Allowed

Sanjay Mishra v. State of Chhattisgarh

Chhattisgarh HC17 Mar 2023WPCR/9/2023

Case brief

AI extract

What is this about?

The High Court quashed an order where a Judicial Magistrate took cognizance against the petitioner and issued a bailable warrant suo motu after previously taking cognizance against other accused, violating settled law that review of such preliminary orders is impermissible without notice.

What did the court decide?

The impugned order dated 10.11.2022 passing bailable warrant against the petitioner was quashed.

Sanjay Mishra Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Writ Petition (Criminal) No. 9 of 2023

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Sanjay Mishra, S/o Late B K Mishra, Aged about 53 years, Working as Deputy General Manager (Admin Head), JSW Ispat Special Product Limited, Naharpali, P.S. Bhupdeopur, Tahsil Kharsia, District Raigarh, Chhattisgarh.

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---Petitioner

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Versus

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State of Chhattisgarh through Police Station Kharsia, District Raigarh, Chhattisgarh.

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Chakro S/o Late Digru, Aged about 70 years, R/o Village Kurrubhata, P.S. Bhupdeopur, Tahsil Kharsia, District Raigarh, Chhattisgarh.

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---Respondents

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For Petitioner :- Mr. Abhishek Sinha, Senior Advocate with Mr. Gary Mukopadhyay, Advocate For Respondent 1 :- Mr. Ashish Tiwari, Govt. Advocate For Respondent 2 :- Mr. F.S. Khare, Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal Order on Board

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17/03/2023

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Sanjay K. Agrawal, J.

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The petitioner herein takes exception to order dated

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10/11/2022 passed by learned Judicial Magistrate First

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Class, Kharsia in Complaint Case No. 125/2022 by which bailable warrant has been issued against him for offence punishable under Sections 420, 467, 468, 471, 465 read with Section 34 of the IPC.

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The aforesaid challenge has been made on the following factual backdrop :-

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i) Respondent No. 2/complainant moved an application under Section 200 of CrPC along with an application under Section 156(3) of CrPC in which learned Magistrate recorded the statements of respondent No. 2/complainant and his son Dev Singh Yadav and vide order dated 12/10/2022, he took cognizance of above-stated offences against Accused No. 1 - Setram Kapileshwar Patel, Accused No. 2 - J.S.W. Ispat Special Product Ltd. and Accused No. 3 - Rahul Gupta and accordingly, issued summons to them.

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ii) On 03/11/2022, service report was received and since summons were issued to Accused No. 1 and 2 and both of them failed to appear, bailable warrant was issued to them for their appearance on 14/11/2022, however, summon issued to Accused No. 3 came back unserved stating that he is not working at Accused No. 2 Company and as such, fresh summons were issued to him on his correct address and matter was fixed for 14/11/2022.

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iii) In the meanwhile, learned Magistrate received a copy of order dated 07/11/2022 (Rajkumar Patel v. State of

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Chhattisgarh) by which application filed by said Rajkumar Patel, Manager of Accused No. 2 Company for anticipatory bail stood rejected.

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iii) Taking cognizance of order dated 7/11/2022 rejecting anticipatory bail application of Rajkumar Patel, learned Magistrate came to the conclusion that petitioner is the Manager of Accused No. 2 Company and after suo moto taking note of the fact that petitioner is the Manager of Accused No. 2 Company, issued bailable warrant against him vide impugned order dated 10/11/2022 which has been sought to be challenged by way of this writ petition on the ground that such an order is unsustainable, without jurisdiction and without authority of law.

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Return has been filed principally by respondent No. 2/complainant stating that the impugned order is strictly in accordance with law. Respondent No. 1/State has also filed the return stating that State is a formal party.

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Mr. Abhishek Sinha, learned senior counsel appearing on behalf of the petitioner, would submit that the impugned order issuing process to the petitioner is bad and illegal and is gross misuse and abuse of process of law, as such, it is liable to be quashed for the following two reasons :-

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i) the complaint, documents and the evidence/statement of respondent No. 2/complainant does not disclose any ingredients of the alleged offences even on the face of the

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record and there is no overt act or evidence against the petitioner to arraign him as an accused.

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ii) The name of the petitioner was not arraigned as an accused in his personal capacity or in the capacity of a representative of the Accused No. 2 Company in the complaint. He has been subsequently arraigned in the court records without there being any order in the order sheet by the court or any material to implicate and array him in any capacity. Such kind of amendment is not a formal amendment and suffers from legal infirmity.

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Per contra, Mr. F.S. Khare, learned counsel appearing for respondent No. 2/complainant, would submit that learned Judicial Magistrate has rightly arraigned the petitioner as an accused after finding material against him and he has rightly proceeded to with issuance of bailable warrant against the petitioner on the basis of material available on record and since the impugned order is well-merited, the instant writ petition is liable to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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Admittedly, in the complaint filed under Section 200 read with Section 156(3) of CrPC by respondent No. 2/complainant, learned Magistrate vide order dated 12/10/2022 took cognizance of the offence punishable under Sections 420, 467, 468, 471, 465 read with Section

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34 of IPC against Accused No. 1 Setram Kapileshwar Patel, Accused No. 2 J.S.W. Ispat Special Product Ltd. and Accused No. 3 Rahul Gupta and issued summons to them which was served to Accused No. 1 and Accused No. 2, however, it could not be served to Accused No. 3 as it was stated that he was no longer working in the Accused No. 2 Company which led to issuance of fresh summons against Accused No. 3 and the date was fixed for 14/11/2022. In the meanwhile, order dated 07/11/2022 (Rajkumar Patel v. State of Chhattisgarh) was received by learned Magistrate by which his anticipatory bail was rejected and thereafter, learned Magistrate suo-moto preponed the date of hearing and took up the matter on 10/11/2022 and passed the following impugned order :-

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“10.11.2022

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U;k;ky; iape vij l= U;k/kk/kh'k] jk;x<+ N0x0 ds vfxze tekur vkosnu dzekad 788@ 2022 lsrjke cuke N0x0 'kku ,oa 789 @2022 jktdqekj iVsy izca/kd ts0,l0MCY;q bLikr izksMDV fyfeVsM] ugjikyh cuke N0x0 'kklu ikfjr vkns'k fnaukd 07-11-2022 dh izfrfyfi lfgr ewy vfHkys[k ifjokn izdj.k dzekad 125@ 2022 izkIrA

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vkns'kkuqlkj vkosnd lsrjke dh vksj ls izLrqr vfxze tekur vkosnu i= varxZr /kkjk 438 n0iz0la0 fopkjksijkar Lohdkj ;ksX; uagha gksus ls ][kkfjt fd;k x;k gSA

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vkns'kkuqlkj vkosnd jktdqekj iVsy dh vksj ls izLrqr vfxze tekur vkosnu i= varxZr /kkjk 438 n0iz0la0 fopkjksijkar Lohdkj ;ksX; ugah gksus ls [kkfjt fd;k x;k gSA

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izdj.k dk voyksdu fd;k x;kA voyksdu ls nf'kZr gS fd ifjokn izdj.k esa vfHk;qDr dzekad 2 ts0,l0MCY;q bLikr izksMDV fyfeVsM] ugjikyh }kjk izca/kd lat; feJk gS ijarq vfxze tekur vkosnu dzeakd 789@2022 esa jktdqekj iVsy izca/kd ts0,l0MCY;q bLikr Lis'ky izksMDV fyfeVsM ugjikyh is'k fd;k x;k gSA ewy ifjokn izdj.k Lis'ky izksMDV fyfeVsM] ugjikyh i{kdkj ugha gSA vr% ifjokknh }kjk fof/kor ryokuk vnk fd;s tkus ij vfHk;qDr daekd 2 ts0,l0MCY;q bLikr Lis'ky izksMDV fyfeVsM ] ugjikyh }kjk izca/kd lat; feJk ds fo#) tekurh okjaV tkjh fd;k tkosA ”

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izdj.k iwoZor &

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A careful perusal of the aforesaid order would show that Learned Judicial Magistrate preponed the date of hearing from 14/11/2022 to 10/11/2022 without notice to the complainant or to Accused No. 1 and 2, who had already been served and directed for issuance of bailable warrant against the petitioner holding that he is the Manager of J.S.W. Special Product Ltd. Company (Accused No. 2), that too, suo-moto without there being any application filed on behalf of respondent No. 2/complainant, which would amount to reviewing/recallling/reconsidering its earlier order dated 12/10/2022 by which that Court had taken cognizance of above-stated offences against Accused No. 1, 2 and 3 only and not against the petitioner herein.

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The question for consideration would be whether learned Judicial Magistrate was empowered to review or recall his earlier order dated 12/10/2022 by which cognizance of offences had been taken against Accused No. 1, 2 and 3 and to pass the impugned order dated 10/11/2022 by which bailable warrant had been issued against them ?

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10. The legal position with regard to the aforesaid question is well-settled and is no longer res-integra. In the matter of Adalat Prasad v. Rooplal Jindal and others 1, their

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1 (2004) 7 SCC 388

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Lordships of the Supreme Court have considered the decision rendered in the matter of K.M. Mathew v. State of Kerala 2 and held that the issuance of process under Section 204 of CrPC is a preliminary step in the stage of trial and such an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the Code for review of an order by the same court and observed in paragraph 14 of the judgment as under :-

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“14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew's case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under sections 200 and 202, and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the Court and making an application for dismissal of the complaint under section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.”

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2 AIR 1992 SC 2206

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11. The principle of law laid down by the Supreme Court in Adalat Prasad (supra) has been followed with approval in Subramanium Sethuraman v. State of Maharashtra and

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another 3.

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12. Applying the principle of law laid down by the Supreme Court in Adalat Prasad (supra) which has been reiterated in Subramanium Sethuraman (supra) to the facts of the present case, it is evident that it was not open to the learned Magistrate to pass order dated 10/11/2022, taking cognizance of offences against the petitioner, that too, without there being any material against him on record, which tantamounts to reviewing or recalling his earlier order dated 12/10/2022 by which cognizance of offences was taken against Accused No. 1 to 3, particularly when neither respondent No. 2/complainant nor Accused No. 1 to 3 were noticed about the preponing the date of hearing from 14/11/2022 to 10/11/2022. The impugned order dated 10/11/2022 would also amount to taking cognizance against the petitioner suo-moto and without considering the material available on record whether the case for taking cognizance is made out or not, that too, on the basis of order rejecting application for anticipatory bail filed by one Rajkumar Patel. The order summoning the accused must show that the Magistrate has applied his mind to the facts of the case and law

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3 (2004) 13 SCC 324

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applicable thereto and he has to carefully scrutinize the evidences brought on record as summoning of an accused in a criminal case is a serious matter. (See: Pepsi Food

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Ltd. v. Special Judicial Magistrate 4 )

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13. The Supreme Court in the matter of Sneh Gupta v. Devi

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Sarup and others 5 has indicated the procedure to be followed if the hearing of a case is advanced or preponed, which states as under :-

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“39. Both the suits were compromised. Indisputably, the date fixed in the matter was July 1998. The impugned compromise petition, however, was filed on 25-4-1998. For the aforementioned purpose, the date was preponed. Indisputably, the appellant was not informed thereabout. She was not given any notice of preponement of the date. The question as to whether the appellant knew thereabout or not is essentially a question of fact to which we would advert to a little later. It is, however, difficult for us to agree with the High Court as also the submissions of Mr. Dwivedi that the compromise was a comprehensive one.

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Whether the preponement of the date was only at the instance of Veena or at the instance of both the parties to the consent is a matter which is of little relevance so far as this Court is concerned inasmuch as the only issue which would arise for our consideration is the consequences of such preponement. If the hearing of a case is preponed, it should be done with notice to all the parties. It is not the case of the first respondent that notice had been given to all the parties or otherwise also they were aware thereof.”

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14. In view of the aforesaid legal position, impugned order

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dated 10/11/2022 passed by the Judicial Magistrate First

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Class, Kharsia taking cognizance of above-stated

4 (1998) 5 SCC 749

5 (2009) 6 SCC 194

offences/issuing bailable warrant against the petitioner and thereby, reviewing/recalling/reconsidering his earlier order dated 12/10/2022 by which he had already taken cognizance of offence against Accused No. 1 to 3 is absolutely without jurisdiction and without authority of law and as such, it is liable to be and is hereby quashed.

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15. Accordingly, this writ petition stands allowed.

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Sd/Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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Harneet

Sanjay Mishra v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sanjay Mishra v. State of Chhattisgarh

Case brief

What is this about?

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