KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN Asit Kumar Pandey S/o Anil Kumar Pandey v. Pankaj Kumar Garg S/o
Case Details
1 2025:CGHC:1815 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1813 of 2017 KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN Asit Kumar Pandey S/o Anil Kumar Pandey, Aged About 56 Years Chief General Manager, Bishrampur Area, S. E. C. L. R/o Bishrampur, Tahsil And District Surajpur Chhattisgarh At Present Working As Chief General Manager Jamuna Kotma Area, S. E. C. L. Tahsil Kotma, District Anuppur M. P. ... Petitioner(s) versus Pankaj Kumar Garg S/o Shri Ramphal Garg, Aged About 40 Years Occupation Service S. E. C. L. Bishrampur, R/o Bishrampur Tahsil And District Surajpur Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Sudhir Kumar Bajpai, Advocate. For Respondent(s) : Mr. Parag Kotecha, Advocate.
Legal Reasoning
Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 10.01.2025 1. Heard Mr. Sudhir Kumar Bajpai, learned counsel for the petitioner. Also heard Mr. Parag Kotecha, learned counsel appearing for the respondent. 2. The petitioner has filed this petition with the following prayer: “ It is therefore, prayed that this Hon’ble Court may 2 kindly be pleased to call for the entire record of the case and quash order dated 09.02.2017 and quashed the criminal complaint case No. 1333/115/2017 pending before the Chief Judicial Magistrate Surajpur, bearing parties Pankaj Kumar Garg Vs. A.K. Pandey, in the interest of justice” 3. Brief facts necessary for disposal of the case that the Coal India Limited is a Government of India undertaking company and having as many as 8 subsidiaries companies. The South Eastern Coal Field Limited (in short S.E.C.L.) is a subsidiary company of the Coal India Limited. Due to administrative reasons the S.E.C.L. has divided in various areas for extracting coal. The Bishrampur area is one of the area of S.E.C.L. and similarly Jamuna Kotma area is one another area of S.E.C.L. Earlier the petitioner was posted as General Manager of Bishrampur area of S.E.C.L. between the period of 16.10.2015 to 17.11.2016 thereafter at present he is working as General Manager of Jamuna Kotma Area of S.E.C.L. At the time of alleged incident, the respondent was working under the petitioner as Electrical Foreman in Bishrampur O.C.M. of S.E.C.L. he also holding a post of Secretary of Area Labour Union namely Sanyukta Koyla Majdoor Sangh. He has habitually not performed his duty sincerely and willfully disobedience, the order of superior officer in connection with discharge of his official duty. In the month of March 2016, against the respondent some complaints were by the office of Bishrampur area relating to giving false information regarding date of birth in 3 connection with his employment. By the aforesaid act of omission and commission on the part of respondent, he had contravene the service rules which constitute gross misconduct under the Clause 26.3 and 26.9 of the Certified Standing Order. It is pertinent to mention here that the terms and service conditions of the non executive cadre employees of S.E.C.L. are governed by the Certified Standing Order, which is made under the Industrial Employment (Standing Orders) Act, 1946. Therefore a charge sheet was issued on 05.04.2016 to the respondent by the office of petitioner and the departmental enquiry was initiated. 4. On the alleged date of incident i.e. 17.07.2016 while petitioner was working in the office at 2:15 p.m. the Electricity Supply was disturbed. After waiting for sometime the petitioner enquired the reason of fault and found that due to some technical fault in Bishrampur O.C.M. electrical sub station, the circulation of electricity was disturbed. Therefore the petitioner being a General Manager of Bishrampur area went to the electric sub-station and enquired the progress of repairing of fault. On that time he saw that the respondent was standing on the electric sub-station and not performing the repairing work of fault. Therefore, petitioner directed to the respondent to perform his duty to the post of electrical foreman or to go to his home, but respondent disobey the direction. For the aforesaid reasons, the respondent having enmity with the petitioner and as a counter blast of facing departmental inquiry and for saving himself he has filed a false 4 and fabricated complaint case on 26.07.2016, before the learned Chief Judicial Magistrate Surajpur and alleging that on the date of incident i.e. 17.07.2016, the complainant was getting work done, which was the electrical fault in 11 KV switch from the workers under the direction of his superior officer. At that time the petitioner came on spot and says that why isn’t he repairing switch with his own hand. Further case of complainant is that thereafter, petitioner being annoyed with the complainant and abusing him with filthy languages and also says that he is not performing his duty and is complaining to C.M.D. against him, petitioner belongs to Bihar, he can get the complainant killed by engaging shooter, nobody will know his whereabout. Then after getting threatened to dismissal from service he made the complainant run out from the workplace. Due to the terror of petitioner all the worker, complainant and family of complainant was in fear condition. Further case of complainant is that the aforesaid act of petitioner caused annoyance to the complainant and also he commit criminal intimidation with the complainant which is constituted the offence punishable under Sections 294, 506-B of I.P.C., therefore, complainant made a complaint before the Police Station Bishrampur and Superintendent of Police Bishrampur but Police has not registered the case against the petitioner, therefore he has filed criminal complaint case before the learned Chief Judicial Magistrate, Surajpur (C.G.). 5. During the inquiry under Section 202 of Cr.P.C. of the above 5 complaint, the complainant has examined himself and witness Navin Kumar Goyal before the learned C.J.M. Thereafter, the learned C.J.M. call the report from the Police Station Bishrampur regarding veracity of complained case. As per direction of learned C.J.M. the police has inquired the matter and recorded the statement of complainant, petitioner, other staff and eyewitnesses, found that no offence has been committed by the petitioner and complainant/respondent has roped the petitioner by misappropriating the actual facts. 6. The learned Chief Judicial Magistrate (C.J.M) without applying its mind as required under the law in a mechanical manner by the impugned order dated 09.02.2017 has taken cognizance of the offence punishable under Sections 294, 506-B of I.P.C. and issued process against the petitioner. In fact no offence is disclosed from the complaint but learned C.J.M. has taken cognizance and setting in motion criminal proceedings and subjecting to a prosecution without examining the material on record is a serious matter affecting the constitutional right of the petitioner, hence this petition. 7. Learned counsel for the petitioner submits that no offence can be alleged to have been committed by the petitioner. The petitioner has been made accused in the said complaint and certain bald allegation have been made against him. It is apparent from the contents of complaint that the facts of the case did not constituted 6 the alleged offence. The ingredients of the alleged offence are missing in the complaint. He further submits that the learned CJM while passing the order of registration of criminal case and while issuing the process has failed to apply its mind and not recorded any prima facie finding. The learned trial Court has simply registered the criminal complaint case because it has been filed by a union leader, even without prima facie satisfying as to whether any offence is being committed or not. The learned C.J.M. committed a serious error in registering the criminal case filed by the respondent without entering in to the merit of the case and has failed to appreciate that though a wide discretion has been given as to grant or refusal of process under Section 204 of Cr.P.C., it must be exercised judicially. The learned C.J.M. ought to have seen that Section 294 of I.P.C. encompasses the offence called in common parlance "eveteasing". To invoke Section 294 of I.P.C. the accused must to do some obscene act in any public place or the accused sings recites or utters and obscene songs bald or words in or near any public place causing annoyance of others, which are missing in the present case. In the present case the incident was occurred in the mines premises which is prohibited area under the Mines Act and Rules and where entry is restricted, therefore the above place are not covered under the definition of public place. The learned C.J.M. ought to have seen that where the accused had only given to the threats to cause death or grievous hurt but did not act in pursuance thereof. It was 7 held by the Hon'ble Apex Court that the offence of Criminal intimidation was not made out and the accused would be entitled for discharge. The learned C.J.M. ought to have seen the respondent has filed a complaint case within a week from the alleged date of incident but he has not made any complaint to the higher authority inspite specific provisions regarding complaints arising out of employment including unfair treatment on the part of management is there, in the clause 35 of the Certified Standing Order which is also provide an appeal to the C.M.D. of S.E.C.L. He further submits that the learned Magistrate ought to have seen that whether at the time of incident the respondent was on duty or not. In fact at the time, the incident was occurred, the respondent was not on duty, there is no occasioned to him for standing on the working place. He also submits that without the permission of Competent Authority, no any person entered into the mines premises. Therefore in absence of documentary evidence at the time of incident, the presence of this witness on the place of incident was doubtful. The learned C.J.M ought to have seen that police has conducted the inquiry independently and recorded the statement of complainant, his witness, petitioner and also recorded the statement of eyewitnesses namely S. Kerketta, Engineer Electrical Sub Station Bishrampur, Bhagwan Singh Rawat Foreman in-charge, Sunit Minj Electrician, Shivshankar Singh foreman Incharge, Naresh Pal Sothi Foreman, they denied the alleged incident and categorically stated that petitioner has not 8 abuses to any person nor threatened the petitioner. After conducting the inquiry, the police has submitted the inquiry report before the learned C.J.M. and giving finding that the complainant has produced a false case, same is not properly appreciated by
Decision
the learned Magistrate, the impugned order is per se illegal and unsustainable because bare perusal of the enquiry report submitted by the police no offence has been committed by the petitioner, though wide a discretion has been given as to grant or refusal of process under section 204 of Cr.P.C. and it must be judicially exercised as a person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case is not made out, the Magistrate ought not to issue process and issuing of process can be refused if he thinks that it is unlikely to result in a conviction. The order is liable to be set-aside, if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contained detailed reasons. A fortiori the order would be bad in law if the reason given turns out to be ex-facie incorrect. However, there has to be proper satisfaction in this behalf which should be duly recorded by judge on the basis of material on record. It has apparent that the order dated 09.02.2017 that no such exercise is done by the judge while issuing summons against the petitioner. Therefore order of taking cognizance on the complaint and issuing summons is illegal and erroneous and is liable to be set-aside. 8. On the other hand, learned counsel appearing for respondent 9 opposes the submissions made by learned counsel appearing for the petitioner and submits that after fully applying mind the learned Chief Judicial Magistrate, Surajpur (C.G.) passed the order dated 09.02.2017 and registered the Complaint Case No. 1338/115/2017, filed by the complainant and there is no any illegality, infirmity or any jurisdictional error while registering the complaint case against the peititioner. Thus, the present petition is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the documents appended with this petition. 10. From perusal of the records and submissions raised by the counsel for the petitioner, it transpires that the petitioner was being a General Manager of Bishrampur, and at that time petitioner directed to the respondent to perform his duty to the post of electrical foreman or to go to his home, but respondent disobey the direction, and therefore, the respondent having enmity with the petitioner and as a counter blast of facing departmental enquiry and for saving himself he has filed a false and fabricated complaint case on 26.07.2016, before the learned trial Court alleging that on the date of incident i.e. 17.07.2016, the complainant was getting work done, which was the electrical fault in 11 KV switch from the workers under the direction of his superior officer, and thereafter, the petitioner used to abuse him 10 with filthy languages, which clearly shows that no any offence is made out against the petitioner alleged in the complaint in question, thus, the present case appears to be a fit case for interference by this Court for exercising the inherent power under Section 482 of the CrPC. The impugned complaint case No. 1338/115/2017, for the offence punishable under Sections 294, 506-B of the IPC, framed by the learned Chief Judicial Magistrate, Surajpur, vide order dated 09.02.2017, and all consequential proceedings arising thereof is hereby quashed. 11. Resultantly, this petition is allowed. 12. Office is directed to send a certified copy of this order to the trial Court concerned for necessary information and follow up action. Sd/- Sd/- (Ramesh Sinha) Chief Justice Kunal