Qadir Wani vs Ab. Gani Mir

Ali Mohd. Magrey, J.â€"This petition under Section 561-A Cr.P.C. has been filed by the petitioner with the prayer to quash the criminal complaint

for offences punishable under Sections 420/506 RPC, titled Abdul Gani Mir v. Ghulam Qadir Wani, and the order dated 28.05.2014 passed by

the learned Chief Judicial Magistrate, 1st Class, Handwara therein, whereby the trial Magistrate has ordered the accused to enter upon his defence

etc. I have heard learned counsel for the parties and perused the record of the file.

The complainant, respondent herein, filed a complaint before the trial Magistrate stating therein that he is a member of Tumina Panchayat. He

was in the office of the accused, BDO villagam, petitioner herein. The accused asked for a loan of Rs. 50,000.00 from him. He, the complainant,

mortgaged his one Kanal of land to arrange the money and loaned it to the accused. After some time, when the complainant demanded the money

back, the accused was annoyed and he threatened him of dire consequences and of handing him over to police. It is alleged in the complaint that

the accused at the time of taking the loan had an illegal intention to cheat the complaint and through dishonesty induced the complaint to deliver

money to him.

A perusal of the impugned order reveals that on 28.05.2014, the case was posted for hearing the learned counsel whether or not there a prima

facie case was made out against the accused or not. After hearing the learned counsel, the trial Magistrate has come to the conclusion that at this

stage it cannot be said that the charge is groundless. The trial Magistrate has, accordingly, called upon the accused to enter upon his defence and

submit list of witnesses. The impugned order further reveals that on behalf of the accused-petitioner certain objections had been taken to the

procedure adopted in the case till the date of hearing on the framing of charge, but the same have not been gone into by the trial Magistrate,

observing that the court cannot roll back and reverse its own orders. However, such objections or grounds, as seem to have been raised before

the trial Magistrate, have not been taken in this petition.

In the instant petition, the petitioner has taken only two major grounds, which, in fact, were argued at the Bar by Mr. Hilal, learned counsel for

the petitioner.

The first argument raised by the learned counsel was that the contents of the complaint, taken on their face value, do not constitute any offence,

muchless the offences as described by the order of the Magistrate. Therefore, the compliant itself is liable to be quashed. The learned counsel

submitted that the transaction, if any, made, was a simple civil transaction, and could not be dealt with by a criminal court. He submitted that the

respondent-complainant has chosen a wrong forum for recovery of money. According to the learned counsel, the complaint on this ground is liable

to be quashed. In this connection, learned counsel for the petitioner also invited the attention of this Court to the provision of Section 420 RPC and

submitted that the ingredients of the offence were not made out. Learned counsel for the petitioner-accused also vehemently refuted the allegation

that the petitioner accused had extended any threat to the respondent-complainant.

The second argument raised by the learned counsel for the petitioner is that in a warrants case, the powers of the Magistrate are delineated in

Sections 252 to 254 of the Code of Criminal Procedure, and that, in the instant case, the learned trial Magistrate, as is evident from the impugned

order, has not followed the said procedure. Therefore, the whole proceedings are liable to be quashed.

Mr. Moomin Khan, learned counsel for the respondent, on the other submitted that the provision of Section 420 RPC starts with the words

whoever cheats"" and that the definition of the word 'cheating' itself is defined in Section 415 RPC. Learned counsel submitted that going by the

definition of the word ""cheating"" given in Section 415 RPC read with illustration (f) thereunder, the contents of the complaint and the statements

recorded by the trial Magistrate, fulfilled the ingredients of the offence of Section 420 RPC against the accused petitioner and, thus, there was

ground for presuming that the accused had committed the offence in question. He submitted that it cannot, therefore, be said that the complaint was

not maintainable, or that the learned trial Magistrate ought not to have taken its cognizance or that the complaint did not make out any offence.

Learned counsel further submitted that it was not a mere civil transaction, as argued by learned counsel for the petitioner-accused. He submitted

that the word 'mere' used by the learned counsel for the petitioner assumes importance in that, had it been mere civil transaction, then there was no

need for extending a threat by the petitioner that, he being a Block Development Officer, would hand the complainant over to Police. Learned

counsel submitted that the allegation that the petitioner-accused had extending threat to the complainant being a question of fact cannot be gone

into by this Court in a petition filed under Section 561-A Cr.P.C. Learned counsel further submitted that this Court in the present proceedings

would not determine any factual aspect of the offences as needs to be proved by evidence at a regular trial before the learned Magistrate.

As regards the procedure prescribed under Sections 252, 253 and 254, of the Code of Criminal Procedure, learned counsel for the

complainant-respondent submitted that the petitioner-accused raised two defences before the trial Magistrate. One was that the allegations levelled

in the complainant, at best, constituted a civil transaction; and second, that since the transaction was in his official capacity, no prosecution would

lie unless sanction under Section 197 Cr.P.C. was accorded. Learned counsel submitted that such a stand taken before the trial Magistrate on

behalf of the petitioner-accused was misconceived, since the offences were committed not in an official capacity, but in a private capacity.

Having considered the matter, I am of the opinion that this is not a case where the complaint would deserve quashment on any count urged and

argued by learned counsel for the petitioner-accused. Nonetheless, as is reflected from the contents of the impugned order, the learned trial

Magistrate has not proceeded in the matter in accordance with the procedure prescribed in Sections 254 and 255 of the Code of Criminal

Procedure. The learned trial Magistrate has ordered the petitioner-accused to enter upon his defence without charging him for any offence or

complying with the provisions of Section 255 Cr.P.C.

This petition is, accordingly, disposed of and the impugned order dated 28.05.2014 passed by the learned Chief Judicial Magistrate, 1st Class,

Handwara, is set aside with direction to the learned trial Magistrate to proceed in the matter in accordance with the procedure laid down in

Sections 254 and 255 Cr.P.C. So far as the prayer for quashment of the complaint is concerned, the same is disallowed.

This also disposes of the connected miscellaneous petitions. Before parting with the file, it needs a mention that the trial Magistrate in the

impugned order itself has mentioned that the complaint has been pending in that court since 27.03.2007. It is unfortunate that the matter has

remained pending for so long a time during which the accused has been given a latitude to an extent that he has remained absent between

07.05.2008 to 07.10.2009 and the trial court has not taken resort to any permissible coercive efforts to procure his attendance before the Court.

Such a tacit attitude on the part of the court is not acceptable. The learned trial Magistrate is expected to consider this aspect of the matter and

ensure that trial of the case is held with the speed it deserves, given the nature and the age of the case.