Braj Kishore Kumar vs State of Jharkhand and Others

Rongon Mukhopadhyay, J.—Heard Mr. A.K. Sahani, learned counsel appearing on behalf of the petitioner, Mr. Awnish Shankar, learned counsel appearing on behalf of the opposite party No. 2 and Mr. M.B. Lal, learned counsel appearing on behalf of the State.

In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Complaint Case No. 1478 of 2009 including the order dated 28.02.2011 passed by Sri Alok Kumar, learned Judicial Magistrate, Hazaribagh whereby and whereunder, cognizance has been taken for the offences punishable under Sections 406, 420, 504, 506, 120B of the Indian Penal Code and also under Sections 3(i)/(viii)/(x) of the SC and ST (Prevention of Atrocities) Act, 1989.

The prosecution story as would appear from the complaint petition is that the accused received a cheque of Rs. 53,000/- for providing cement to the complainant but the said supply was not made. It has further been alleged that even the complainant asked the accused to return the cheque the accused abused him by making insinuations about his caste. After the complaint case was instituted enquiry was conducted by the learned Judicial Magistrate and having found no case made out vide order dated 23.01.2010 the learned Judicial Magistrate, 1st Class, Hazaribagh in Complaint Case No. 1478 of 2009 was pleased to dismiss the complaint under Section 203 of the Cr.P.C.

Against the aforesaid order dated 23.01.2010 a revision was preferred by the complainant-opposite party No. 2. The revisional court vide order dated 24.06.2010 was pleased to set aside the impugned order dated 23.01.2010 and the matter was remanded back to the concerned court to pass a fresh order on the point of cognizance. Pursuant to the remand a fresh order was passed on 28.02.2011 by the learned Judicial Magistrate, Hazaribagh in which processes were issued under Sections 406, 420, 504, 506, 120B of the Indian Penal Code read with Sections 3(i)/(viii)/(x) of the SC and ST (Prevention of Atrocities) Act, 1989.

Learned counsel for the petitioner has assailed the impugned order taking cognizance by submitting that the entire dispute was non-refunding of the amount of Rs. 53,000/- which was alleged to have been given to the petitioner for the purposes of supply of cement for construction of the house. He has further submitted that non-payment of the said amount will not come within the definition of a criminal breach of trust. It has also been submitted by the learned counsel for the petitioner that the complainant has failed to show in his complaint petition that there was deception on the part of the petitioner from very inception and in such circumstances no criminal offence is being made out as against the petitioner. It has also been submitted by the learned counsel for the petitioner that while passing the order dated 28.02.2011 the learned Judicial Magistrate, Hazaribagh was influenced by the order dated 24.06.2010 passed in Criminal Revision No. 24 of 2010 as nowhere the order indicates that the learned Judicial Magistrate, Hazaribagh had applied his judicial mind while taking cognizance.

Learned counsel for the opposite party No. 2, on the other hand, has submitted that the order dated 28.02.2011 reflects that the complaint petition was perused and the evidence of the witnesses examined in course of the enquiry was also taken into consideration and thereafter, cognizance was taken for the offences mentioned therein. He, thus, submits that the Magistrate has only to see that there are sufficient grounds for proceedings and not sufficient grounds for conviction. According to the learned counsel for the opposite party No. 2, there is no error or illegality on the part of the learned Judicial Magistrate while taking cognizance on 28.02.2011.

After hearing the learned counsel for the parties and after going through the records, I find that after the complaint case was dismissed on 23.01.2010 a revision was preferred by the opposite party No. 2 in Criminal Revision No. 24 of 2010 in which an order was passed on 24.06.2010 by which the matter was remanded back to the learned Judicial Magistrate to pass a fresh order on the point of cognizance. It appears that the learned revisional court has given a finding which is quoted hereinunder:--

"After hearing the learned counsels for the parties, perused the L.C.R. from which it appears that the complainant was examined on S.A. and in his statement he has supported the case of prosecution. In course of enquiry U/s. 202 one witness C.W. 1 Laxmi Narayan was examined, who has also supported the case of prosecution. As per the decision reported in 2006 (1) AIR (Jhr) 598 at the stage of enquiry the Magistrate is expected to see only where there are sufficient grounds for proceeding against the accused for an offence. He cannot go into truth or otherwise of allegation made in the complaint." 8. It appears that after the matter was remanded back to the learned Judicial Magistrate to pass a fresh order on the point of cognizance and while doing so the learned Judicial Magistrate, Hazaribagh was perhaps swayed by the order of the revisional court dated 24.06.2010 as the order dated 28.02.2011 does not reflect that there was independent application of judicial mind on the part of the learned Judicial Magistrate as in terms of the direction of the learned Sessions Judge in Criminal Revision No. 24 of 2010 process has been issued under Sections 406, 420, 504, 506, 120B of the Indian Penal Code read with Sections 3(i)/(viii)/(x) of the SC and ST (Prevention of Atrocities) Act, 1989. The order dated 28.02.2011 is quoted hereinunder:--

"Complaint has filed attendance. On perusal of complaint case as well as enquiry as produced by complainant and as per the direction of Distt. and Sessions Judge in Cr. Revision No. 24 of 2010 dated 24/06/2010, it is appropriate to issue process u/s. 406/420/504/506/120(B) of the I.P.C. read with Section 3(i)/(viii)/X of SC/ST (Atrocities) Act. Complaint to file necessary requisites etc. to issue summons upon accused. Put up on 7.3.11." 9. The order clearly reveals that the order dated 28.02.2012 has been passed straightway for issuing processes against the accused persons and nowhere it has been mentioned in the said order that the learned Judicial Magistrate, Hazaribagh was prima facie satisfied that there are sufficient grounds for proceeding against the accused persons. In such situation, this Court has no alternative but to remand the matter back to the learned Judicial Magistrate, Hazaribagh for reconsideration on the point of cognizance.

Accordingly, this application is allowed and the order dated 28.02.2011 passed in connection with Complaint Case No. 1478 of 2009 by Sri Alok Kumar, learned Judicial Magistrate, Hazaribagh is quashed and set aside and the matter is remanded back to the concerned court to pass a fresh order in accordance with law.

This application is allowed and disposed of.