The main legal point established in the judgment is the requirement of judicial mind at the stage of taking cognizance and the distinction between public servant specific offences and those applicable to individuals who are not public servants.

JUDGMENT :

Ravindra Maithani, J.

Challenge in this petition is made to the cognizance/summoning order dated 24.01.2014, passed in Criminal Case No. 329 of 2014, State vs. Naveen Singh, under Sections 332, 353, 186, 504 IPC, by the court of Civil Judge (Senior Division)/ Judicial Magistrate, Kashipur, District Udham Singh Nagar (for short, “the case”)

2. Facts necessary to appreciate the controversy briefly stated are as follows:-

The respondent no.2 (the informant) lodged an FIR on 20.11.2013, under Sections 332, 353, 186, 504 IPC at Police Station Jaspur, District Udham Singh Nagar against the petitioners. According to the FIR, the informant at the relevant time was working as a Associate Vice President Regional Manager, Nainital Bank Ltd. (“the Bank”). M/S Naveen Sheets Pvt. Ltd. had taken loan from the Bank. When M/S Naveen Sheets Pvt. Ltd. did not repay the loan, it was declared non performing assets. The Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, “SARFAESI Act”). On 20.11.2013, at 11:30, the informant alongwith other Bank officials proceeded to take the symbolic possession of the immovable properties of the M/S Naveen Sheets Pvt. Ltd. Prior to it, at 10.14 a.m. on the same date, the petitioner no. 1 Naveen Singh had requested that the proceedings for taking possession be postponed. The Bank officials requested the petitioner no.1 Naveen Singh to cooperate with the Bank officials in taking symbolic possession of the immovable property under the SARFAESI Act. When the informant and other Bank officials reached at the spot, according to the FIR, the petitioner no.1 Naveen Singh assaulted the Bank officials and both the petitioners shoved, pushed the Bank official and misbehaved with them and obstructed the informant and other Bank officials in discharge of their duties under the SARFAESI Act. It is this FIR, in which, after investigation, charge sheet under Sections 332, 353, 186, 504 IPC has been submitted against the petitioners. Initially, the charge sheet was submitted in the court of Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar, which court transferred the case to the court of Civil Judge (Senior Division)/Judicial Magistrate, Kashipur, District Udham Singh Nagar. On 24.01.2014, cognizance was taken and summons issued against the petitioners. It is impugned herein.

3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioners would argue that the impugned order dated 24.01.2014 is bad in the eye of law for the following reasons:-

(i) The order does not reflect that the Magistrate concerned had applied his mind. It does not reveal the offences under which the petitioners have been summoned and;

(ii) The informant and other Bank officials are not public servants as defined under Section 21 IPC. Therefore, the offences under Sections 332, 353, 186 IPC are not made out.

5. In support of his contention, learned counsel has placed reliance on the principles of law, as laid down in the cases of State of Maharashtra Vs. Sharadchandra Vinayak Dongre and others, AIR 1995 SC 231, GHCL Employees Stock Option Trust Vs. India Infoline Limited, (2013) 4 SCC 505 and Gopal Dutt Vs. State of Uttarakhand and another, (2016) (1) UD 361.

6. In the case of Sharadchandra Vinayak Dongre (supra), the Hon’ble Supreme Court discussed the powers of the Magistrate under Section 190 (1) (b) of the Code of Criminal Procedure, 1973 (for short, “the Code”) in the matter of taking cognizance upon a police report. In para 7 of the judgment, the Hon’ble Supreme Court observed as hereunder:-

“7. The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed along with the police report, a case for taking cognizance has been made out or not. After applying his mi