Sikkim High Court: Bhaskar Raj Pradhan, J., while exercising inherent powers under Section 482 CrPC quashed the criminal complaint filed against the petitioners for the offences punishable under Sections 405, 420 and 441 read with Section 120-B IPC. Warrants issued against the petitioners by the Magistrate in the same case were also quashed.
The parties were involved in a landlord-tenant dispute, pursuant to which the said complaint was filed by the landlord. Magistrate took cognizance and issued process against the petitioners. Aggrieved, they filed the instant petition. It was an admitted fact that the petitioners resided beyond the territorial jurisdiction of the Magistrate concerned.
Dismissing Chapter 15 of CrPC which deals with complaints to Magistrates, the High Court relied on Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., 2019 SCC OnLine SC 682, wherein the Supreme Court held that under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction. he shall inquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fir for finding out whether or not there is sufficient ground for proceeding against the accused. The Supreme Court also held that the order of the Magistrate must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It was also held that the application of mind has to be indicated by disclosure of mind on the satisfaction and considering the duties of the magistrates for issuance of summons to accused in a complaint case, there must be sufficient indication of it. The Supreme Court after referring to a catena of its previous judgments held that summons may be issued if the allegations in the complaint, the complainant statement and other materials would show that there are sufficient grounds for proceeding against the accused.
The records of the instant matter, however, did not reveal that the Magistrate had complied with the provisions of Section 202 CrPC and applied her mind to the facts of the case and the law applicable thereto. The order of taking cognizance stated that “cognizance of the matter is taken against accused no. 1, 2, 3 and 4”. Section 190 CrPC deals with cognizance of offence by Magistrate, which provides that the Magistrate “may take cognizance of any offence.” It is settled law that cognizance is taken of the offence and not the offender. The Magistrate did not even mention which of the offences she had taken cognizance of.
It was, thus, held that the Magistrate failed to exercise her discretion to issue summons against the petitioners residing beyond her territorial jurisdiction in the manner required. Even otherwise, considering the allegations, it was found that there was no material before the Court to proceed under criminal jurisdiction. [Mohd. Yusufuddin Ahmed v. Ruth Karthak Lepchani, 2019 SCC OnLine Sikk 198, decided on 07-12-2019]
