Law Web: Supreme Court: Magistrate should consider the following factors before the order of issue process against accused

It cannot be disputed that

while holding the inquiry under Section 202 Cr.P.C. the Magistrate

is required to take a broad view and a prima facie case. However,

even while conducting/holding an inquiry under Section 202

Cr.P.C., the Magistrate is required to consider whether even a prima

facie case is made out or not and whether the criminal proceedings

initiated are an abuse of process of law or the Court or not and/or

whether the dispute is purely of a civil nature or not and/or

whether the civil dispute is tried to be given a colour of criminal

dispute or not.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 168 OF 2020

Govind Prasad Kejriwal Vs State of Bihar

M. R. Shah, J.

Dated:January 31, 2020.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 21.04.2017 passed by the High Court of

Judicature at Patna in Criminal Misc.No.30284 of 2011 by which

the High Court has dismissed the said quashing petition preferred

by the original accused and has refused to quash the criminal

proceedings in Complaint Case No. 464 of 2001 for the offences

under Sections 323, 341 and 379 IPC, original Accused has

preferred the present appeal.

2. That the private respondent herein Gopal Prasad son of Shri

Shyam S. Prasad, brother of one Ramesh Kumar – a partner of a

firm called Kejriwal Films filed the criminal complaint being

Complaint Case No.464 of 2001 in the Court of Additional Chief

Judicial Magistrate, Barh against the appellant herein – one of the

partner of Kejriwal Films, for the offences under Sections 379, 323,

504, 506, 406, 452, 147, 148/34 IPC. The complaint reads as

under:

“1. That the complainant is the brother of Ramesh

Kumar, who is a partner of a firm called Kerjiwal

Firms. The accused Balabhadra Prasad Kejriwal is

also a partner in the said firm. Both the accused

persons are father and son by relation.

2. That the aforementioned Kejriwal Films has

taken the Savera Chitra Mandir on lease and carry

on their film business there, whose licence was

taken in the name of Govind Prasad Kejriwal.

3. That in order to cause loss to the complainant’s

brother and his partner Satyanarayan, both the

accused persons had hatched a conspiracy and

thereby had surrendered the cinema filming licence

before the District Magistrate. As such, the cinema

filming has been closed since 5.2.2000 and the

building has been locked. The complainant and

his brother were looking after the building from

outside. The complainant’s brother is staying

outside for the last some days.

4. That during the time of the occurrence, the

complainant was going towards the market. When

the complainant reached near the Savera Chitra

Mandir, saw the gate open. Seeing the gates open,

the complainant went inside the Savera Chitra

Mandir and saw that the accused persons Govind

Prasad Kejriwal and Balbhadra Prasad Kejriwal

and 45

other unknown people have broke the lock

of the cinema hall and its office and had kept their

Maruti Car No. HR 51D 8974 inside. The accused

Govind Prasad Kejriwal was putting the documents

of the cinema hall in a baggage. The accused

Balbhadra Prasad Kejriwal was removing the

electric fan and other machines by some other

people. The accused Balabhadra Prasad Kejriwal

himself was holding an electric starter in his hand.

5. That when the complainant objected, the

accused persons Govind Prasad Kejriwal and

Balabhadra Prasad Kejriwal gave a kick to the

complainant and threatened him to kill. The other

unknown accused persons pointed their pistol on

the complainant and rove him away from the

cinema hall.

6. That the accused persons Govind Prasad

Kejriwal and Balabhadra Prasad Kejriwal kept the

bag containing the documents in their car whose

number is HR 51D 8974. The other accused

persons removed the fan etc. and kept those in the

car.

7. That the accused persons Govind Prasad

Kejriwal and Balabhadra Prasad Kejriwal and two

unknown accused persons went towards the

market in their car. They asked their other people

to put their new lock in the cinema hall and threw

the old locks. Then the other accused persons

came out of the hall and fled in an auto rickshaw

towards the market.

8. That those accused persons, with illintention,

and cause loss to the complainant’s

brother and partner Ramesh Kumar and with the

intention to misappropriate the properties of

partnership firm had entered inside the cinema

hall by breaking its locks and taken away all the

valuable instruments. They had broken the old

lock of the cinema hall and put new locks in it and

caused damage inside the hall driving out the

complainant from the premises.

9. That the complainant’s brother had suffered a

loss of Rs.50,000/due

this theft. There is

possibility of causing irreparable loss on account of

theft of important documents. The description of

these documents can be known only when the

complainant’s brother arrives.

10. That after the occurrence, the complainant

had gone to the local police station to lodge a

report thereof. But the police did not lodge the

report. Then the complainant went to the SubDivisional

Police Officer, but he did not accept the

report of the complainant. There is illegal collusion

between the police and the accused persons.

Hence, it is being prayed to summon the

accused persons and punish them adequately.”

3. That the said complaint was filed on 19.12.2001. From the

record it appears that prior thereto, a written report was lodged by

the appellant herein Govind

Prasad Kejriwal, against Ramesh

Kumar and others for the offence under Section 379 IPC. After the

investigation, the I.O. filed the chargesheet

against all the four

accused persons including the complainant herein and even

Ramesh Kumar for the offence under Section 379 IPC. That the

Learned Trial Court has taken cognizance against all the accused

persons including Original private respondent herein – original

complainant under Section 379 IPC. That the said trial is pending.

That the complaint filed by the private respondent – original

complainant herein Gopal

Prasad being Complaint No.464 of 2001

came to be dismissed by the Learned Judicial Magistrate vide Order

dated 14.02.2003. That the Original complainant filed the Revision

Application before the Learned Additional Sessions Judge, Barh.

Vide Order dated 01.12.2004, the Learned Sessions Judge, Barh

allowed the said revision application and set aside the order passed

by the Learned Magistrate dated 14.02.2003 and remanded the

case back to the Learned Magistrate for further inquiry and to pass

fresh order in accordance with law. That pursuant to the remand

order, the complainant deposed one witness in support of his case.

Thereafter the Learned Magistrate vide order dated 25.07.2005 had

taken cognizance against the appellant herein under Sections 323,

341 and 379 IPC, against the order passed by the Learned

Magistrate taking cognizance under Sections 323, 341, 379 IPC,

the appellant herein preferred quashing petition before the High

Court being Criminal Miscellaneous Application No.34168 of 2005.

That vide order dated 16.05.2006, the High Court declined to

interfere, however observed that the appellant is at liberty to move

the Learned Lower Court. That thereafter brother of the original

complainant – Ramesh Kumar filed a title suit against the appellant

and the partnership firm for dissolution of the partnership and

rendition of accounts. That the said suit came to be dismissed,

against which the First Appeal was preferred by the said Ramesh

Kumar which came to be dismissed as withdrawn vide order dated

17.01.2011. That Thereafter the appellant filed an application for

discharge. Learned Magistrate vide order dated 04.08.2011 rejected

the prayer of the appellant for discharge. That thereafter the

appellant filed an application before the High Court for quashing of

order dated 04.08.2011 passed by the Learned Judicial Magistrate

rejecting the discharge application. Vide impugned Judgment and

order the High Court has dismissed the said application and has

refused to discharge the appellant and has refused to quash the

criminal proceedings. Hence, the original accused has preferred the

present appeal.

4. Mr. Pankaj Bhagat, Learned Advocate appearing on behalf of

the appellant has vehemently submitted that in the facts and

circumstances of the case the High Court has materially erred in

dismissing the application and confirming the order passed by the

Learned Trial Court dismissing the discharge application.

4.1 Learned Advocate appearing on behalf of the appellant has

vehemently submitted that the High Court has materially erred in

not considering the facts and circumstances of the case and even

considering the averments and the allegations in the complaint as

they are, they do not constitute any offence against the appellant

that too for the offences under Sections 323, 341, 379 IPC.

4.2 It is further submitted by Learned Advocate Mr. Pankaj Bhagat

that the High Court has not appreciated the fact that the

complainant has tried to convert a civil dispute into criminal, which

is nothing but an abuse of process of law and the Court.

4.3 It is submitted that therefore the High Court has materially

erred in not exercising the jurisdiction vested in it.

4.4 Making the above submissions it is prayed to allow the present

appeal and consequently discharge the appellant by quashing and

setting aside the order passed by the Learned Magistrate as well as

the High Court.

5. The present appeal is vehemently opposed by Mr. Pavan

Kumar, learned Advocate appearing for the original complainant. It

is vehemently submitted by Learned Advocate for Respondent No.2

– original complainant that in the facts and circumstances of the

case and more particularly when after holding the inquiry under

Section 202 Cr.P.C. when the Trial Court has taken cognizance

against the appellant for the offences under Sections 323, 341, 379

IPC, the Learned Trial Court thereafter has rightly refused to

discharge the appellant – original accused and the High Court has

committed no error in confirming the order passed by the Learned

Trial Court taking cognizance and not discharging the accused.

5.1 It is vehemently submitted by the Learned Advocate appearing

on behalf of the original complainant that at the time of inquiry

under Section 202 Cr.P.C. and at the time of taking cognizance, the

Trial Court is required to hold a limited inquiry to satisfy itself

whether there is any prima facie case. In support of his above

submission, learned counsel for the complainant has heavily relied

upon the decision of this Court in the case of National Bank of

Oman vs. Barakara Abdul Aziz, (2013) 2 SCC 488.

5.2. It is further submitted by the Learned Advocate appearing on

behalf of the original complainant that in any case, the allegations

are for the offence under Section 323 IPC also and the case is made

out against the accused for the offence under Section 323 IPC also.

5.3 It is further submitted that in fact earlier the Learned Sessions

Court set aside the order passed by the Learned Magistrate

dismissing the complaint and remanded the matter to the Learned

Magistrate. It is submitted thereafter on remand and after holding

necessary inquiry the Learned Trial Court has taken the cognizance

against the accused. It is submitted therefore that no interference

of this Court is called for in exercise of powers under Article 136 of

the Constitution of India more particularly when both, the Learned

Trial Court and the High Court has refused to discharge the

accused. It is submitted that whatever the submissions are made

on behalf of the accused are his defenses, which are required to be

considered at the time of the trial.

Making the above submissions it is prayed to dismiss the

present appeal.

6. Heard the Learned Advocates appearing on behalf of the

respective parties at length.

6.1 We have perused and considered the allegations made in the

complaint as well as the order passed by the learned Trial Court

taking cognizance against the accused. At the outset, it is required

to be noted that summons have been issued against the accused for

the offences under Sections 323, 341 and 379 of the IPC. Having

heard the learned counsel appearing for the respective parties and

even considering/taking the allegations in the complaint as they

are, we are of the opinion that initiation of criminal proceedings

against the accused is nothing but an abuse of process of law and

the Court. A purely civil dispute is tried to be given a colour of

criminal dispute.

6.2 It is required to be noted that the original complainant, as

such, has nothing to do with the partnership firm called Kejriwal

Films. The original complainant claims to be the brother of one

Ramesh Kumar who is a partner of the said partnership firm. The

main allegations in the complaint are with respect to the

partnership firm. Partner of the partnership firm has not made any

complaint. The allegations in the complaint are with respect to

surrender of cinema license before the District Magistrate.

Admittedly, one of the accused – Accused No.2 is a partner in the

aforementioned partnership firm. Appellant – Accused No.1 is the

son of the said partner – Balbadhadra Prasad Kejriwal. The

appellant is issued summons for the offences under Sections 379

and 341 of the IPC along with for the offence under Section 323 of

the IPC. None of the ingredients for making out the case under

Sections 341 and 379 are satisfied. At this stage, it is required to

be noted that prior to the impugned complaint/criminal

proceedings, the appellant/petitioner lodged an FIR on 06.12.2001

alleging that one HMT Generator set was stolen from the premises

of the Cinema. In the said case, a chargesheet

has been filed

against the private respondent herein Gopal Prasad and others for

having committed the theft. It is also required to be noted that

subsequently even one title suit was filed by the brother of the

complainant – Ramesh Kumar against the partnership firm and its

partners which came to be dismissed, against which an appeal was

preferred which came to be withdrawn by the said Ramesh Kumar.

Therefore, the impugned proceedings are nothing but an abuse of

process of law and the Court. A purely civil dispute is given a

colour of criminal proceedings. As observed above, none of the

ingredients of Sections 341 and 379 of the IPC, are satisfied.

6.3 Even none of the ingredients of Section 323 of the IPC, are

satisfied. Therefore, even considering the allegations in the

complaint as they are, to continue the criminal proceedings against

the accused even for the offence under Section 323 shall be an

abuse of process of the Court and the law. Therefore, we are of the

opinion that this is a fit case to exercise the powers under Section

482 Cr.P.C., and to quash the impugned criminal proceedings.

6.4 Insofar as the reliance placed upon the decision of Learned

Additional Sessions Judge, Barh, in Criminal Revision Application

No.31/235 of 2003 relied upon by the learned counsel for the

complainant is concerned, it is required to be noted that in the said

order there are no finding on merits by the Learned Revisional

Court. Revisional Court had only remanded the matter back to the

Learned Judicial Magistrate for further inquiry and to pass a fresh

order in accordance with law.

6.5 Now so far as the reliance placed on the decision of this Court

in the case of National Bank of Oman vs. Barakara Abdul Aziz

(Supra) relied upon by the Learned Advocate appearing on behalf of

the complainant is concerned, we are of the opinion that in the

facts and circumstances of the case, the said decision shall not be

of any assistance to the complainant. It cannot be disputed that