Allowed

Suman Anand v. the State of Jharkhand

Jharkhand HC9 Nov 2023Cr.M.P./697/2018

Case brief

AI extract

What is this about?

The High Court quashed the entire criminal proceeding and summoning order against a police officer. The court held the case to be false, filed with ulterior motives, and delayed inordinately, noting that criminal law should not be set into motion as a matter of course when the accused is a public servant exercising official duty.

What did the court decide?

The entire criminal proceeding including the summoning order dated 28.02.2017 passed in Complaint Case No. C/1 - 2932/16 was quashed so far as the petitioner is concerned.

Suman Anand Vs the State of Jharkhand — Quashing and FIR | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. M. P. No. 697 of 2018

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Suman Anand … …. Petitioner Versus 1. The State of Jharkhand 2. Rina … …. Opp. Parties -----

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----For the Petitioner : M/s Navin Kr. Singh & Md. Sajid Yunus, Advocates For the State : Mrs. Vandana Bharti, A.P.P. For the O.P. No. 2 : M/s Rajni Singh & Pradeep Kr. Verma, Advocates

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Oral Order

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05 / Dated : 09.11.2023

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The instant criminal misc. petition has been filed for quashing the entire criminal proceeding including the summoning order dated 28.02.2017 passed in Complaint Case No. C/1 - 2932/16, whereby and where under, prima facie case has been found to be made out under Sections 341, 323, 452, 457, 327 of IPC.

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The case of the complainant in brief is that on 09.04.2016 the petitioner, who at the time of incidence was the Officer In-charge-cum-Inspector of Police in Sonari Police Station, conducted a raid in her house with twenty persons and out of them two were in police dress, and apprehended her husband Suraj Kumar Das. It is alleged that the petitioner broke open the lock of the box and took out Rs. 5000/- in cash from the said box. He also took six bangles of CT Gold and one pair of silver Payal and two mobile sets. It is also alleged that the signature of Suraj Kumar Das was taken on a blank sheet of paper. In the enquiry, the statements of the complainant and four witnesses were recorded on the basis of which summoning order has been issued.

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It is submitted by learned counsel for the petitioner that the instant case is a classical example of a false case being lodged on a police officer for lawful exercise of his official duty which will be apparent from the fact that the alleged occurrence took place on 09.04.2016 whereas the complaint has been filed on 16.11.2016.

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As a matter of fact, the husband of the complainant was arrested with arms on 09.04.2016 in Sonari P.S. Case No. 73 of 2016 which was registered under Sections 25(1-a) b, 26 of Arms Act. The husband of the complainant was also a notorious criminal and was also wanted in Sonari P.S. Case No. 48 of 2016 in which charge sheet has been submitted under Sections 395, 412 and 450 of IPC.

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Furthermore, on the part of the complaint case regarding allegation under Sections 354, 406, 380 of IPC has been disbelieved and cognizance has not been taken under these sections.

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Learned counsel for the State has defended the impugned order and submitted that the complainant and enquiry witnesses have supported the case on the basis of which, prima facie case is made out.

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Learned counsel for opposite party no. 2 submits that she does not intend to contest the instant petition.

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It has not been disputed in the counter affidavit that the husband of the complainant has criminal antecedent and was arrested on the date of incidence by the petitioner in the arms case. Furthermore, the case has been filed after an inordinate delay of more than five months without any explanation for delay. This is nothing but persecution which is an outcome of the Arms Act case which was registered against the husband of the complainant who was arrested in this case.

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It is settled law that at the stage of issuing process, the defence is not to be adverted to but it does not mean that such order is to be passed mechanically without application of judicial mind particularly when the accused is a police officer who is being implicated on a false charge for action taken by him in exercise of his official duty. Section 78 and 79 of Indian Penal Code also grant protection for the acts done by a person justified , or by mistake of fact believing himself justified, by law for doing such acts. Rule of the magistrates while issuing process has been explained in the following judgments:

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2023 SCC OnLine 947 Salib @ Sahlu @ Salim Vs State of UP while hearing quashing applications that Court should look into the FIR closely, because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines.

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Pepsi Foods Ltd. v. Special Judicial Magistrate , (1998) 5 SCC 749

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28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the

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Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

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29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.

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Under the facts and circumstance of the case and for the reasons discussed above, the entire criminal proceeding including the summoning order dated 28.02.2017 passed in Complaint Case No. C/1 - 2932/16 is quashed so far as the petitioner, above named, is concerned.

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Instant Cr. Misc. Petition is allowed.

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(Gautam Kumar Choudhary, J . )

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AKT/Satayendra

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Suman Anand v. the State of Jharkhand

Case brief

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Suman Anand v. the State of Jharkhand

Case brief

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