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2017 Supreme(Gau) 989
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESHI, TANAGAR BENCH
HITESH KUMAR SARMA, J.
Shri Nabam Epo, S/o Lt. Nabam Echo - Petitioner
Vs.
The State of Arunachal Pradesh – Respondent
Criminal Petition 21 (AP) of 2017
Decided on : 12-12-2017
Advocate Appeared:
For the Petitioner: Mr. Dicky Panging
For the Respondent: Ms. Mama Tang, learned Additional Public Prosecutor, Mr. Rajesh Sonar
The court emphasized the requirement for the Judicial Magistrate to apply independent mind before taking cognizance of an offence, and highlighted the appealable nature of the complaint filed under Section 340 of the Cr.PC.
Headnote:
Section 482 - Quashment of Orders - Code of Criminal Procedure, 1973 - Section 195, Indian Penal Code - 211, 340 - The court quashed the order taking cognizance of an offence u/s. 211 of the Indian Penal Code against the petitioner, as it was found to be not in conformity with the requirement of law. The complaint filed by the Chief Judicial Magistrate under Section 340 of the Cr.PC is appealable under Section 341 of the Cr.PC, and the grounds canvassed before this Court could have been taken in the appeal if there was an appeal.
Fact of the Case:
The petitioner filed a First Information Report (FIR) alleging criminal trespass into his Mithun Farm. The accused respondents filed an application for holding an inquiry against the petitioner for commission of an offence u/s. 211 of the Indian Penal Code. The Chief Judicial Magistrate conducted a preliminary inquiry and found the petitioner to have committed the offence u/s. 211 of the Indian Penal Code. The Judicial Magistrate took cognizance of the offence against the petitioner.
Finding of the Court:
The court found that the order of the Judicial Magistrate taking cognizance of the offence against the petitioner, without applying his mind, was not in conformity with the requirement of law, and therefore, quashed the order.
Issues: The issues revolved around the validity of the orders passed by the Chief Judicial Magistrate and the Judicial Magistrate, and the applicability of Section 195 and 340 of the Code of Criminal Procedure, 1973.
Ratio Decidendi: The court held that the complaint filed by the Chief Judicial Magistrate under Section 340 of the Cr.PC is appealable under Section 341 of the Cr.PC, and the grounds canvassed before the Court could have been taken in the appeal if there was an appeal. The order of the Judicial Magistrate taking cognizance of the offence against the petitioner, without application of mind, was not as per the requirement of law, and therefore, needed to be quashed.
Final Decision: The order taking cognizance of the offence against the petitioner was quashed, and the criminal petition was disposed of accordingly.
Heard Mr. Dicky Panging, learned counsel for the petitioner.
Also heard Ms. Mama Tang, learned Additional Public Prosecutor, Arunachal Pradesh, as well as Mr. Rajesh Sonar, learned counsel for private Respondent Nos. 2 to 4.
2. This is an application, under Section 482 of the Code of Criminal Procedure, 1973, filed by the petitioner, seeking quashment of the order, dated 19.08.2016, passed by the Court of learned Chief Judicial Magistrate, Capital Complex, Yupia, and the order, dated 29.11.2016, passed by the Court of learned Judicial Magistrate, 1st Class, Capital Complex, Yupia, taking cognizance of an offence u/s. 211 of the Indian Penal Code against him without following the due process of law and the subsequent proceedings instituted in terms of the aforesaid orders, 19.08.2016, and 29.11.2016, respectively.
3. The fact, leading to the filing of the present criminal petition, is that the present petitioner had filed a First Information Report(FIR), on 02.12.2013, before the Doimukh Police Station, alleging that on 27.11.2013, at about 8.00 hrs., the Respondent No. 2 and his party committed criminal trespass into his Mithun Farm, located at Aaying Nallah Emchi village, which Firm was established by him in the year 2001. There were 20 Mithuns breeding in the said Farm at the relevant point of time. The Respondent No. 2 and members of his party had destroyed the bamboo fencings of the said Farm, resulting in missing of 4(four) Mithuns. The Respondent No. 2 and his men had also destroyed the jungles which was the food of the Mithuns and also disturbed the environment of the Farm by throwing plastics, lighting fire, etc. It was also alleged in the said First Information Report(FIR) that the Respondent No. 2 and his men, had trespassed into the said Mithun Breeding Farm in the previous year also.
4. On receipt of the First Information Report(FIR), aforesaid, on the above facts, Doimukh Police Station registered a case, being No. DMK/PS Case No. 51/2013 u/ss. 447/427/379/34 of the Indian Penal Code; investigated into it, collected evidence, arrested the accused Respondent Nos. 2, 3 and 4. After completion of the investigation, the police laid the charge-sheet against the accused Respondent Nos. 2, 3 and 4, u/ss. 447/427/379/34 of the Indian Penal Code.
5. While the charge-sheet was pending before the Court of learned Chief Judicial Magistrate, aforesaid, for consideration of the charge, the Respondent Nos. 2 to 4, who are shown as accused in the charge-sheet; filed an application, being No. 46/2016, before the Court of the learned Chief Judicial Magistrate, Yupia, u/s. 340 of the Code of Criminal Procedure, 1973, with a prayer to hold an inquiry against the informant for commission of an offence u/s. 211 of the Indian Penal Code. Accordingly, the learned Chief Judicial Magistrate, Yupia, passed the impugned order, dated 19.08.2016, directing the Judicial Magistrate, 1st Class, Yupia, for taking cognizance of the offence u/s. 211 IPC, against the petitioner/informant of the aforesaid case, and pursuant to the said order, dated 19.08.2016, the Court of the learned Judicial Magistrate, 1st Class, Yupia, vide order, dated 29.11.2016, took cognizance of the offence against the petitioner/informant of the said case, u/s. 211 of the Indian Penal Code.
6. According to the petitioner, the order, dated 19.08.2016, passed by the Court of the learned Chief Judicial Magistrate, Yupia, and the order, dated 29.11.2016, passed by the Court of the learned Judicial Magistrate, 1st Class, Yupia, are in violation of the mandatory provisions of Section 195 of the Code of Criminal Procedure, 1973.
7. It is further averred and submitted by the petitioner that the learned Chief Judicial Magistrate, Yupia, without making a complaint, in writing, as required u/s. 195 of the Code of Criminal Procedure, 1973, conducted the preliminary inquiry directly and directed the Judicial Magistrate, 1st Class, aforesaid, to take cognizance of the offence
