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The necessity for the Magistrate to exercise caution, specify the offense, and scrutinize effectively, the evidence brought on record prior to setting in motion of criminal law, was highlighted in a judgement by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU, before a bench consisting of Hon’ble Justice Mr. Rajnesh Oswal, in the Satidh Khajuria and Anr. vs. Jagjit Jolly and Anr. [CRMC No. 194/2012], on 31.01.22.

The petitioners have filed the present petition for quashing the criminal proceedings in complaint pending before the court of Sub-Registrar, Judicial Magistrate 1st Class Jammu and the order dated 30.06.2012 by virtue of which process has been issued against the petitioners. The facts were that Petitioner No.1 was working as a Chief Khilafwarzi Officer and petitioner No. 2 was working as Building Officer with Jammu Municipal Corporation in the year 2010. The respondent No. 1 filed a complaint under sections 166, 355, 427, 451, 503 read with section 506 of the Ranbir Penal Code, before the Court of learned Sub Registrar, Judicial Magistrate 1st Class Jammu and vide order dated 30.06.2012 the learned Magistrate dropped the proceedings against the then Commissioner and Joint Commissioner (A) of Municipal Corporation, Jammu but issued summons against the petitioners.

The Learned Counsel for the Petitioners, prayed for the quashing of the complainant and also the order dated 30.06.2012 on the following grounds, firstly, that the perusal of the order shows non-application of the mind by the learned Magistrate as the order does not disclose under which provision of laws, the petitioners have committed the offence; secondly, that the petitioners are the officers appointed by the Government and they cannot be removed from their offices without the sanction of the Government. The offences alleged to have been committed by the petitioners were while acting or purporting to act in the discharge of their official duties and as such, the learned Magistrate could not have taken the cognizance of the offences except with the previous sanction of the Government. No sanction has been obtained, as such, the order impugned is not sustainable; and thirdly, that it was the statutory function of the Commissioner to see that the nuisance was abated. Accordingly action was initiated for removing /abating nuisance. Under section 303 of the Municipal Corporation Act, when the Commissioner is of opinion that there is nuisance on any land or building, he can initiate action in terms of the section. In terms of section 391, no suit or prosecution can be entertained in any Court against the Corporation or against the Commissioner or against any Corporation Officer or other Corporation Employee or against any person acting under the control of direction of the Corporation or the Commissioner for anything which is in good faith done. Action against the respondent No.1 was being taken in good faith and admittedly it was an official act and as such in view of section 391 of the Act, the complaint against the petitioners is required to be dismissed.

The Learned Counsel for the Respondents, vehemently argued that the petitioners have committed the offence and as such, they are required to be proceeded and punished for commission of the same. He further submitted that there is nothing on record to demonstrate that the petitioners acted under the provisions of section 303 of Municipal Corporation Act and further that the petitioners are not entitled to any protection under the Code of Criminal Procedure.

Taking into account the facts, arguments, and relying on precedents, the High Court of Jammu & Kashmir and Ladakh at Jammu, noted that a perusal of the order impugned reveals that the learned Magistrate has not mentioned in the order impugned as to the offence for which the process has been issued against the petitioners and on this issue alone the order impugned is required to be set aside. It was observed that the learned Magistrate seems to have acted in a mechanical manner and without recording his satisfaction that the petitioners have committed a particular offence and are required to be proceeded for the same, has issued the process against the petitioners. It was held that the learned Magistrate has failed in his duty to consider the question of issue of process in accordance with law. It was further affirmed that criminal law cannot be set into motion as a matter of course. The 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. Thus, on this ground only, the order dated 30.06.2012 passed by Sub-Registrar, Jammu in complaint to the extent of issuance of process against the petitioners, was set aside and the matter was remanded back to the learned Magistrate for passing fresh orders in accordance with law laid down by Apex court in Pepsi Foods Ltd. vs. Special Judicial Magistrate, (1998) 5 SCC 749.

Click here to read the judgement.

Judgement reviewed by Bhargavi