Appeal against remand order of Hon’ble High Court
The present appeal has been preferred by the Appellants against the Final Judgment and Order dated 09.03.2022 (hereinafter referred to as the ‘Impugned Judgment’) [2022:JHHC:9512] in Criminal Miscellaneous Petition No.235 of 2017 passed by the High Court of Jharkhand at Ranchi (hereinafter referred to as the ‘High Court’) by which the High Court set aside the cognizance Order dated 13.06.2019 passed in connection with SC/ST Case No.08 of 2017 arising out of Argora P.S. Case No.385 of 2016, by the learned Additional Judicial Commissioner-XII, Ranchi (hereinafter referred to as the ‘Additional Judicial Commissioner’) and remitted the matter for passing order afresh.
Facts
Brief factual background
FIR was registered after 26 years against the accused for the offences under sections 498A, 406 and 420 of the IPC and 3(1)(iv) of the ‘SC/ST Act
2. Respondent No.2 (Informant) claims to be the second wife of one Vishnu Sahu (Deceased). Appellant No.1 is the first wife of Late Vishnu Sahu, and Appellants No.2 and 3 are their children. It was alleged that the deceased posing himself as unmarried about 25-30 years ago befriended Respondent No.2 and married her in 1990 at Jagannath Temple under Hindu customs and traditions and lived peacefully for more than 26 years. From their marriage (Vishnu Sahu and Respondent No.2), three children were born, namely Reshma Kumari, Rupa Kumari, and Vishal Kumar. It was pleaded that after 26 years, Respondent No.2 filed a written complaint against Vishnu Sahu and the Appellants which culminated into First Information Report No.385/2016 dated 27.11.2016 (hereinafter referred to as the ‘FIR’) under Sections 498A, 406 and 420 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and Section 3(1)(iv) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘SC/ST Act’).
Allegations
3. The allegations made in the FIR are that Vishnu Sahu posing himself to be unmarried, performed marriage with Respondent No.2 in 1990, and two daughters and a son were born to them from the said wedlock. By taking a loan in her name from a bank and at her expense, a pakka house was constructed upon the land purchased by her father in her name, and she was living in the said house with her family. She also alleged that Vishnu Sahu along with the first wife and the children, born from wedlock of Vishnu Sahu and his first wife (Appellant No.1) started to harass and assault her and ultimately, in the year 2013, she and her children were ousted by them from the said house. It is further alleged that she has been deprived of her land and house, that she is facing hardship, her daughters are of marriageable age and that she was humiliated and abused by Vishnu Sahu, his first wife (Appellant No.1) and their children in the name of Adivasi Kol. Bhurung, etc.
Since no prayer for quash Apex court proceeded to consider only with the remand order
5. The Additional Judicial Commissioner took cognizance against Vishnu Sahu and Appellants on 13.06.2019 in SC/ST Case No.08/2017. Though before the High Court, the Appellants had initially sought quashing of the FIR, in Criminal Miscellaneous Petition No.235/2017 the prayer was later amended by filing an Interlocutory Application challenging the Order taking cognizance dated 13.06.2019. The High Court in the Impugned Judgment, instead of going into the question of whether the FIR itself was fit to be quashed, focused only on the cognizance-taking Order dated 13.06.2019. Even before this Court, the Appellants challenged the Impugned Judgment to the extent the matter was remanded to pass order afresh after disclosure of the prima facie material against the Appellants. No prayer was pressed to quash FIR No.385/2016. In such view, we would proceed only with regard to the challenge whether the High Court by the Impugned Judgment ought to have remanded the matter to the Trial Court for disclosure of the prima facie material against the Appellants.
Impugned High Court order
6. The High Court, by way of the Impugned Judgment, set aside the cognizance Order and remitted the matter to the Additional Judicial Commissioner to pass order afresh as in the cognizance Order, prima facie material against the Appellants had not been disclosed.
Analysis, reasoning and conclusion
13. We have considered the matter in its entirety. Two basic issues arise for consideration.
14. Firstly, whether the Additional Judicial Commissioner while taking cognizance has to record detailed reasons for taking cognizance? Secondly, whether the FIR itself was instituted with mala fide intention and was liable to be quashed?
First point/issue: What is taking cognizance? Explained
15. Coming to the first issue, we have no hesitation to record that the approach of the High Court was totally erroneous. Perusal of the Order taking cognizance dated 13.06.2019 discloses that the Additional Judicial Commissioner has stated that the ‘case diary and case record’ have been perused, which disclosed a prima facie case made out under Sections 498(A), 406 and 420 of the IPC and Section 3 (1)(g) of the SC/ST Act against the accused including appellants. Further, we find the approach of the Additional Judicial Commissioner correct inasmuch as while taking cognizance, it firstly applied its mind to the materials before it to form an opinion as to whether any offence has been committed and thereafter went into the aspect of identifying the persons who appeared to have committed the offence. Accordingly, the process moves to the next stage; of issuance of summons or warrant, as the case may be, against such persons.
16. In the present case, we find that the Additional Judicial Commissioner has taken cognizance while recording a finding that – from a perusal of the case diary and case record, a prima facie case was made out against the accused, including the Appellants. In Bhushan Kumar v State (NCT of Delhi), (2012) 5 SCC 424, this Court held that an order of the Magistrate taking cognizance cannot be faulted only because it was not a reasoned order; relevant paragraphs being as under:
“Paras. 14 to 19”
17. The view in Bhushan Kumar (supra) was reiterated in Mehmood Ul Rehman v Khazir Mohammad Tunda, (2015) 12 SCC 420 and State of Gujarat v Afroz Mohammed Hasanfatta, (2019) 20 SCC 539. This Court in Rakhi Mishra v State of Bihar, (2017) 16 SCC 772 restated the settled proposition of law enunciated in Sonu Gupta v Deepak Gupta, (2015) 3 SCC 424, as under:
‘4. We have heard the learned counsel appearing for the parties. We are of the considered opinion that the High Court erred in allowing the application filed by Respondents 2, 4, 5, 6, 7, 8, 9 and 10 and quashing the criminal proceedings against them. A perusal of the FIR would clearly show that the appellant alleged cruelty against Respondents 2, 4, 5, 6, 7, 8, 9 and 10. This Court in Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424: (2015) 2 SCC (Cri) 265] held as follows: (SCC p. 429, para 8)
“8. … At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence … to find out whether a prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not.”
5. The order passed by the trial court taking cognizance against R-2 and R-4 to R-9 is in conformity with the law laid down in the above judgment. It is settled law that the power under Section 482 CrPC is exercised by the High Court only in exceptional circumstances only when a prima facie case is not made out against the accused. The test applied by this Court for interference at the initial stage of a prosecution is whether the uncontroverted allegations prima facie establish a case.’ (emphasis supplied)
Second point/issue: Criminal proceeding filed for civil dispute
18. Coming to the second point which the Appellants canvassed before this Court viz. the background of lodging of the FIR to impress that the same is mala fide, an afterthought and at best, a civil dispute being tried to be settled through criminal proceedings by way of arm twisting. On this point, need for a detailed discussion is obviated in view of our answer on the first point supra and the paragraphs infra.
Trial court not recorded the prima facie material against the appellants is not correct since the investigation unearthed sufficient materials
19. Perusal of the entire gamut of the pleadings of the Appellants does not disclose any categorical statement to the effect that during investigation by the police, no evidence has emerged to warrant taking of cognizance, much less against the Appellants. The only averment which has been made is that the Trial Court had not recorded the prima facie material against the Appellants because it does not exist. This is too simplistic an argument and does not shift the burden from the Appellants of taking a categorical stand that no material whatsoever for taking cognizance is available in the police papers/case diary against the Appellants. Be it noted, the State has argued that sufficient material warranting cognizance has been unearthed during the course of investigation.
What is application of mind for taking cognizance is explained?
20. Here, the Court would pause to delve on what is the scope of the exercise of application of mind on the police papers/case diary for deciding as to whether to take cognizance or not – it has only to be seen whether there is material forthcoming to indicate commission of the offence(s) alleged. The concerned Court is not empowered to go into the veracity of the material at that time. That is why, the law provides for a trial where it is open to both the parties i.e., the prosecution as well as the defence to lead evidence(s) either to prove the materials which have come against the accused or to disprove such findings. This Court vide Order dated 13.09.2024 directed the Appellants to file a translated copy of the chargesheet, as the State filed the chargesheet in Hindi along with an application seeking exemption from filing official translation (I.A. No.198073/2024). As this Court [Coram: Sudhanshu Dhulia and Ahsanuddin Amanullah, JJ.] is well-conversant with Hindi, the language in which the chargesheet is and which has been brought on record, we have examined the same. However, the Appellants failed to comply with the specific direction issued on 13.09.2024. Be that as it may, we find that chargesheet mentions that on the basis of investigation, site inspection and statements of the complainant, the police has found the allegations true against all the accused including appellants.
Conclusion
No interference required in the order taking cognizance
21. For reasons aforesaid and on an overall circumspection of the facts and circumstances of the case and submissions of learned counsel for the parties, we find that the Order taking cognizance dated 13.06.2019, being in accordance with law, was not required to be interfered with by the High Court.
Hon’ble High Court’s order set aside
22. Though no cross-appeal against the Impugned Judgment has been filed by Respondent No.2, yet to render complete justice as also set right the error committed by the High Court, on the legal issue of requirement of recording detailed grounds/reasons for taking cognizance, the Impugned Judgment is set aside in toto.
The judgments cited in the case
1. Bhushan Kumar v State (NCT of Delhi), (2012) 5 SCC 424
2. Kanti Bhadra Shah v State of W.B, (2000) 1 SCC 722
3. Nagawwa v Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736
4. Chief Controller of Imports & Exports v Roshanlal Agarwal, (2003) 4 SCC 139
5. U.P. Pollution Control Board v Mohan Meakins Ltd., (2000) 3 SCC 745
6. U.P. Pollution Control Board v Bhupendra Kumar Modi, (2009) 2 SCC 147
7. Mehmood Ul Rehman v Khazir Mohammad Tunda, (2015) 12 SCC 420
8. State of Gujarat v Afroz Mohammed Hasanfatta, (2019) 20 SCC 539
9. Rakhi Mishra v State of Bihar, (2017) 16 SCC 772
10. Sonu Gupta v Deepak Gupta, (2015) 3 SCC 424 …
Acts and Sections
Acts
– The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act)
– Indian Penal Code, 1860 (IPC)
Sections
IPC Sections
– Section 498A (Cruelty by husband or relatives)
– Section 406 (Criminal breach of trust)
– Section 420 (Cheating)
– Sections 341, 323, 506 (from an earlier related case)
SC/ST Act Sections
– Section 3(1)(iv)
– Section 3(1)(g)
Party
Pramila Devi & Ors. vs. The State of Jharkhand & Anr – Criminal Appeal No. 2551 of 2024 2025 INSC 560 – April 23, 2025 – Hon’ble Justice Ahsanuddin Amanullah Hon’ble Justice Sudhanshu Dhulia.
