Crl. M. C./4/2008 of Gagan Rai Vs Dr. A D. Subba and Others on 7 December 2009

.,-

prJtre

THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Jurisdiction)

Crl. M. C. No.4 of 2008

Gagan Rai,S/o Late Santa Bir Rai,R/o Kazitar, Namchi,South Sikkim...... Petitioner/Applicant

versus

Dr. A. D. Subba,

Sikkim Himali Rajya Parishad Party,Presently residing at Daragaon,Presently residing at Daragaon, Near Convey Ground, Opposite S.B.I. Tadong, P.O. & P.S. Tadong,East Sikkim.

Shri T. 8. Thatal,Vice President,Sikkim Himali Ra].ya Parishad Party,R/o of Tadong,31A National Highway,P.O. & P.S. Tadong,Gangtok'East Sikkim.Vice President,Sikkim Himali Ra].ya Parishad Party,R/o of Tadong,31A National Highway,P.O. & P.S. Tadong,Gangtok'East Sikkim.

Shri Tara Shrestha,General Secretary,

Sikkim Himali Ra].ya Parishad Party,Presently residing at Deorali School Road,P.O. Deorali,P.S. Gangtok,East Sikkim.

4. State of sikkim

...„ Respondents

For Petitioners

Mr. A. Moulik, learned seniorcounsel assisted by Mr. JorgayNamka, Ms. Zola Megi and Mr.8. K. Rai, learned counsel.

ForRespondent:Nos.1,2&3 : Mr. K. T. Bhutia, learned senior counsel assisted by Mr.Dinesh Agarwal and Mr.Bikash Gurung, learnedcounsel.Dinesh Agarwal and Mr.Bikash Gurung, learnedcounsel.

.-*,

For Respondent No.4

Mr, J. 8. Pradhan, learnedPublic Prosecutor, Mr. KarmaThinlay, learned AdditionalPublic Prosecutor with Mr.Santosh Kumar Chettri,learned Assistant PublicProsecutor.

PRESENT = HON'BLE MR. JUSTICE A, P. SUBBA, JUDGE.

Last date of hearing : 05-11-2009

DATE OF JUDGMENT = 07-12-2009

I ± J2 £ M I H I

Subba, J.

This is an application filed under Section 482 of theCode of Criminal Procedure, 1974 (in short "the Code|. It isdirected against the impugned Order dated 31-07-2008 passed inCriminal Revision No.4 of 2006 passed by the Sessions Judge,South & West at Namchi whereby the order dated 18-04-2007passed by the learned Judicial Magistrate, South at Namchi in Cri.Private Complaint Case No.2 of 2007 taking cognizance of theoffence was quashed.

2. The brief facts relevant for the present purpose arethat the petitioner herein filed a complaint under Sections 499,500, 501/34 of the Indian Penal Code against the respondentsherein before t:he Court of learned Judicial Magistrate, South atNamchi alleging /.nfer a//.a, that the respondent had committed anoffence of defamation by submitting a memorandum on baselessmat:erials to His Excellency the Governor of Sikkim and also by N, circulating a pamphlet which contained allegations t:hat thepetitioner had procured and transported arms illegally into Sikkimwith the ob].ective of using the same against the respondents forwhich a hit list of the respondents had been prepared. Thelearned Judicial Magistrate at Namchi examined the complainantand took cognizance of the offence and directed issue ofsummons. Aggrieved by this order, the respondents hereinmoved the learned Sessions Judge, South & West at Namchi inrevision for sett:ing aside the order dated 18-04-2007 passed bythe learned Judicial Magistrate. The learned Sessions Judge afterhearing the parties came to the conclusion that the impugnedorder was not sustainable in law in so far as the learnedMagistrate had passed the same without any application of mindand accordingly, quashed it. It is against this order passed by thelearned Sessions Judge that t:he petitioner has come up in thepresent revision application before this Court.

3. The learned counsel for both the part:ies including thelearned Public prosecutor were heard at length.

4. It was submit:t:ed by Mr. A. Moulik, learned seniorcounsel for t:he petitioner that the impugned order was passed bythe learned trial Court after examining the complainant andapplying its mind to the matter as required under the law.However, the learned appellate Court, i.e., the learned SessionsJudge, South & West at Namchi quashed the order withoutproperly appreciating the legal aspect of law and thereby T

assuming ].urisdiction not vested in him by law. According to thelearned counsel the prerogative exercised by the learnedMagistrate in taking cognizance in the present case cannot beinterfered on technical grounds. As against this submission thecontention of Mr. K. T. Bhutia, learned senior counsel appearingfor the respondents is that since the learned. Judicial Magistratepassed the order of taking cognizance without giving any reasonsthe same suffered from non-application of mind and as such, nottenable in t:he eye of law.

As can be noticed from he rival submissionenumerated above, the questions that arise for determination arewhet:her the order of taking cognizance passed by the learnedMagistrate, South at Namchi on 18-04-2007 is according to lawand if so, whether the order passed by the learned first AppellateCourt quashing the above order was sustainable in law.

6.

6. The impugned order passed by the learned JudicialMagistrate reads as follows:- ``18.04.2007 Seen the complaint U/S499/500/501/34, I.P.C. filed by thecomplainant, Shri Gagan Rai through Ld.Counsel, Shri 8. K. Rai and Ld. Counsel,Shri A. J. Sharma.

Ld. Counsel, Shri 8. K. Rai and ShriA. J. Sharma has filed their Vakalatnamawhich is accepted and placed on record.

The names and addresses of theAccused persons and the list of witnesseshas been filed by the complainant.

The complaint is examined on oat:h.

Cognizance t:aken.

Register is as Private ComplaintCase.

Issue summons along wit:h copies oft:he complaint to the accused persons,returnable by: 15.05.07.

To: 15.05.07

For: Appearance of accusedpersons

A bare reading of the above order goes to show that thelearned Court took cognizance of the offence after duly examiningthe complainant in accordance with law. It is aft:er taking suchcognizance that the summons were ordered to be issued on theaccused persons, i.e., the present respondents.

In his order under challenge before this Court, the learned Sessions Judge opined as follows:- ``6 ......................, In my opinion t:helearned Counsel for t:he petitioners is right insaying that the impugned order is vague,laconic and without application of mindinasmuch as it has not been mentioned as tounder what sections of law the case is to beregistered and process is to be issued againstthe accused persons."

For coming to such conclusion, t:he learned Sessions Judgerelied on a Single Bench decision of this Court rendered in A. K.lain and Ano. vs. State of Sikkim and Ano. reported -ir\ 1992

CRJ. I. J, 843. The observation relied on and which occurs inparagraph 10 of the I.udgment reads as follows:- ``The issue of process under S.204 ordismissal of complaint under S.203 is a matterfor ].udicial determination and where the ordersummoning the accused does not showapplication of mind of the magistrate and

A-

REE=

discusses no evidence, the order, not being aspeaking order, is liable to be quashed."

8. A bare reading of the above observation makes' itclear that an order directing issue of process passed underSection 204 must be a speaking order. The question, however, iswhether the ratio of the case applies t:o the facts of t:he presentcase. In order t:o find an answer to it, I find it sufficient t:o referto the following observation in the beginning of the sub-paragraphof paragraph 10 of the ].udgment made by the learned Bench:- ``Where the allegations disclose theessential ingredients but are patently absurdand inherently improbable so that no prudentperson can ever reach a conclusion that there issufficient ground for proceeding against anaccused, then also the complaint has to berejected."

9. The above makes it: clear that the observation reliedon by the learned lower Appellate Court was made in the light ofthe peculiar facts and circumstances of the said case. In thepresent case, there is no question of the allegations beingpatently absurd or inherently improbable. The only submissionmade by Mr. Bhutia is that the acts complained of would fallunder the exceptions engrafted in the Section. However, this isnot the stage when the question raised by t:he learned counselcan be taken up for consideration. It is thus obvious that t:heobservation relied on by the learned Appellate Court below wasmade in a different background keeping i.n view the peculiar factsand circumstances of the case. It thus follow that the said observation does not apply to the fact:s of the present case. Evenot:herwise the law on the point is no longer res 7.r}tegra. Section190 which deals with cognizance of offence by Magistrate andSection 204 of t:he Code which deals wit:h issue of process hascome up for consideration in a number of decisions both of theHigh Courts as well as the Apex Court and in all these decisions ithas been made explicitly clear that at the stage of issue ofprocess by the Magistrate all that is to be seen is whether anyoffence appears to have been committed and if so by whom.Thus, the opinion to be formed by the Magistrate takingcognizance is restricted to there being sufficient ground forcommencement of proceeding against the accused persons. TheMagistrate can be said to have taken cognizance of complaintwhen on receiving a complaint he applies his mind for the purposeof proceeding under Sect:ion 200 and succeeding Sect:ions underChapter XV of t:he Code. These decisions also make it clear thattaking cognizance means cognizance of offence and not ofoffenders and as such, cognizance does not mean commencementof proceeding against anyone. All that the word ``cognizance"ordinarily means is that the Magistrate has come to the conclusionthat there is a case to be enquired into.

]0. A perusal of the impugned order passed by thelearned Court of Judicial Magistrate in the light of the above legalposition does not show that the same suffers from any irregularityor illegality which ].ustifies any interference by the RevisionalCourt.

dr

-a

±]. Coming to the decisions rendered by some of the HighCourts of the country, we may refer to the decision rendered bythe Patna High Court as far back as 1948 in Da/u Gour andr Ors.vs. Moheswar Mahato reported -in AIR (35) 1948 Patna 25.In this case, the High Court following a Calcutta High Courtdecisjion rendered .ir\ Hafijar Feahman vs. Aminal Hoquereported in AJR ]94] Ca/cuffa 185 observed as follows:- "Taking cognizance does not involve anyformal action or indeed action of any kind, butoccurs as soon as a magistrate as such applieshis mind to the suspected commission of anoffence."

To t:he same effect are the observations made by a SingleBench of Orissa High Court in Hat;a Swain vs. art;nfaman;Mtshra reported in Z990 CRI. i, J. 47. In this case, the learnedSingle Bench relying on a decision of Allahabad High Court inRatan Singh vs. Kusum reported .in (1984) 1 Crimes 690observed in paragraph 5 as follows:- "Thus while summoning the accusedunder S.204, Cr.P.C. the Maaistrate is onlv toform an oDinion that: he is to take coanizance ofthe offence and that: there is sufficient aroundfor Droceedina aoainst the accused. When S.204 does not rec]uire recordina the reasons, theorder of summonina the accused need not be aSDeakina order." [emphasis suppiied]

In the AIlahabad High Court case referred to above it wasobserved on a careful comparison of t:he provision of Sections 203and 204 of the Code that whereas S.202 provides t:hat whiledismissing a complaint the Magist:rat:e has to record briefly the -i- -a reasons for doing so, S. 204 which provides for issuing of process,does not lay down that in that event t:he Magistrate has to recordthe reasons.

To add one more decision on the point reference may bemade to the observation made by Ra].asthan High Court inBrahmachari Lalit Baba vs. State of Fzajasthan & Ors.reported in ]997 f]J Ctr.mes 258. The relevant observation isas follows : - ``For taking cognizance, a prima facie caseis to be established. Meticulous examinationabout probabilities or improbabilities ofinvolvement of accused does not: arise."

±2, Now coming to the position of law as laid down bythe Apex Court on the point, I find it sufficient to refer to thefollowing decisions:- Laying down the general guidelines which a Court isrequired to follow in different stages of the criminal trial, the ApexCourt .in Kanti Bhadra Shah and Ano. vs. State of W.B.reported in (2000J I SCC 722 in paragraph 12 observed asfollows:-

``If there is no legal requirement that t:het:rial court should write an order showing thereasons for framing a change, why should t:healready burdened trial courts be furtherburdened with such an extra work. The timehas reached t:o adopt all possible measures toexpedite the court procedures and t:o chalk outmeasures to avert all roadblocks causingavoidable delays. If a maaistrate is to writedetailed orders at: different staaes merelybecause the counsel would address araumentsat all staaes, the snail-Paced Droaress ofDroceedinas in t:rial courts would further beSlowed down." [emphasis supplied]

EE

The Court in the same paragraph further observed:- "But it is auite unnecessarv to writedetailed orders at other st:aaes, such as issuinaProcess, remanding the accused to custody,framing of charges, passing over to next stagesin the trial." [emi.hasis supplied]

I.n u.P. Pollution Control Board vs. M/s. MohanMeakins Ltd. and Ors. reported -\r\ AIR 2000 SC 1456 whiich .isdirectly on the point, the Apex Court has clearly observedfollowing it:s earlier decision rendered in the above Kan[j BhadraShah case that there is no such legal requirement imposed on amagistrate for passing detailed order while issuing summons.

in Deputy Chief Controller of Imports and Exports vs,Ftoshanlal Agarwal and Ors. reported .in 2003 SCC (Cri) 788the question which came up before the Court was whether anorder only stat:ing that ``Cognizance taken. Register the case.Issue summons to the accused." amounts to taking cognizanceHolding that such an order was sufficient in law the Hon'bleSupreme Court observed that t:he Magistrate is not: required torecord the reasons at the stage of issuing the process to theaccused.

In a later decision rendered in CHEF Ft.nonce frdl. vs.SI.ree Shanthi Homes (P) Ltd. and Ors. reported -in (2005) 7SCC 467 the Apex Court has clearly held that once the Court onperusal of the complaint is satisfied t:hat the complaint discloses i- a the commission of an offence and there is no reason to re].ect thecomplaint at the st:age, and proceeds further in the matter, itmust be held to have taken cognizance of the offence. Absence ofwords ``cognizance taken" in the order would make no difference.

Z3. Even though number of other decisions have beenrelied upon by the learned counsel for the petitioner, I find itunnecessary to multiply the decisions /.nasmuch as the decisionscited above make the point more than clear and leave no room fordoubt that at the st:age of issue of process no speaking order isrequired.

14. Of course, one more point raised by the learnedcounsel for the respondents that needs to be addressed beforecoming to any final conclusion is that t:he order was bad in law asthe learned Judicial Magistrate had failed to mention the Sect:ionof law under which cognizance was taken. This plea as well doesnot further the case of the respondents in so far as it is a settledposition in law that it is only at the stage of framing charge underSections 211 of the Code that the offence which the accused hasbeen charged is determined and it is stat:ed by specific name anddescr.iptlion [see Ashwani Kumar and Ors. vs. Dell.iAdministration etc. reported .in 1992 CRI. L. J. 446 Dell.

15. It thus follows that the order passed by the learnedSessions Judge, Sout:h and West at Namchi quashing the order oftaking cognizance by the learned Judicial Magistrate is notsustainable in law. Accordingly, the order passed by the learned IT

''0

ds/

Sessions Judge, South & West at Namchi is hereby quashed andset aside. The order passed by the learned Judicial Magistrate,Sout:h at Namchi is accordingly restored.

±6. The learned trial Court shall proceed with the matt:eraccording to law and dispose of the mat:ter as early as possible.

]7. A copy of the judgment be sent to the court below for information and compliance. .

18. The lower court records may be returned forthwith.

Subba )

( JusticJudge07-12-2009

-,