magistrate should take cognizance only if a case is clear

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRMC No. 29/2019 (CRM (M) No. 29/2019
CrlM No. 230/2019 (01/2019) CrlM No. 635/2022
Reserved on: 13-02-2023
 Pronounced on: 07 -04-2023
Sheikh Khalid Jehangir  Petitioner(s)
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Mehreen, Adv.
Vs.
Nayeem Akhter ...Respondent(s)
Through: None
CORAM:
HONBLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

However, before testing the validity of the
order, a reference hereunder to the legal principles laid down by the
Apex Court in case titled as Pepsi Foods Ltd. & Anr. vs. Special
Judicial Magistrate and Ors. reported in (1998) 5 SCC 749 also
become necessary wherein at Para 28 following has been laid
down:-
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
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. 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.
A further reference in regard to above to the Judgment of the
Apex Court Judgment passed in Mehmood ul Rehman vs. Khazir
Mohammad Tunda and Ors. (2015) 12 SCC 420 is also important
wherein at Paras 20, 21 and 22 of the Judgment following has been
provided:-
20. The extensive reference to the case law would clearly show that cognizance
of an offence on complaint is taken for the purpose of issuing process to the accused.
Since it is a process of taking judicial notice of certain facts which constitute an offence,
there has to be application of mind as to whether the allegations in the complaint, when
considered along with the statements recorded or the inquiry conducted thereon,
would constitute violation of law so as to call a person to appear before the criminal
court. It is not a mechanical process or matter of course. As held by this Court in Pepsi
Foods Limited (supra), to set in motion the process of criminal law against a person is a
serious matter.
21. Under Section 190(1)(b) of Cr.P.C., the Magistrate has the advantage of a
police report and under Section 190(1)(c) of Cr.P.C., he has the information or
knowledge of commission of an offence. But under Section 190(1)(a) of Cr.P.C., he has
only a complaint before him. The Code hence specifies that a complaint of facts which
constitute such offence. Therefore, if the complaint, on the face of it, does not disclose
the commission of any offence, the Magistrate shall not take cognizance under Section
190(1)(a) of Cr.P.C. The complaint is simply to be rejected.
22. The steps taken by the Magistrate under Section 190(1)(a) Cr.P. C followed
by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts
and 31 CRMC No.58/2019 the statements and he is satisfied that there is ground for
proceeding further in the matter by asking the person against whom the violation of law
is alleged, to appear before the court. The satisfaction on the ground for proceeding
would mean that the facts alleged in the complaint would constitute an offence, and
when considered along with the statements recorded, would, prima facie, make the
accused answerable before the court. No doubt, no formal order or a speaking order is
required to be passed at that stage. The Code of Criminal Procedure requires speaking
order to be passed under Section 203 CrPC when the complaint is dismissed and that
too the reasons need to be stated only briefly. In other words, the Magistrate is not to
act as a post office in taking cognizance of each and every complaint filed before him
and issue process as a matter of course. There must be sufficient indication in the order
passed by the Magistrate that he is satisfied that the allegations in the complaint
constitute an offence and when considered along with the statements recorded and the
result of inquiry or report of investigation under Section 202 Cr.P.C, if any, the accused is
answerable before the criminal court, there is ground for proceeding against the accused
under Section 204 Cr.P.C, by issuing process for appearance. The application of mind is
best demonstrated by disclosure of mind on the satisfaction. If there is no such
indication in a case where the Magistrate proceeds under Sections 190/204 Cr.P.C, the
High Court under Section 482 Cr.P.C is bound to invoke its inherent power in order to
prevent abuse of the power of the criminal court. To be called to appear before the
criminal court as an accused is serious matter affecting one's dignity, self respect and
image in society. Hence, the process of criminal court shall not be made a weapon of
harassment.
In view of the aforesaid principles and law looking to the order
impugned, it is apparent that the Magistrate has exhibited lack of
application of mind to the material on record and instead seemingly
has approached very lightly and in a mechanical manner in the matter
while passing the impugned order.