Sunday, 3 May 2020

Supreme Court: Magistrate should consider the following factors before the order of issue process against accused

It cannot be disputed that

while holding the inquiry under Section 202 Cr.P.C. the Magistrate
is required to take a broad view and a prima facie case. However,
even while conducting/holding an inquiry under Section 202
Cr.P.C., the Magistrate is required to consider whether even a prima
facie case is made out or not and whether the criminal proceedings
initiated are an abuse of process of law or the Court or not and/or
whether the dispute is purely of a civil nature or not and/or
whether the civil dispute is tried to be given a colour of criminal
dispute or not.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 168 OF 2020

Govind Prasad Kejriwal Vs State of Bihar 

M. R. Shah, J.
Dated:January 31, 2020.

Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 21.04.2017 passed by the High Court of
Judicature at Patna in Criminal Misc.No.30284 of 2011 by which
the High Court has dismissed the said quashing petition preferred
by the original accused and has refused to quash the criminal
proceedings in Complaint Case No. 464 of 2001 for the offences

under Sections 323, 341 and 379 IPC, original Accused has
preferred the present appeal.
2. That the private respondent herein Gopal Prasad son of Shri
Shyam S. Prasad, brother of one Ramesh Kumar – a partner of a
firm called Kejriwal Films filed the criminal complaint being
Complaint Case No.464 of 2001 in the Court of Additional Chief
Judicial Magistrate, Barh against the appellant herein – one of the
partner of Kejriwal Films, for the offences under Sections 379, 323,
504, 506, 406, 452, 147, 148/34 IPC. The complaint reads as
under:
“1. That the complainant is the brother of Ramesh
Kumar, who is a partner of a firm called Kerjiwal
Firms. The accused Balabhadra Prasad Kejriwal is
also a partner in the said firm. Both the accused
persons are father and son by relation.
2. That the aforementioned Kejriwal Films has
taken the Savera Chitra Mandir on lease and carry
on their film business there, whose licence was
taken in the name of Govind Prasad Kejriwal.
3. That in order to cause loss to the complainant’s
brother and his partner Satyanarayan, both the
accused persons had hatched a conspiracy and
thereby had surrendered the cinema filming licence
before the District Magistrate. As such, the cinema
filming has been closed since 5.2.2000 and the
building has been locked. The complainant and
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his brother were looking after the building from
outside. The complainant’s brother is staying
outside for the last some days.
4. That during the time of the occurrence, the
complainant was going towards the market. When
the complainant reached near the Savera Chitra
Mandir, saw the gate open. Seeing the gates open,
the complainant went inside the Savera Chitra
Mandir and saw that the accused persons Govind
Prasad Kejriwal and Balbhadra Prasad Kejriwal
and 45
other unknown people have broke the lock
of the cinema hall and its office and had kept their
Maruti Car No. HR 51D 8974 inside. The accused
Govind Prasad Kejriwal was putting the documents
of the cinema hall in a baggage. The accused
Balbhadra Prasad Kejriwal was removing the
electric fan and other machines by some other
people. The accused Balabhadra Prasad Kejriwal
himself was holding an electric starter in his hand.
5. That when the complainant objected, the
accused persons Govind Prasad Kejriwal and
Balabhadra Prasad Kejriwal gave a kick to the
complainant and threatened him to kill. The other
unknown accused persons pointed their pistol on
the complainant and rove him away from the
cinema hall.
6. That the accused persons Govind Prasad
Kejriwal and Balabhadra Prasad Kejriwal kept the
bag containing the documents in their car whose
number is HR 51D 8974. The other accused
persons removed the fan etc. and kept those in the
car.
7. That the accused persons Govind Prasad
Kejriwal and Balabhadra Prasad Kejriwal and two
unknown accused persons went towards the
market in their car. They asked their other people
4
to put their new lock in the cinema hall and threw
the old locks. Then the other accused persons
came out of the hall and fled in an auto rickshaw
towards the market.
8. That those accused persons, with illintention,
and cause loss to the complainant’s
brother and partner Ramesh Kumar and with the
intention to misappropriate the properties of
partnership firm had entered inside the cinema
hall by breaking its locks and taken away all the
valuable instruments. They had broken the old
lock of the cinema hall and put new locks in it and
caused damage inside the hall driving out the
complainant from the premises.
9. That the complainant’s brother had suffered a
loss of Rs.50,000/due
this theft. There is
possibility of causing irreparable loss on account of
theft of important documents. The description of
these documents can be known only when the
complainant’s brother arrives.
10. That after the occurrence, the complainant
had gone to the local police station to lodge a
report thereof. But the police did not lodge the
report. Then the complainant went to the SubDivisional
Police Officer, but he did not accept the
report of the complainant. There is illegal collusion
between the police and the accused persons.
Hence, it is being prayed to summon the
accused persons and punish them adequately.”
3. That the said complaint was filed on 19.12.2001. From the
record it appears that prior thereto, a written report was lodged by
the appellant herein Govind
Prasad Kejriwal, against Ramesh
5
Kumar and others for the offence under Section 379 IPC. After the
investigation, the I.O. filed the chargesheet
against all the four
accused persons including the complainant herein and even
Ramesh Kumar for the offence under Section 379 IPC. That the
Learned Trial Court has taken cognizance against all the accused
persons including Original private respondent herein – original
complainant under Section 379 IPC. That the said trial is pending.
That the complaint filed by the private respondent – original
complainant herein Gopal
Prasad being Complaint No.464 of 2001
came to be dismissed by the Learned Judicial Magistrate vide Order
dated 14.02.2003. That the Original complainant filed the Revision
Application before the Learned Additional Sessions Judge, Barh.
Vide Order dated 01.12.2004, the Learned Sessions Judge, Barh
allowed the said revision application and set aside the order passed
by the Learned Magistrate dated 14.02.2003 and remanded the
case back to the Learned Magistrate for further inquiry and to pass
fresh order in accordance with law. That pursuant to the remand
order, the complainant deposed one witness in support of his case.
Thereafter the Learned Magistrate vide order dated 25.07.2005 had
6
taken cognizance against the appellant herein under Sections 323,
341 and 379 IPC, against the order passed by the Learned
Magistrate taking cognizance under Sections 323, 341, 379 IPC,
the appellant herein preferred quashing petition before the High
Court being Criminal Miscellaneous Application No.34168 of 2005.
That vide order dated 16.05.2006, the High Court declined to
interfere, however observed that the appellant is at liberty to move
the Learned Lower Court. That thereafter brother of the original
complainant – Ramesh Kumar filed a title suit against the appellant
and the partnership firm for dissolution of the partnership and
rendition of accounts. That the said suit came to be dismissed,
against which the First Appeal was preferred by the said Ramesh
Kumar which came to be dismissed as withdrawn vide order dated
17.01.2011. That Thereafter the appellant filed an application for
discharge. Learned Magistrate vide order dated 04.08.2011 rejected
the prayer of the appellant for discharge. That thereafter the
appellant filed an application before the High Court for quashing of
order dated 04.08.2011 passed by the Learned Judicial Magistrate
rejecting the discharge application. Vide impugned Judgment and
7
order the High Court has dismissed the said application and has
refused to discharge the appellant and has refused to quash the
criminal proceedings. Hence, the original accused has preferred the
present appeal.
4. Mr. Pankaj Bhagat, Learned Advocate appearing on behalf of
the appellant has vehemently submitted that in the facts and
circumstances of the case the High Court has materially erred in
dismissing the application and confirming the order passed by the
Learned Trial Court dismissing the discharge application.
4.1 Learned Advocate appearing on behalf of the appellant has
vehemently submitted that the High Court has materially erred in
not considering the facts and circumstances of the case and even
considering the averments and the allegations in the complaint as
they are, they do not constitute any offence against the appellant
that too for the offences under Sections 323, 341, 379 IPC.
4.2 It is further submitted by Learned Advocate Mr. Pankaj Bhagat
that the High Court has not appreciated the fact that the

complainant has tried to convert a civil dispute into criminal, which
is nothing but an abuse of process of law and the Court.
4.3 It is submitted that therefore the High Court has materially
erred in not exercising the jurisdiction vested in it.
4.4 Making the above submissions it is prayed to allow the present
appeal and consequently discharge the appellant by quashing and
setting aside the order passed by the Learned Magistrate as well as
the High Court.
5. The present appeal is vehemently opposed by Mr. Pavan
Kumar, learned Advocate appearing for the original complainant. It
is vehemently submitted by Learned Advocate for Respondent No.2
– original complainant that in the facts and circumstances of the
case and more particularly when after holding the inquiry under
Section 202 Cr.P.C. when the Trial Court has taken cognizance
against the appellant for the offences under Sections 323, 341, 379
IPC, the Learned Trial Court thereafter has rightly refused to
discharge the appellant – original accused and the High Court has
9
committed no error in confirming the order passed by the Learned
Trial Court taking cognizance and not discharging the accused.
5.1 It is vehemently submitted by the Learned Advocate appearing
on behalf of the original complainant that at the time of inquiry
under Section 202 Cr.P.C. and at the time of taking cognizance, the
Trial Court is required to hold a limited inquiry to satisfy itself
whether there is any prima facie case. In support of his above
submission, learned counsel for the complainant has heavily relied
upon the decision of this Court in the case of National Bank of
Oman vs. Barakara Abdul Aziz, (2013) 2 SCC 488.
5.2. It is further submitted by the Learned Advocate appearing on
behalf of the original complainant that in any case, the allegations
are for the offence under Section 323 IPC also and the case is made
out against the accused for the offence under Section 323 IPC also.
5.3 It is further submitted that in fact earlier the Learned Sessions
Court set aside the order passed by the Learned Magistrate
dismissing the complaint and remanded the matter to the Learned
10
Magistrate. It is submitted thereafter on remand and after holding
necessary inquiry the Learned Trial Court has taken the cognizance
against the accused. It is submitted therefore that no interference
of this Court is called for in exercise of powers under Article 136 of
the Constitution of India more particularly when both, the Learned
Trial Court and the High Court has refused to discharge the
accused. It is submitted that whatever the submissions are made
on behalf of the accused are his defenses, which are required to be
considered at the time of the trial.
Making the above submissions it is prayed to dismiss the
present appeal.
6. Heard the Learned Advocates appearing on behalf of the
respective parties at length.
6.1 We have perused and considered the allegations made in the
complaint as well as the order passed by the learned Trial Court
taking cognizance against the accused. At the outset, it is required
to be noted that summons have been issued against the accused for
the offences under Sections 323, 341 and 379 of the IPC. Having
11
heard the learned counsel appearing for the respective parties and
even considering/taking the allegations in the complaint as they
are, we are of the opinion that initiation of criminal proceedings
against the accused is nothing but an abuse of process of law and
the Court. A purely civil dispute is tried to be given a colour of
criminal dispute.
6.2 It is required to be noted that the original complainant, as
such, has nothing to do with the partnership firm called Kejriwal
Films. The original complainant claims to be the brother of one
Ramesh Kumar who is a partner of the said partnership firm. The
main allegations in the complaint are with respect to the
partnership firm. Partner of the partnership firm has not made any
complaint. The allegations in the complaint are with respect to
surrender of cinema license before the District Magistrate.
Admittedly, one of the accused – Accused No.2 is a partner in the
aforementioned partnership firm. Appellant – Accused No.1 is the
son of the said partner – Balbadhadra Prasad Kejriwal. The
appellant is issued summons for the offences under Sections 379
and 341 of the IPC along with for the offence under Section 323 of
12
the IPC. None of the ingredients for making out the case under
Sections 341 and 379 are satisfied. At this stage, it is required to
be noted that prior to the impugned complaint/criminal
proceedings, the appellant/petitioner lodged an FIR on 06.12.2001
alleging that one HMT Generator set was stolen from the premises
of the Cinema. In the said case, a chargesheet
has been filed
against the private respondent herein Gopal Prasad and others for
having committed the theft. It is also required to be noted that
subsequently even one title suit was filed by the brother of the
complainant – Ramesh Kumar against the partnership firm and its
partners which came to be dismissed, against which an appeal was
preferred which came to be withdrawn by the said Ramesh Kumar.
Therefore, the impugned proceedings are nothing but an abuse of
process of law and the Court. A purely civil dispute is given a
colour of criminal proceedings. As observed above, none of the
ingredients of Sections 341 and 379 of the IPC, are satisfied.
6.3 Even none of the ingredients of Section 323 of the IPC, are
satisfied. Therefore, even considering the allegations in the
complaint as they are, to continue the criminal proceedings against
13
the accused even for the offence under Section 323 shall be an
abuse of process of the Court and the law. Therefore, we are of the
opinion that this is a fit case to exercise the powers under Section
482 Cr.P.C., and to quash the impugned criminal proceedings.
6.4 Insofar as the reliance placed upon the decision of Learned
Additional Sessions Judge, Barh, in Criminal Revision Application
No.31/235 of 2003 relied upon by the learned counsel for the
complainant is concerned, it is required to be noted that in the said
order there are no finding on merits by the Learned Revisional
Court. Revisional Court had only remanded the matter back to the
Learned Judicial Magistrate for further inquiry and to pass a fresh
order in accordance with law.
6.5 Now so far as the reliance placed on the decision of this Court
in the case of National Bank of Oman vs. Barakara Abdul Aziz
(Supra) relied upon by the Learned Advocate appearing on behalf of
the complainant is concerned, we are of the opinion that in the
facts and circumstances of the case, the said decision shall not be
of any assistance to the complainant. It cannot be disputed that

while holding the inquiry under Section 202 Cr.P.C. the Magistrate
is required to take a broad view and a prima facie case. However,
even while conducting/holding an inquiry under Section 202
Cr.P.C., the Magistrate is required to consider whether even a prima
facie case is made out or not and whether the criminal proceedings
initiated are an abuse of process of law or the Court or not and/or
whether the dispute is purely of a civil nature or not and/or
whether the civil dispute is tried to be given a colour of criminal
dispute or not. As observed hereinabove, the dispute between the
parties can be said to be purely of a civil nature. Therefore, this is a
fit case to quash and set aside the impugned criminal proceedings.
7. In view of the reasons stated hereinabove, the present Appeal
succeeds. The order passed by the Learned Magistrate taking
cognizance against the accused and issuing the summons against
the accused for the offences under Sections 341, 323 and 379 of
the IPC and also the impugned Judgment and order passed by the
High Court are hereby quashed and set aside. The impugned
criminal proceedings initiated against the accused arising out of the

Criminal Complaint No.464 of 2001 are hereby quashed and set
aside.
…………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi,
January 31, 2020
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