Abdul Rashid Lone vs Bansi Lal Shan

Vinod Chatterji Koul, J

The petitioner is aggrieved of the process issued by the Court of learned Chief Judicial Magistrate, Kishtwar, vide order dated 03.02.2024, whereby notice has been issued to the petitioner on a complaint filed by the respondent – Bansi Lal Shan under Section 420 of the Indian Penal Code, corresponding to Section 318 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The grievance of the petitioner is that the dispute raised in the complaint is purely of a civil nature and does not disclose any criminal liability. It is further alleged that the trial Court issued process without due application of mind and without following the statutory mandate.

Learned counsel for the petitioner submits that the complaint has been filed pursuant to observations made by the trial Court in pre-litigation proceedings (Annexure VIII), wherein the trial Court, without any statutory power, directed the respondent to file a criminal complaint.

The complaint on the basis of which, process has been issued reads as under:-

“ The complainant most respectfully submits as under:-

That the complaint is Chairman of Truck Owners Union Kishtwar and the truck operators/owners of District Kishwar are plying their trucks through this union.

That the work of carriage of food grains (PDS Ration) of Food Civil Supplies and Consumer Affairs for District Kishtwar was allotted to the acused by JKRTC for the year 2021-22.

That the accused person approached the complainant and requested to provide the Trucks for carriage of PDS Ration in Kishtwar and it was assured by the accused person hat the carriage charges as per Challan of DCS&CA will be given to complainant as and when as the concerned diriver deposits the Challan.

That the complainant provided the near about 40 vehicles/Trucks to the accused person and accordingly the PDS Ration was transported from Kishtwar to different locations as per the Challan of PCS&CA during the year 2021-22.

That all the challans amount of Rs.6137394/- (Rupees sixty one lac thirty seven thousand three hundred and ninety four only) was deposited by the complainant under proper receipt through Depot manager SRTC Kishtwar, under proper receipt (Photo copy of receipt is annexed herewith).

That the accused has received the entire amount of Rs. 6137394/- from the JKRTC, but has paid just Rs. 200000/- (Twenty Lac only) to complainant, with criminal intention to cheat the complainant to the tune of Rs. 4137394/- on the name illegal commission.

That when the complainant asked the accused about this fraud, the accused person abuses the complainant and threatened to eliminate him.

That the accused is influential and head strong person having no care of law and openly deposed that the accused have good liaison with higher authorities, and no one can do any action against him. The accused also threatened the complainant to kidnap him whenever the complainant crosses limits of Kishtwar.

Tat the complainant have witnesses who are ready to depose truth before the Hon’ble Court. The list of some witnesses is mentioned below. The complainant reserves his right to produce other witnesses at appropriate stage. Affidavit in support of complaint is annexed herewith.

It is therefore, prayed that the accused person may kindly be prosecuted and punished under law to meet the ends of justice.

The substance of the complaint filed by the respondent is that he, being Chairman of Truck Owners Union, Kishtwar, provided about 40 trucks for transportation of PDS ration in District Kishtwar during the year 2021-22 on the assurance of the accused (petitioner) that the carriage charges as per challans of the Department of Food, Civil Supplies and Consumer Affairs would be paid. The complainant alleges that an amount of ₹61,37,394/- was received by the accused from JKRTC, but only ₹20,00,000/- was paid to him, thereby cheating him of ₹41,37,394/-. Allegations of abuse and threats have also been made.

The order dated 03.02.2024 which has been written on the complaint of the respondent itself reads as under:-

“Issue notice through CJM/Jammu for early return. List on 07.02024.Also let a notice served through SHO, Bagha Bahu.”

A separate order passed on the same date states:-

“The instant application has been presented by the Ld. Counsel for the applicant in the open Court. Office report is called. File found in order. Office to issue summon to non-applicant. Let the file be come up for further proceedings on 07.02.2024.

From the perusal of the impugned orders, it is evident that the trial Court issued process without recording any satisfaction or reasons as to whether the allegations in the complaint make out a prima facie case constituting an offence under law. Issuance of process without taking cognizance in accordance with Section 210 BNSS amounts to non-application of mind, rendering the order unsustainable.

On filing of a complaint, the trial Court is required to follow the procedure laid down in Chapter XV of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 210 BNSS empowers a Magistrate to take cognizance of an offence upon receiving a complaint, a police report, or other information. It is a settled proposition, as held in Raghubans Dubey v. State of Bihar, 1967 SCC OnLine SC 3, that

“cognizance is of the offence and not the offender”.

Section 210 reads as under:-

Cognizance of offences by Magistrate.

(1)Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence;

(b) upon a police report (submitted in any mode including electronic mode) of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2)The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”

In view of the foregoing discussion, it is manifest that the order whereby process has been issued by the learned trial Court has been passed without taking cognizance of any offence and, thus, without proper application of mind. It is settled law that before issuing process, the trial Court is required to examine the averments in the complaint to ascertain whether a prima facie offence is made out, and only thereafter can take cognizance of the offence and issue process. The learned trial Court, having failed to adhere to the mandate of Section 210 of the Bharatiya Nagarik Suraksha Sanhita, 2003, has committed a jurisdictional error. Consequently, the order dated 03.02.2024 cannot be sustain in law and is, accordingly, set aside. The matter is remanded back to the trial Court to examine the complaint afresh, in accordance with law, and pass appropriate orders.

The petition is, accordingly, disposed of in the above terms.