Criminal Application (APL) No.22 of 2017

10th September, 2018.

Petitioner Counsel: Petitioner-in-person.
Respondent Counsel: Shri M.K. JOHARAPURKAR, Shri B.M. LONARE

Cases Cited:
Anil Kumar and others Vs. M.K. Aiyappa and another, 2013 ALL SCR 3464=(2013) 10 SCC 705 [Para 7]
S.R. Sukumar Vs. S. Sunaad Raghuram, 2015 ALL MR (Cri) 2898 (S.C.)=(2015) 9 SCC 609 [Para 7]
Sunil Bharti Mittal Vs. Central Bureau of Investigation, 2015 ALL MR (Cri) 812 (S.C.)=(2015) 4 SCC 609 [Para 7]
Chandra Deo Singh Vs. Prakash Chandra Bose alias Chabi Bose and another, (1964) 1 SCR 639 [Para 7]
Sonu Gupta Vs. Deepak Gupta and others, 2015 ALL MR (Cri) 1192 (S.C.)=Cri. Appeal Nos.285/287/2015, Dt.11.2.2015 (SC) [Para 7]
Bhushan Kumar and another Vs. State (NCT of Delhi) and another, 2012 ALL SCR 1360=Cri.Appeal No.612/2012, Dt.4.4.2012 (SC) [Para 7]
UP Pollution Control Board Vs. M/s. Mohan Meakins Ltd. And others, 2000 ALL MR (Cri) 1046 (S.C.)=SLP (Cri.) No.3978/1999, Dt.27.3.2000(SC) [Para 7]
Kanti Bhadra Shah and another Vs. State of West Bengal, 2000 ALL MR (Cri) 1013 (S.C.)=Cri.Appeal No.5/2000, Dt.5.1.2000 (SC) [Para 7]
Dy. Chief Controller of Imports & Exports Vs. Roshanlal Agarwal and others, Cri.Appeal Nos.1656-1663/1995, Dt.5.3.2003 (SC) [Para 7]

JUDGMENT

JUDGMENT :- Heard.

2. Admit.

3. Heard forthwith by consent.

4. The petitioner appearing inperson, submits that the impugned order is illegal for the reason that it is well settled law that while issuing process, the Magistrate has to apply his mind to the facts of the case and decide if any prima facie case is made out or not, though it is not necessary for the Magistrate to write a detailed order. He submits that a short order giving a summary of the reasons is enough in such a case and this is exactly what the learned Magistrate has done in the present case. He further submits that the order passed by the learned Magistrate on 7.11.2014, though a one paragraph order discloses that the process has been issued by the Magistrate only after application of his mind as he has considered not only allegations made in the complaint, but also all the documents and various orders of the Court which gave support the allegations.

5. Shri M.R. Joharapurkar, learned counsel for the respondent No.1 however, disagrees. He submits that a bare perusal of the order passed by the Magistrate would be sufficient to show that how it has been passed without any judicial application of mind to the facts alleged in the complaint and other documents filed along with the complaint. He submits that there is no dispute about the proposition of law that a detailed order while issuing process is not required. He further submits that the settled position of law is that the order must reflect application of mind by the Magistrate to the facts of the case and his satisfaction, at least for the purpose of taking cognizance of the offence alleged in the complaint about the prima facie case made out in that regard.

6. Learned Additional Public Prosecutor for respondent No.2 submits that an appropriate order in the matter be passed.

7. Shri M.R. Joharapurkar, learned counsel for respondent No.1 in support of his submission has relied upon following cases :

(i) Anil Kumar and others vs. M.K. Aiyappa and another, reported in (2013) 10 SCC 705 : [2013 ALL SCR 3464].

(ii) S.R. Sukumar vs. S. Sunaad Raghuram, reported in (2015) 9 SCC 609 : [2015 ALL MR (Cri) 2898 (S.C.)].

(iii) Sunil Bharti Mittal vs. Central Bureau of Investigation, reported in (2015) 4 SCC 609 : [2015 ALL MR (Cri) 812 (S.C.)].

(iv) Chandra Deo Singh vs. Prakash Chandra Bose alias Chabi Bose and another, reported in (1964) 1 SCR 639.

The learned counsel for the petitioner has relied upon following cases :

(i) Sonu Gupta vs. Deepak Gupta and others, Judgment delivered by Hon'ble Supreme Court, in Criminal Appeal Nos.285 - 287 of 2015 : [2015 ALL MR (Cri) 1192 (S.C.)], on 11th February, 2015.

(ii) Bhushan Kumar and another vs. State (NCT of Delhi) and another, Judgment delivered by Hon'ble Supreme Court, in Criminal Appeal No.612/2012 : [2012 ALL SCR 1360], on 4th April, 2012.

(iii) Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal and others, Judgment delivered by Hon'ble Supreme Court in Appeal (Cri.) 1656-1663 of 1995, on 5th March, 2003.

(iv) UP Pollution Control Board vs. M/s. Mohan Meakins Ltd. And others, Judgment delivered by Hon'ble Supreme Court in Special Leave Petition (Cri.)3978 of 1999 : [2000 ALL MR (Cri) 1046 (S.C.)], on 27th March, 2000.

(v) Kanti Bhadra Shah and another vs. State of West Bengal, Judgment delivered by Hon'ble Supreme Court in Appeal (Cri.) 5 of 2000 : [2000 ALL MR (Cri) 1013 (S.C.)] on 5th January, 2000.

8. The aforestated cases settle the legal position in the matter. According to it, a Magistrate holding the preliminary inquiry has to be satisfied by applying a judicial mind that a prima facie case is made out against the accused and that it is not necessary for the Magistrate to pass a detailed order. Examining the order passed by the learned Magistrate on these parameters, I find that the Magistrate has mechanically passed the order dated 7.11.2014 whereby he issued process against the respondent No.1. At this stage, there is no reason for me to express any opinion about the issuance of process by the Magistrate against the remaining accused, as they have not been made parties to this proceeding.

9. The nonapplication of the mind is visible from the fact that the process has been issued against all the accused under all those sections which have been mentioned in prayer of the complaint. These Sections are Section 181, 193, 206, 207, 218, 406, 420, 421, 422, 423, 424, 465, 467 and 471 read with Section 34 of the Indian Penal Code. For issuing a process under these offences, it is necessary for a Magistrate to consider the allegations explaining the role played by each of the accused persons in the matter. It is also necessary for the complainant to make specific allegations against all the accused persons so that various criminal acts allegedly committed by them, come out in the open enabling the Magistrate to form an opinion as to whether these criminal acts constitute or do not constitute various ingredients of each and every offence in respect of which taking of cognizance by the Magistrate is solicited by the complainant. To illustrate the point, allegation of commission of offence of forgery made in the complaint can be considered. Forgery is nothing but preparation of a false document as defined under Section 464 of the Indian Penal Code. Considering the ingredients of Section 464, one would expect that the complainant alleges that a particular document purportedly bears complainant's signature although it has not been signed by him. Merely stating about the heading of the offence like offence of forgery, no prima facie case could be said to be made out and what is required for this purpose is to make basic allegations consistent with the particular ingredients of an offence. But, such specific allegation has not been made in the present case. This is also true about all those offences mentioned in the prayer clause. The Magistrate, it appears, has simply considered the prayer clause and using some rhetorics like he perused the complaint and the documents etc., he said in a stereotypical manner,......

"The primafacie case has been made against the accused Nos.1 to 6. Hence, issue process under Section 181, 193, 206, 207, 218, 406, 420, 421, 422, 423, 424, 465, 467 and 471 read with 34 of the Indian Penal Code, vide section 204 of Cr.P.C. on P.F. against accused Nos.1 to 6."

10. The exercise, it would be more appropriate to say the failure to undertake an exercise in the manner expected by law by the Magistrate, has made his order as contrary to settled principles of law discussed earlier, and, therefore, the learned Sessions Judge, rightly noticing the fundamental lacuna in the learned Magistrate's order, has quashed and set aside the order and sent back the case to the learned Magistrate for its fresh consideration on its own merit. I do not see any patent illegality in the impugned order.

11. The application is dismissed.

Application dismissed.