IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17550 of 2009 NARAYAN SINGH SON OF LATE KESHAV SINGH, RESIDENT OF VILLAGE- KHEMDA BARUN, P.S.- BARUN, DISTRICT- AURANGABAD (BIHAR). … PETITIONER. Versus 1. THE STATE OF BIHAR. 2. NARENDRA KUMAR SINGH, SON OF SHRI BADRI SINGH, RESIDENT OF VILAGE- JANGI BIGHA, P.S. BARUN, DISTRICT- AURANGABAD (BIHAR). … OPPOSITE PARTIES. ----------- 4. 14.03.2011 Heard learned counsel for the petitioner and the State. The petitioner has challenged the order of cognizance dated 30.3.2009, whereby the learned Judicial Magistrate, Ist Class, Aurangabad found prima facie case under Sections 417 and 418 of Indian Penal Code in Complaint Case No.1436 of 2007. Notice was issued to Opposite Party No.2 vide order dated 14.05.2010 and the further proceedings before the learned Court below was stayed. In pursuance to that Opposite Party No.2 appeared and one Deepak Kumar, learned Advocate filed appearance on behalf of Opposite Party No.2 but no body is appearing in the case which also gets reflected from the order dated 4.3.2011 when the matter was adjourned for 14.3.2011 with clear stipulation that on that day if Opposite Party No.2 will not appear then the matter will be disposed off on the 2 basis of materials available on the record. The complainant levelled an allegation against the petitioner that certain lands were transferred by registered sale deed by the petitioner in favour of Keshav Singh Yadav College, Barun but in the sale deed, in both the columns of the vendor and vendee, the petitioner’s name appears. It is further alleged that neither the two sale deeds nor the revenue receipts were submitted to the University and illegal appointments in the College in question were being made for personal gains. It is submitted by the learned counsel for the petitioner that the complainant is none-else than ex- Clerk, who was subsequently removed from the College in question, and the lands in question were gifted to the College and were transferred in the name of Governor which is apparent from Annexure-2 (Gift deed). The College is an affiliated College under the Magadh University. It is further submitted that the case has maliciously been lodged by the complainant, as no offence is made out on the basis of accusation nor till date the College in question or the University raised any objection with regard to the transferred land. The petitioner was the Secretary of the College being the local MLA but now since the petitioner is not an MLA, 3 so he is no longer holding the said post. Considering the aforesaid facts, it appears that maliciously the case has been lodged and no prima facie offence is made out against the petitioner under Sections 417 and 418 of the Indian Penal Code. It appears that the order of cognizance has been passed only on the statement of the complainant. The learned Court below could not have passed the impugned order if it would have gone through the relevant documents on record and had learned Court below gone through the gift deed it would have reached to a different conclusion. As the nucleus of the accusation is execution of sale deed but in fact no sale deed was executed. This tendency of mechanically passing the order of cognizance has been deprecated by Hon’ble Supreme Court in the case of PEPSI FOODS LTD. AND ANOTHER VS. SPECIAL JUDICIAL MAGISTRATE AND OTHERS, reported in (1998) 5 Supreme Court Cases 749, in paragraph 28 of which reads as follows: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the 4 complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused”. 5 Had the learned court below enquired from the said College, to which the transfer of land was made, perhaps the summons would not have been issued to the petitioner. It appears that accusation are absurd and complaint has maliciously been filed. Hence the continuation of the present prosecution will be an abuse of the process of the Court. Accordingly, in the interest of justice the order of cognizance dated 30.3.2009 including the entire prosecution of Complaint Case No.1436 of 2007 with regard to the petitioner are hereby quashed. Ibrar/- (Dinesh Kumar Singh, J.)