IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34620 of 2008 1. Satish Kumar Singh, son of Late Sukhdeo Singh, resident of 126, M.I.G. Kankarbagh, P.S. Kankarbagh, District-Patna 2. Nanhe Lal Ram, son of Late Chandrika Prasad, resident of Mohalla- Gaighat, P.S.-Patna City, District-Gaya ……..Petitioners Versus 1. The State Of Bihar 2. Gopi Kumar, son of Sri Lal Babu Vishwakarma, residing at G. Plastic, Mogalpura Durukhi, P.S.-Khajekalan, District-Patna. ………Opposite Parties ----------- 03. 24.01.2011 Heard learned senior counsel for the petitioners and counsel for the State. In spite of valid service of notice to the complainant, none appeared on behalf of the complainant. The present application has been filed for quashing the order dated 28.01.2008 passed in Complaint Case No. 539 of 2004, whereby the learned Judicial Magistrate, 1st Class, Patna, took cognizance finding prima facie case under Sections 323, 427, 504/34 of the I.P.C. against the two petitioners of which petitioner No. 1, at the relevant time was Electrical Executive Engineer of the Bihar State Electricity Board, posted at Gulzar Bagh, Electric Supply Division, whereas petitioner No. 2 was posted as Assistant Electrical Engineer of Bihar State Electricity Board, posted at Electric Supply Sub-Division, Alamganj, Patna. 2 The prosecution case as per the complaint in question was filed on 16.07.2004 by Gopi Kumar, an employee of Md. Safi Ahmad and Md. Waliuddin, the proprietors of M/S G. Plastic alleging therein that on 15.07.2004 at about 3:30 P.M. when the complainant was discharging his duty, the accused persons named in the complaint started knocking the main gate of M/S G. Plastic. The complainant came near the main gate and enquired as to why they were knocking the gate. However, the accused persons enquired from the complainant regarding the where-about of the owners of the industry in question and when it was conveyed that owners are not available then the accused persons abused the complainant and forcefully entered inside the premises of the industry after breaking open the lock of the main gate. It is also alleged that on protest the accused persons started assaulting the complainant by fists and slaps when accused No. 3 namely Deo Nandan Prasad snatched wrist watch worth Rs. 675/- of the complainant. Accused no. 2 namely Nanhe Lal Ram picked up Rs. 540 from the pocket of the complainant and thereafter accused No. 1 namely Satish Kumar Singh demanded Rs. 1,00,000/- as bribe, failing which he threatened the complainant for being implicated in the case of theft of electricity. It is also alleged that accused 3 persons tampered with the seal of the meter installed in the premises and on protest, the complainant was again assaulted. It is also alleged that accused Satish Kumar Singh picked up Rs. 10,000/- from table of the office of G. Plastic and handed it over to Nanhe Lal. Accused persons also took away the electric meter installed in the premises of the industry after disconnecting the electric supply. It is further alleged that demand of illegal gratification used to be made since last six months. For the occurrence of 15.07.2004 the complaint was filed on 16.07.2004 whereas the complainant was examined on S.A. on 02.08.2004 and the only witness was examined on 22.09.2004 and ultimately cognizance was taken on 28.01.2008. Learned senior counsel for the petitioners submits that the complaint was filed with frivolous allegations at the behest of the owners of G. Plastic, since petitioner No. 2 namely Nanhe Lal Ram had lodged Khajekalan P.S. Case No. 130 of 2004 on 15.07.2004 against the owners of M/S G. Plastic for committing offence under Sections 406, 420, 378/34 of the I.P.C. and Sections 135 and 138 of the Electricity Act with specific accusation of electricity theft. The F.I.R. of the said case has been brought on record as Annexure-4 to the present application, hence the present complaint has 4 been filed as retaliatory measure. It is further submitted that complainant in his S.A. has admitted that he being in the capacity of Munshi-cum Manager of M/S G. Plastic looks after the entire industry but does not remember either the number of the meter or the consumer number. He also admits about institution of case by the Electricity Department whereas the enquiry witness Suresh Yadav has admitted that he was engaged in the factory for packaging on 15.07.2004 at 3:30 P.M. and came to the office of the factory on alarm being raised and found the Executive Engineer, the S.D.O. and the Junior Engineer there. Reliance has been placed on the ratio laid down in the cases of State of Haryana & Others versus Bhajan Lal & Others reported in 1992 Supp (1) SCC 335, Baijnath Jha versus Sita Ram & Another reported in 2008(8) SCC 77 and Subedar Singh & Others versus District Judge, Mirzapur & Another reported in AIR 2001 SC 201. Prima facie it appears that the case was lodged maliciously as retaliatory measure since substantive case of electricity theft was lodged on 15.07.2004 by petitioner No. 2 against the owners of the industry in question. The accusations made in the complaint are so absurd and inherently improbable, that on the basis of which no 5 prudent person can ever reach to a conclusion that there existed sufficient grounds for proceeding against the petitioners. Non application of mind as submitted by learned senior counsel for the petitioners is apparent from the fact that the complainant and the enquiry witness admit in their evidence that there was some dispute with regard to electricity connection but no question was asked by the learned Court below about lodging of any case by the Electricity Department and this trend on the part of the learned Courts below have been deprecated by the Apex Court in the case of Pepsi Foods Ltd. & Another versus Special Judicial Magistrate & Others reported in (1998) 5 SC 749 by laying down ratio that Court is required to ask questions in order to come to the conclusion that prima facie the case exists as the Courts taking cognizance are not silent spectators. Paragraph 28 of the said judgment 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 complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of 6 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 scrutinize 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.” The non application of mind by the learned Court below is further apparent from the fact that the order of cognizance dated 28.01.2008 reflects that the order was passed on the basis of statement of the complainant on S.A and on the statement of two enquiry witnesses namely Gopi Kumar and Suresh Yadav though actually 7 only Suresh Yadav, apart from the complainant, was examined under 202 Cr.P.C. However the learned Court below tried to rectify this mistake after about six months of the order of cognizance on 08.07.2008 which is nothing but a good example of the perfunctory manner in which the cognizance of offences are being taken in the complaint cases by learned Magistrates, which prima facie erodes the effect of the order taking cognizance. It is further contended that the order of cognizance is barred by the law of limitation as incorporated under Section 468 of the Cr.P.C. as the complaint was filed on 16.07.2004 for the occurrence of 15.07.2004, whereas the cognizance was taken on 28.01.2008 for the offences under Sections 323, 427, 504/34 for which the maximum punishment prescribed is two years. This Court also finds substance in the submission of the learned senior counsel for the petitioners, that cognizance order is barred under Section 468 of the Cr.P.C. It is also contended that the order of cognizance is also bad as no sanction either under Section 197 of the Cr.P.C. or 168 of the Electricity Act was taken, since the accusation was directly connected with the purported discharge of duty of the petitioners. This Court finds substance in the contention of the 8 learned Senior counsel for the petitioners. However learned counsel for the State submits that on finding a prima facie case the Court has taken cognizance in the matter. Considering the submissions and discussions made above, this Court is of the view that the order of cognizance is bad in law and facts as well and continuation of the proceeding will amount to abuse of the process of the Court. Accordingly the order of cognizance dated 28.01.2008 passed by learned Judicial Magistrate, Ist Class, Patna including the entire proceeding of Complaint Case No. 539 of 2004 with regard to petitioners are hereby quashed. Shageer ( Dinesh Kumar Singh, J)