SHASHI vs PUNJAB NATIONAL BANK

This criminal revision is directed against the order dated 16.12.2014 passed by the Court of III Additional Sessions Judge, Katni in Criminal Revision No.169/2014; whereby the order dated 10.09.2014 passed by the Court of Judicial Magistrate First Class, Katni in Criminal Case No.4190/2014 registering complaint against respondents Ganeshwar Singh, Madan Singh, Vijay Kumar Mishra and Badasha Bahadur Singh was set aside and the complaint under sections 323, 506 (Part II) of the Indian Penal Code, filed by the petitioner/complainant Ram Bhushan Paroha, was dismissed.

The facts necessary for disposal of this criminal revision may briefly be stated thus: Complainant/petitioner Ram Bhushan Paroha filed a complaint against the respondents/accused persons Ganeshwar Singh, Madan Singh, Vijay Kumar Mishra and Badasha Bahadur Singh under section 190 of the Code of Criminal Procedure for offence punishable under sections 341, 294, 323 & 506 (Part II) of the Indian Penal Code. It was alleged in the complaint that one Mohammad Sadiq had filed a complaint in the Court of Judicial Magistrate First Class, Katni against the respondents, which was registered as Criminal Complaint Case No.3390/2008. At about 12:1:00 p.m. on 14.07.2010, complainant Ram Bhushan Paroha was going to the Court for giving evidence in aforesaid complaint case along with Mohammad Sadiq and Akhtar Ali. When he reached State Bank of India, which is located near the Court, their motorcycle was intercepted by the respondents/accused persons, who are police personnel. The respondents filthily abused him and told him that they had instructed him not to depose against them in the complaint case but he did not pay any head to them. Thereafter, the respondents started beating the complainant with slaps and fisticuffs. They told him not to depose in the matter and threatened that otherwise they would kill him. Thereafter, the complainant lodged a report of the incident on the same date i.e. 14.07.2010 in the office of Superintendent of Police, Katni. However, since the respondents are police personnel, no criminal case was registered against them.

Subsequently, the petitioner filed a writ petition in the High Court in this regard, which was registered as W. P. No.14610/2011. By order dated 02.09.2011, the petitioner was directed by the Court to file a private complaint in the matter, if so advised. Consequently, this complaint under sections 341, 294, 323 & 506 (Part II) of the Indian Penal Code, was filed. Learned JMFC Katni by her order dated 10.09.2014, registered the complaint against all the four respondents/accused persons under sections 323 & 506 (Part II) of the Indian Penal Code. The order dated 10.09.2014 was challenged by the respondents before the III Additional Sessions Judge, Katni. By order dated 16.12.2014, learned Additional Sessions Judge observed that learned Magistrate had directed the police to investigate the matter under section 156(3) of the Code of Criminal Procedure; however, P.S. Kotwali Katni filed a closure report no.1/2013 on 17.12.2013, as the allegations made against the respondents/ accused persons were found to be untrue. Thereafter, the trial Court recorded the statements of the complainant Ram Bhushan Paroha and his witness Akhtar Ali under sections 200 & 202 of the Code of Criminal Procedure and registered the complaint.

Learned Additional Sessions Judge set aside the order registering the complaint mainly on the ground that as per the statement made in the complaint the incident occurred in front of State Bank of India, which is adjacent to the District Court complex. Eeven then, the complainant, instead of going to the Court and complaining to the Magistrate, preferred to go to the police station, which was quite a distance away. There is no explanation as to why the complainant did not go to the Court. It was further observed that on 14.07.2010, i.e., on the date of the incident, learned counsel for the complainant had appeared before the Magistrate in the criminal complaint case no.3390/2010; wherein, Mohammad Sadiq was a complainant. The counsel prayed for an opportunity to lead evidence. Learned counsel for the complainant continued to pray for opportunities to adduce evidence till 06.06.2012 but on none of the dates did he inform the Court that the complainant and his witnesses were precluded from giving evidence by the respondents. It was further held that the learned Magistrate failed to take into account the fact that P.S. Kotwali Katni had filed a closure report in the matter because no independent confirmation of the incident was forth coming. In aforesaid circumstances, it was held by learned Additional Sessions Judge that cognizance of the offence under sections 323 and 506 (Part II) against the respondents by the Magistrate was against the law. Consequently, the order taking cognizance was set aside.

Learned counsel for the petitioner has assailed the impugned order mainly on the ground that learned Additional Sessions Judge had interfered with the discretion vested in the Magistrate by law on unsustainable grounds.

On due consideration of record and contention of learned counsel for the petitioner, the Court is of the view that this criminal revision must succeed for the reasons hereinafter stated.

In the case of Smt. Nagawwa vs Veeranna v.

Shivalingappa Konjalgi, AIR 1976 SUPREME COURT 1947, it has been held that :

It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

As may be seen, the Supreme Court has held that while issuing processes against the accused persons, the Magistrate may take into consideration the inherent improbabilities appearing on the face of the complaint; however, the Magistrate has been given an undoubted discretion in the matter. Once, the Magistrate has exercised its discretion, it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate. It has further been held that the order of Magistrate issuing the processes can be interfered with only under four circumstances enumerated hereinabove.

In the case at hand, as per the averments made in the complaint, the complainant was going to depose against the respondents in a complaint case filed by his companion Sadiq against respondents. The respondents/accused persons are policemen. On his way to the Court, the complainant was intercepted by the respondents, was beaten up by slaps and fisticuffs and was threatened not to give evidence. Therefore, it cannot be said that no case against the accused disclosed or essential ingredients of the offence are missing either from the complaint or from the statements of witnesses under sections 200/202 of the Indian Penal Code.

In the facts and circumstances of the case, the allegations cannot be said to be patently absurd or inherent improbable because it would not be unusual for the policemen to threaten a person from deposing against them. The order issuing processes was also not based on evidence which is wholly irrelevant and inadmissible. At the time of the offence, the policemen were not acting in discharge or purported discharge of their official duties. As such, no sanction was necessary. Consequently, none of the four conditions enumerated in the judgment of Nagawwa (supra) by the Supreme Court was present; therefore, learned Additional Sessions Judge grievously erred in interfering with the discretion exercised by the police. Consequently, the impugned order is liable to be set aside.

In the result, this criminal revision succeeds. The impugned order is set aside and the order dated 10.09.2014 passed by the Judicial Magistrate First Class, Katni issuing processes against accused persons Ganeshwar Singh, Madan Singh, Vijay Kumar Mishra and Badasha Bahadur Singh under sections 323, 506 (Part II) of the Indian Penal Code, is restored.