The Court in exceptional cases can exercise power under Section 482 CrPC for quashing cases to prevent misuse of provisions on settled parameters: High Court Of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 5621 1. Binoy Kumar Jha @ Binay Kr. Jha aged 56 years S o Nitya Nand Jha R o Village House No.87 Ward No.02 P.O. & P.S. Pathrol Dist 2. Vikash Kumar Jha @ Bikash Kr. Jha aged 25 years S o Bameshwar Nath Jha R o Village Lakhibazaar Jamini P.O. & P.S. Pathrol Dist 3. Bameshwar Nath Jha aged 50 years S o Harendra Nath Jha R o House No.86 Ward No.02 near durga mandir P.O. & P.S. Pathrol District Deoghar 4. Nalini Kumar Jha @ Nalini Jha aged 44 years S o Shivnath Kumar Jha R o village Lakhi Bazaar P.O. & P.S. Pathrol District Deoghar 5. Ashutosh Kumar Jha @ Asutosh Kr. Jha aged 42 years S o Shivnath Kumar Jha R o House No.86 Ward No.02 P.O. & P.S. Pathrol District 6. Rajeev Kumar Jha @ Rajiv Kr. Jha aged 35 years S o Shivnath Kumar Jha R o House No.86 Ward No.02 P.O. & P.S. Pathrol District Shivnath Jha aged 67 years S o Harendra Nath Jha House No.86 Ward No.02 P.O. & P.S. Pathrol District Deoghar 8. Abhay Kumar Jha aged 29 years Binoy Kumar Jha R o Ward No.02 P.O. & P.S. Pathrol District Deoghar 9. Ajay Kumar Jha aged 32 years S o Binoy Kumar Jha R o village Jamuni P.O. & P.S. Pathrol District Deoghar … Petitioners The State of Jharkhand … Opposite Party Versus CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the Opposite Party State Mr. Nitish Bhardwaj Advocate Mr. Shailendra Kumar Tiwari Spl.P.P. Heard Mr. Nitish Bhardwaj learned counsel for the petitioners and Mr. Shailendra Kumar Tiwari learned Spl.P.P. appearing for the opposite party State. This petition has been taken through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been The petitioners have filed this petition for quashing the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M. Madhupur in connection with Pathrol P.S. Case No.56 2019. The prosecution story in the FIR is that the complaint petition being Complaint Case No.163 2019 was filed by the complainant namely Godawari Devi which was sent under Section 156(3) Cr.P.C. for institution of FIR and accordingly the present FIR has been lodged alleging therein that on 14.05.2019 all the accused persons were making drainage and the complainant was also doing the same and all the accused gathered there and started abusing the complainant and for that complainant s son informed the O c of Pathrol Police Station. On 14.05.2019 at 04:00 p.m. accused namely Abhay Kumar Jha clutched the complainant by her hair and dragged her to the road where all the accused persons torn her dress and Abhay Kumar Jha forcefully opened her mouth and pour the stool into her mouth with statement that the complainant is a witch. It was further alleged that all the accused snatched a silver chain of 5 grams worth Rs.4 000 and a payal of silver of 8 grams worth Rs.6 500 and also alleged that the complainant is a witch who use to kill children and cattle Learned counsel for the petitioners submits that the matter was investigated by the police and after investigation the police has not sent up the petitioner for trial and submitted final report in favour of the petitioners showing their name in column 12 of the final report bearing Final Report No.20 2019 dated 31.12.2019 showing that offences non cognizable. After submission of final report in favour of the petitioners the learned Magistrate has taken cognizance against the petitioners under Sections 323 504 34 of IPC vide order dated 14.09.2020 although the Investigating Officer after investigation not sent up for trial to these petitioners. He further submits that the learned Magistrate has taken cognizance against the petitioners in a mechanical manner and without assigning any reason as to why he is differing from the opinion of the Investigating Officer who after investigation not sent up these petitioners for trial. He also submits that the learned Magistrate has power to differ from the opinion of the Investigating Officer but in that condition he has to assign reason as to why he is differing from the opinion of the Investigating Officer. Learned Spl.P.P. appearing on behalf of the opposite party State submits that there is no illegality in the impugned order. He further submits that it is well within the domain of the Magistrate to proceed further if he comes to a conclusion that there is prima facie case to proceed against the In view of the above facts the Court has examined the F.I.R as well as complaint petition. The police after investigation the police has not sent up the petitioners for trial and submitted the final report in favour of the In the judgment rendered in the case of Prathvi Raj Chauhan v Union of India and Others reported in4 SCC 727 it has been held that the proceeding can be quashed under section 482 of the Code and it is held in paragraph no.12 of the said judgment which is quoted herein below : “12. The Court can in exceptional cases exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters as already observed while deciding the review petitions. The legal position is clear and no argument to the contrary has The law is well settled with regard to material under section 202 Cr.P.C which has been considered by the Hon ble Supreme Court in the case of Swaraj Thackeray v. State of Jharkhand and Ors reported in 2008) CriLJ 3780. Paragraph no.7 of the said judgment is quoted herein 10. Subsequently the Hon ble Supreme Court has held in the case of Dy Chief Controller of Imports and Exports v. Roshanlal Agarwal and Others reported in4 SCC 139 at paragraph no.9 which is quoted “7. From the impugned order I find that the learned Magistrate after considering the allegations made in the complaint petition and the materials adduced during enquiry under Section 202 Cr.P.C found prima facie case made out for commission of the offence under section 153 A 153 B and 504 of the Indian Penal Code against the petitioner Swaraj Thackeray @ Raj Thakeray and thereafter directed the complainant to file requisite for issuance of process. At the stage of taking cognizance a detailed order discussing the evidence in detail is not required to be passed by the Magistrate. The order taking cognizance but should show that the Magistrate has applied his mind before taking cognizance and from the impugned order it appears that the Magistrate after applying his mind has taken cognizance and therefore it cannot be said that the impugned order suffers from non application of mind.” “9. In determining the question whether any process is to be issued or not what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. it was held as follows:5 SCC 749 in which the Hon’ble Supreme Court has held that to set criminal proceeding in motion is a serious matter which requires to be looked into minutely. Accordingly the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M. Madhupur in connection with Pathrol P.S. Case No.56 2019 is hereby quashed This criminal miscellaneous petition is therefore allowed and Ajay (Sanjay Kumar Dwivedi J

Summary: There was no such legal requirement imposed on a Magistrate for passing detailed orders while issuing summons. The process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mr. Justice Sanjay Kumar Dwivedi in the matter of Binoy Kumar Jha @ Binay Kr. Jha and Ors Vs. The State of Jharkhand [Cr.M.P. No. 565 of 2021]. The facts of the case were associated with a petition to quash an order passed by the S.D.J.M Madhupur in relation to Pathrol P.S. Case No.56/2019 dated 14.09.2020. In the FIR it was alleged that a drainage was built by the accused. The complainant Godawari Devi did the same, aut all the accused person began to abuse the complainant by dragging her by her hair, tore her dress, forcefully opened her mouth and poured the stool into her mouth with the statement that the complainant was a witch. Further, the accused people a silver chain and silver payal and they stated that the complainant was a witch who killed children and cattle.  The counsel representing the petitioner submitted that the police after investigation did not send the petitioner for trial. The final report in favour of the petitioners showing their name in column 12 of the final report was submitted which showed that the offences were non-cognizable. It was stated that the Magistrate took cognizance against the petitioners.The petitioner’s counsel also submitted that the learned Magistrate had power to differ from the opinion of the Investigating Officer, but he was required to give reasons for the same. The Public Prosecutor for the state stated that the Magistrate have the power to proceed against the petitioners if there was a prima facie case.  The Hon’ble Court after going through all the submissions and facts held that “It is well settled that no detailed order is required for passing any order for summoning the accused but in a case where Final Report has already been submitted in favour of the accused and the Magistrate is intending to proceed on a complaint petition, he is required to make reasons of differing with the Final Report, which has not been done in the case in hand… Accordingly, the order taking cognizance dated 14.09.2020 passed by the learned S.D.J.M., Madhupur in connection with Pathrol P.S. Case No.56/2019 is hereby quashed… This criminal miscellaneous petition is, therefore, allowed and disposed of.”