st respondent police under Sections 427, 294(b) and 506(1) of IPC.
Further, the petitioners submit that the complaint lodged against them lacks
bonafide and it is highly mischievous. The petitioners were summoned by
Court on 10.07.2013 and they have denied the incident. Only thereafter, they
came to know that the magistrate in addition to the provisions under which the
police had launched a Criminal Complaint had included Section 4 of
Tamilnadu Prohibition of Harassment of Women Act 1998. None of the
allegations made against the petitioners either on the complaint or on the
prima facie evidence adduced before it warrant framing of charge under Act
44 of 1998. Hence they prayed for quashing the complaint on the following
grounds :
a. That the complaint made against the petitioners is
fictitious and false.
b. That the petitioners have not indulged in harassment
of a woman that had caused intimidation, fear, shame or
embarrassment, particularly to LW1, warranting a criminal
charge under Section 4 of the Act.
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CRL.O.P.No.26251 of 2013
c. That the allegations against the petitioners is created
falsely and made with an oblique motive and that too, after 3
days of the alleged incident. Belated launching of the FIR
remains unexplained particularly when the Police Station is
hardly 4 kms away from the residence.
d. That an earlier complaint had been lodged on
23.10.12 and withholding of the complaint from the purview of
the court is fatal. A second complaint on the same subject is
not maintainable.
e. That the prosecution is attempting to shield the truth
and built a false case without any justification and on the facts
of the case, the occurrences attributed would not attract
Section 294(b) of Indian Penal Code.
f. That the valuation of the property, alleged to have
been damaged is not fortified by prosecution by placing any
records. Consequently, framing of charge sheet under Section
427 is impermissible.
g. That the filing of a charge sheet under Section 506(I)
is absolutely misconceived as the statement of LW 1 to LW 7
would not even prima facie prove the complaint under the
aforesaid provision.
h. That when the prosecution had placed the charge
sheet under Section 294(b), 427, 506(I) of Indian Penal Code,
the magistrate is not justified in directing the enquiry under
Section 4 of the Tamilnadu Prohibition of Harassment of
Women Act 1998.
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CRL.O.P.No.26251 of 2013
3. The learned counsel for the petitioners would submit that a Learned
Magistrate while taking cognizance of an offence must record his reason for
issuing process against the accused. But the Court below after taking
cognizance of the offence has only made an endorsement in the bottom of
the charge sheet “the case in C.C.No.19 of 2013 is taken on file under
Section 294(b) 427 and 506(i) IPC, Issue summon to A1 and A2” and has
not assigned any reason for the same.
4. In support of his submission, the learned counsel for the petitioners
has relied on various judgments of this Court as well as the Hon'ble Supreme
Court, which reads as follows :-
i. [Shanmugam and Others v. Inspector of Police and
Another] reported in 2019 SCC OnLine Mad 2667 : (2019) 2
LW (Cri) 263. The relevant portions of the judgment is extracted
hereunder :
“18. The Court below has taken cognizance of the
complaint by merely affixing a “Rubber Stamp” as follows :-
“CC.No.104/2018
Taken on file on 27-08-18
U/s.465, 467, 468, 471 IPC
and posted to 17.09.2018
P.C.A used is on
Judicial Magistrate No.I
Ariyalur
19. It has been repeatedly held that taking cognizance is
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CRL.O.P.No.26251 of 2013
a judicial act which requires application of mind and the Court
must give some reasons for taking cognizance. Failing which,
the cognizance itself becomes bad in the eye of law.
Unfortunately in this case, the Court below has resorted to
“Rubber Stamp” cognizance without assigning any reason.
20. The Hon'ble Supreme Court in [Pawan Kumar
Sharma v. State of Uttaranchal] in Crl.Appeal No.1692 of
2007(ASLP (Crl.) No. 4701 of 2007, has dealt with this issue and
the relevant portions of the judgment is extracted hereunder :
“In the State of Uttaranchal (now known as State of
Uttarkhand) there exists a strange practice. The Magistrate
take cognizance of offence and issue summons in terms of
Section 202 of the Code of Criminal Procedure on “rubber
stamped” orders.
A distinction exists between an order taking
cognizance and an order issuing process. Before process
is issued, the Court concerned must apply its judicial mind.
It may, not only apply its mind as to whether on the basis
of the allegations made in the complaint petition and the
statements made by the complainant and his witnesses, a
prima facie case has been made out for issuing processes
but also must consider as to whether a case has been
made out in terms of proper provisions of the Penal Statute
for issuance of process for alleged commission of the
offences vis-a-vis, the allegations made.
Appellant herein seriously contend that even if the
submissions made in the complaint petition are given face
value and taken to be correct in their entirety, no case has
been made out for taking cognizance under Section 304(B)
of the IPC.
In State of Karnataka v. Pastor P.Raju (2006) 6
SCC 728, this Court has clearly made out a distinction
between an order taking cognizance of an offence and an
order of issuance of process stating :
“13. It is necessary to mention here that taking
cognizance of an offence is not the same thing as
issuance of process. Cognizance is taken at the initial
stage when the Magistrate applies his judicial mind to the
facts mentioned in a complaint or to a police report or upon
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CRL.O.P.No.26251 of 2013
information received from any other person that an offence
has been committed. The issuance of process is at a
subsequent stage when after considering the material
placed before it the Court decides to proceed against the
offenders against whom a prima facie case is made out.”
21. The Hon'ble Supreme Court in [Sunil Bharti Mittal v.
Central Bureau of Investigation] reported in (2015) 4 SCC 609
has held as follows :-
51. On the other hand, Section 204 of the Code deals
with the issue of process, if in the opinion of the Magistrate
taking cognizance of an offence, there is sufficient ground
for proceeding. This Section relates to commencement of a
criminal proceeding. If the Magistrate taking cognizance of a
case (it may be the Magistrate receiving the complaint or to
whom it has been transferred under Section 192), upon a
consideration of the materials before him (i.e., the
complaint, examination of the complainant and his
witnesses if present, or report of inquiry, if any), thinks that
there is a prima facie case for proceeding in respect of an
offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or
refusal of process and it must be judicially exercised. A
person ought not to be dragged into Court merely because a
complaint has been filed. If a prima facie case has been
made out, the Magistrate ought to issue process and it
cannot be refused merely because he thinks that it is
unlikely to result in a conviction.
53. However, the words “sufficient grounds for
proceeding” appearing in the Section are of immense
importance. It is these words which amply suggest that an
opinion is to be formed only after due application of mind
that there is sufficient basis for proceeding against the said
accused and formation of such an opinion is to be stated in
the order itself. The order is liable to be set aside if no
reason is given therein while coming to the conclusion that
there is prima facie case against accused, though the order
need not contain detailed reasons. A fortiori, the order would
be bad in law if the reason given turns out to be ex facie
incorrect.
22. It is clear from the above judgments that the Hon'ble
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CRL.O.P.No.26251 of 2013
Supreme Court has deprecated the practice of taking
cognizance through “Rubber Stamp” orders. The Hon'ble
Supreme Court has made it very clear that taking cognizance is
a judicial act which requires application of mind. The order is
liable to be set aside if no reason is given therein while coming
to the conclusion that there is a prima facie case against
accused persons. Of course, the order need not contain detailed
reasons.”
ii. [Anamallai's Motors Private Ltd., v. R.Subbaiah] reported
in 2019 (2) MWN (Cr.) 598. The relevant portions of the
judgment is extracted hereunder :
“11. Before considering the above submissions, it is
useful to refer to the order passed by the Learned Judicial
Magistrate, which reads as follows :
“Records perused. Prima facie case is made out
against the respondents for the offences mentioned in the
Complaint. Hence, the case is taken into file under
Sections 34, 417, 418 & 420, I.P.C. Issue Summons to A-
1 to A-6 on process call on 11.7.2014.”
12. Section 204 of the Code of Criminal Procedure deals
with issuing of process, which reads as follows :
“Issue of process - (1) If in the opinion of a
Magistrate taking cognizance of an offence there is
sufficient ground for proceeding, and the case appears to
be :
(a) a Summons-case, he shall issue his Summons
for the attendance of the Accused, or
(b) a Warrant-case, he may issue a Warrant, or, if
he thinks fit, a Summons, for causing the Accused to be
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CRL.O.P.No.26251 of 2013
brought or to appear at a certain time before such
Magistrate or (if he has no jurisdiction himself) some other
Magistrate having jurisdiction.
(2) No Summons or Warrant shall be issued against the
Accused under sub section (1) until a list of the
prosecution witnesses has been filed.
(3) In a proceeding instituted upon a Complaint made in
writing, every Summons or Warrant issued under sub-
section (1) shall be accompanied by a copy of such
Complaint.
(4) When by any law for the time being in force any
Process-fees or other fees are payable, no process shall
be issued until the fees are paid and, if such fees are not
paid within a reasonable time, the Magistrate may dismiss
the Complaint.
(5) Nothing in this Section shall be deemed to affect the
provisions of Section 87.”
13. A cursory reading of the above provision makes it
clear that, before taking cognizance of an offence, the learned
Magistrate should satisfy himself that there is a sufficient ground
available in the Complaint or other materials filed along with the
Complaint for proceeding against the Accused. The Order
passed by the learned Judicial Magistrate taking cognizance and
issuing Process should reflect, whether the learned Judicial
Magistrate has applied his mind, and satisfied from the materials
available on record, a cognizable offence is made out, which is
sufficient to initiate a proceedings against the Accused. Even
though the learned Judicial Magistrate need not write an
elaborate Order, but, the Order should reflect that the learned
Magistrate has carefully considered the materials brought on
record and he has examined the nature of allegations made in
the Complaint placed before him.”
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CRL.O.P.No.26251 of 2013
iii. [Mahesh and Others v. State represented by the
Inspector of Police and Another] reported in 2019 SCC
OnLine Mad 7851. The relevant portions of the judgment is
extracted hereunder :
“3. The learned counsel appearing for the petitioners
relied upon the judgment of the Hon'ble Apex Court in the case
of Rasheed Khan v. The State of Uttar Pradesh in
Spl.A.No.3159 of 2018. The relevant portion of the said
judgment reads as follows :-
“The question that emerges for consideration is
whether the learned Magistrate, while entertaining a
complaint under Section 200 and taking cognizance under
Section 204 of the Code of Criminal Procedure, is obliged
to record his satisfaction.
In paragraph 53 of the decision of this Court
rendered by a three-judge Bench in Sunil Bharti Mittal v.
Central Bureau of Investigation (2015) 4 SCC 609, it has
been held thus :
“53. However, the words 'sufficient ground for
proceeding' appearing in Section 204 are of
immense importance. It is these words which amply
suggest that an opinion is to be formed only after
due application against the said accused and
formation of such an opinion is to be stated in the
order itself. The order is liable to be set aside if no
reason is given therein while coming to the
conclusion that there is prima facie case against the
accused, though the order need not contain detailed
reasons. A fortiori, the order would be bad in law if
the reason given turns out to be ex facie incorrect.”
4. A perusal of the above decision makes it clear that the
learned Magistrate while entertaining the complaint under
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Section 200 Cr.P.C., and taking cognizance under Section 204
Cr.P.C., must record his satisfaction for issuance of process and
further the learned Magistrate has to satisfy sufficient ground for
proceeding further in respect of the complaint and after
formation of opinion the learned Magistrate has to issue
summon to the parties.”
iv. [Adalat Prasad v. Rooplal Jindal and Others] reported in
(2004) 7 Supreme Court Cases 338.
“......... A condition precedent for issuing process under
Section 204 is the satisfaction of the Magistrate, either by
examination of the complainant and the witnesses or by the
inquiry contemplated under Section 202 that there is sufficient
ground for proceeding with the complaint. In none of these
stages the Code of Criminal Procedure, 1973 has provided for
hearing the summoned accused, because this is only a
preliminary stage and the stage of hearing of the accused would
only arise at a subsequent stage provided for in the latter
provisions in the Code. The only stage of dismissal of the
complaint arises under Section 203 Cr.P.C at which stage the
accused has no role to play, therefore, the question of the
accused on receipt of summons approaching the court and
making an application for dismissal of the complaint under
Section 203 Cr.P.C for a reconsideration of the material
available on record is impermissible because by then Section
203 is already over and the Magistrate has proceeded further to
Section 204 stage.
It is true that if a Magistrate takes cognizance of an
offence, issues process without there being any allegation
against the accused or any material implicating the accused or in
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CRL.O.P.No.26251 of 2013
contravention of provisions of Sections 200 and 202, the order of
the Magistrate may be vitiated, but then the relief an aggrieved
accused can obtain at that stage is not by invoking Section 203
Cr.P.C because the Code does not contemplate a review of an
order. Hence in the absence of any review power or inherent
power with the subordinate criminal courts, the remedy lies in
invoking Section 482 Cr.P.C. The view of the Supreme Court in
Mathew case, (1992) 1 SCC 217 that no specific provision is
required for recalling an erroneous order, amounting to one
without jurisdiction, does not lay down the correct law.
15. It is true that if a Magistrate takes cognizance of an
offence, issues process without there being any allegation
against the accused or any material implicating the accused or in
contravention of provisions of Sections 200 and 202, the order of
the Magistrate may be vitiated, but then the relief an aggrieved
accused can obtain at that stage is not by invoking Section 203
of the Code because the Criminal Procedure Code does not
contemplate a review of an order. Hence in the absence of any
review power or inherent power with the subordinate criminal
courts, the remedy lies in invoking Section 482 of the Code.”
5. On perusal of the above judgments relied on by the learned counsel
for the petitioners, it is clear that the Learned Magistrate while entertaining the
complaint under Section 200 Cr.P.C., and taking cognizance under Section
204 Cr.P.C., must record his satisfaction for issuance of process and further
the Learned Magistrate has to satisfy sufficient ground for proceeding further
in respect of the complaint. In the present case, after taking cognizance of the
offence, the Court below has failed to record his satisfaction as required
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CRL.O.P.No.26251 of 2013
under Section 204 Cr.P.C and it has only made an handwritten order in the
charge sheet as “the case in C.C.No.19 of 2013 is taken on file under
Section 294(b) 427 and 506(i) IPC, Issue summon to A1 and A2.
6. The provisions of Section 204 CPC clearly states that before taking
cognizance of an offence, the learned Magistrate should satisfy himself that
there is sufficient ground available in the complaint to proceed against the
accused and the order passed by the learned Magistrate should reflect as to
whether the learned Magistrate has applied his mind to initiate a proceedings
against the accused. The Court below without considering the above
provisions has passed an unreasoned order while taking cognizance and
issuing summon to the accused. Hence the order of the Court below needs
interference of this Court under Section 482 of the Code in order to prevent
abuse of process of the Court.
7. Accordingly, the proceedings in C.C.No.19 of 2013 on the file of the
Judicial Magistrate Court, Kodumudi is quashed and this Criminal Original
Petition is allowed. Consequently, connected miscellaneous petition is closed.
06.07.2021
raja
Index : yes/no
Internet : yes/no
To
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CRL.O.P.No.26251 of 2013
1. The Station House Officer, Kodumudi Police Station, Erode.
2. The Government Advocate (Crl Side), High Court, Madras.
V.BHAVANI SUBBAROYAN.J.,
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CRL.O.P.No.26251 of 2013
raja
CRL.O.P.No.26251 of 2013
and
M.P.No.1 of 2013
06.07.2021
https://www.mhc.tn.gov.in/judis/
