Bombay High Court
Pandey Ajay Bhushan, Collector And ... vs Shri Sureshkumar Bhikamchand Jain And ... on 10 February, 1994
Equivalent citations: 1994CRILJ1726
ORDER
1. The present petitioners were accused Nos. 1, 3 and 4 in Criminal Case No. 194/1993 which was initially numbered before the Chief Judicial Magistrate, Jalgaon as Criminal Misc. Application No. 187/1993.
The petitioners are the Collector and District Magistrate, the Additional Superintendent of Police and the Sub-Divisional Magistrate, Jalgaon, respectively. The private complaint in question was filed by respondent No. 1 who happens to be the President of the Jalgaon Municipal Council.
2. The unfortunate conflict between the aforesaid authorities had arisen because of certain move adopted by the complainant for demolition of the encroachments on public properties located at Jalgaon. There was a lot of commotion over that issue as a result of which, according to the petitioners, they had to intervene for maintenance of law and order in discharge of their respective official duties. It is averred in the complaint lodged by respondent No. 1 that when a particular encroachment was being pulled down, the officials, who were made accused in the case, sought to intervene in that matter and that, while stopping the work of removal of encroachment, they had mishandled the complainant i.e. the President of the Municipal Council and some other Municipal councillors who were present along with him at that time.
3. After institution of the complaint, the learned Chief Judicial Magistrate passed an order dated 31-7-1993, for an enquiry by himself under S. 202 of the Code of Criminal Procedure. Thereafter, it appears that, he had recorded some statements of the witnesses and had then passed the impugned order dated 8th September, 1993 under which the process was issued against the present petitioners for offences punishable under Ss. 353, 332, 323, 504, 506 read with S. 34 of the Indian Penal Code. The offence punishable under S. 332/34 of the Indian Penal Code is punishable with imprisonment for three years or fine or both. Hence, presumably the procedure to the adopted at the trial is that prescribed by the Code for a "warrant case".
4. It is this order which is sought to be challenged in this Writ Petition in exercise of the powers of the High Court under Art. 227 of the Constitution of India as well as S. 482 of the Code of Criminal Procedure. On 24-9-1993, this Court (Coram : N. P. Chapalgaonkar, J.) directed the Rule to be issued and granted interim relief staying the proceedings in the Court below. It was on this background that the matter was placed for hearing today.
5. At the outset, Mr. Atre, learned Counsel for the respondent No. 1, raised a preliminary objection in this matter about maintainability of the proceedings, particularly in the light of two rulings, namely, Kailash Chaudhari v. State of U.P. 1994 Cr. LJ 67 (Allahabad High Court), which was in itself a decision on the relevant point on the basis of ruling of the Supreme Court in K. M. Mathew v. State of Kerala . It was contended that there was no justification for the High Court to interfere in the matter, through, no doubt, the High Court had jurisdiction to do so, in the light of the aforesaid rulings. It was submitted that the case of the complainant cannot be prejudiced by the High Court on the basis of material placed before it by the respondents especially when the Magistrate himself had jurisdiction to re-examine the issue in the light of aforesaid rulings.
6. Mr. Page appearing for the petitioners submitted on the basis of rulings in State of Haryana v. Bhajanlal that the High Court had jurisdiction to entertain and hear this matter in the interest of justice and to prevent abuse of process of law.
7. Mr. Chaudhari, learned APP for the State, supported Shri Page.
8. Arguments of the parties were heard at length. Indeed the influx of proceedings under S. 482 of the Code of Criminal Procedure (sometimes coupled with Art. 227 of the Constitution of India) has increased so much that a need us felt to lay down some regulatory principles. In cases liable as "summons cases" the Magistrates usually record the verification of the complaint and direct issuance of summons or warrant under S. 204 of the Code of Criminal Procedure. In rare cases inquiry is directed under S. 202 of the Code. Somewhat similar in the position in the context of cases triable as "warrant cases" though the incidence of directing inquiry under S. 202 of the Code of Criminal Procedure, is little more. The orders for issuing summonses or warrants are passed ex parte and according to the prevalent view, at that stage the accused is considered not to have a locus standi to contest the issuance of process by the Magistrate. It is common to think that after the accused appears in response to the summons or warrant, as the case may be, the Magistrate has no jurisdiction to revert to the provisions of S. 204 to consider before commencement of recording evidence before charge in warrant cases for dismissal of the complaint on the basis of the consideration, whether or not, a case is disclosed in the complaint for an offence. In sumons cases "instituted otherwise than on a complaint" the Magistrate has no jurisdiction to stop the proceedings under S. 258 of the Code and, therefore, the only course open to him is to acquit or convict the accused under S. 255 of the Code, unless the complaint is withdrawn under S. 257 of the Code. Therefore it is common to think that once the process is issued by the Magistrate, he cannot revert to S. 204 for dismissal of the complaint under that Section even if the accused were to point out to the Magistrate, on the basis of the material placed before it, that the complaint was liable to be dismissed as no offence was disclosed on the facts averred. This sort of view of the matter has increased the influx of proceedings under S. 482 of the Code of Criminal Procedure and/or Art. 227 of the Constitution of India, for quashing of criminal proceedings and a considerable time and energy is required to be spent in High Court for avoidable dealing with such Courts at the High Court level. This is not to say that the High Court has no jurisdiction to do so. This is to say only that High Court should not be required to look into such matters, except in very rare cases where there is, even after giving opportunity to the trial Court to deal with the matter for considering the material placed before the Magistrate by the accused, failure of justice of abuse of process of law.
9. The position of law, in this behalf, was examined in the course of arguments advanced before us. The position of law may be stated thus :-
(i) In Bindeswari v. Kali Singh the Supreme Court has laid down that the Subordinate Courts acting under Code of Criminal Procedure, do not have any inherent powers. The question involved in the case was not regarding issue of process but orders passed by the Magistrate under some other provisions were for consideration.
(ii) The High Court has inherent powers under S. 482 of the Code of Criminal Procedure. These inherent powers are not controlled by S. 397(2) of the Code, barring revision petitions on interlocutory orders. Therefore, High Court has jurisdiction to quash such orders under S. 482 of the Code of Criminal Procedure.
Shriram v. Thakurdas, 1978 Cri LJ 715 (BOM).
(iii) The orders passed by the Magistrate while issuing the process are interlocutory orders.
Shriram v. Thakurdas, 1978 Cri LJ 715 (BOM).
(iv) In Mohinder Singh v. Gulwant Singh , the Supreme Court observed that the scope of inquiry under S. 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under S. 204 of the Code of Criminal Procedure or whether the complaint should be dismissed by resorting to S. 203 of the Code on the footing that that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the inquiry, at that stage does not partake the character of a full dressed trial which can only take place after process is issued under S. 204 of the Code, calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. It was observed that the question, whether or not, the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the inquiry contemplated under S. 202 of the Code. The scope of inquiry, it was held, was to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed inquiry is called for during the course of such inquiry.
(v) In Smt. Chand Dhawan v. Jawahar Lal , it was held, when the Magistrate had issued process on satisfying himself that, on facts, a prima facie case existed for an offence, the High Court was not justified in quashing the prosecution on the basis of materials produced by the accused before the High Court.
(vi) The question whether an interlocutory order passed by the Magistrate regarding production of documents would be recalled by the Magistrate was answered in affirmative in Mirza Mohd. Afzal Beg v. State of Jammu and Kashmir, AIR 1960 J & K 1 : (1960 Cri LJ 62). This decision was arrived at following the ruling in Lalit Mohan v. Nani Lal, AIR 1923 Cal 662 : (1924 (25) Cri LJ 464). In that case, it was held that an order passed by the Magistrate under S. 204 of the Code of Criminal Procedure, for issuing the process could be recalled by the Magistrate and a subsequent order passed by him for inquiry under S. 202 was not without jurisdiction.
(vii) In a proceeding under S. 125 of the Code of Criminal Procedure, the parties had compromised the matter in one proceeding and the wife had gone to lie with the husband. The parties separated again, after a short while. On a motion to the Magistrate to resume the trial with consent of both the parties, the Magistrate had ordered that the trial be resumed. Pointing out that such a proceeding was triable as a "summons case" and further, that a compromise was not a "final judgment" in the matter, it was held that there was no bar of S. 362 of the Code of Criminal Procedure for adopting the said procedure. Pavittar Singh v. Bhupinder Kaur, 1988 Cri LJ 1624 (Punj & Har).
(viii) A proceeding under S. 125 of the Code of Criminal Procedure was dismissed for default in appearance of the party before the evidence was recorded. The Delhi High Court held that the Magistrate could recall that order and resume hearing.
Smt. Prema Jain v. Sudhir Kumar Jain, 1980 Cri LJ 80.
(ix) In K. M. Mathew v. State of Kerala , the learned Magistrate had issued process against the petitioner therein for an offence punishable under S. 500 read with S. 34 of I.P.C. after examining the complainant on otah and had ordered issuance of summons. The petitioner had appeared before the Magistrate and had applied for recalling of the order in view of the facts and circumstances placed by him before the Court. The learned Magistrate had acceded to his prayer and had recalled the order granting process. When the matter was taken up to the High Court, the High Court had allowed the revision and had set aside the order passed by the Magistrate. Therefore, the matter was carried to the Supreme Court. While deciding the point at issue, the Supreme Court observed (at pp. 3780-3781 of Cri. L.J.) "The High Court seems to be too technical in this regard. If one reads carefully the provisions relating to the summons cases, the power to drop the proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking congnizance of the offence and the issue of summons to the accused. When the accused enters the appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is an allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint in the involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused .........."
"It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on the reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process as an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."
(x) Relying on these observations, Allahabad High Court held in Kailash Chaudhari v. State of U.P., 1994 Cr LJ 67 that it was open to the Magistrate to drop the proceeding if the complaint on the very face of it did not disclose any offence against the accused. Stressing further the point that the order issuing the process was an interlocutory order, Allahabad High Court proceeded to observe further that S. 387(2) of the Code of Criminal Procedure contained an express bar to the interference in revision against an interlocutory order and that being so, the High Court should not, as a matter of sound exercise of judicial discretion, invoke its inherent jurisdiction under S. 482 of Cr.P.C. to quash the complaint unless the accused has first approached the Magistrate for the purposes of dismissing the complaint on the ground that there was no sufficient ground to proceed in the matter. It was observed, further, that the accused must be relegated to the remedy under S. 204 of the Code to approach the Magistrate and satisfy him that the process in the case ought not to have been issued. Needless to say, it was said, that if the Magistrate is so satisfied, he may recall the order issuing the process under S. 204 and dismiss the complaint under S. 203 of the Code. The course to be adopted by the Magistrate in a case of an enquiry under S. 204 is thus indicated.
(xi) The Supreme Court in State of Haryana v. Bhajanlal , had indicated several contingencies in which High Court might interfere in criminal matters, in exercise of powers under S. 482 of the Code of Criminal Procedure for the purposes of quashing the proceedings.
10. Mr. Page submitted, therefore, that when the High Court could exercise such a jurisdiction, it was certainly a right of the petitioners to move the High Court for quashing of such a proceeding. Indeed, the aforesaid decision in Bhajanlal's case (1992 Cri LJ 527) (SC) does not militate against the decision of the Supreme Court in K. M. Mathew's case (1992 Cri LJ 3779) or the decision of the Allahabad High Court. Jurisdiction of a High Court under S. 482 of Code of Criminal Procedure is certainly plenary, wide and large. The question is in which contingencies such jurisdiction should be exercised by the Magistrate. One of the cardinal principles which was emphasised upon by the Allahabad High Court was that when an alternative remedy was available to the petitioner in the Court which was seized of the matter, it was not proper for the High Court to exercise the jurisdiction under S. 482 of the Code of Criminal Procedure or, even, for that matter under the revisional jurisdiction. It is this principle which really regulates the filing and the conduct of the proceedings under S. 482 of the Code of Criminal Procedure and/or under Art. 227 of the Constitution, in a High Court, for quashing the order passed by the trial Court for issuing process against accused. If at all the Magistrate or the Special Judge, who is seized of the matter, commits any error, despite the material placed before him by the accused in a proceeding for recalling the process directed to be issued by him, the High Court would certainly intervene in the matter, if it deems fit, in the interest of justice, and pass appropriate orders; but it would not be proper to deprive the Magistrate or the Special Judge, who is seized of the matter, even an opportunity to apply his mind to the facts of the case or to the material which would be placed before him by the accused on his appearance in the Court on the basis of which the order for recalling the process is prayed for.
11. Apart from the point indicated above, that the Court which is seized of the matter is deprived of an opportunity of applying mind to the issues involved after appearance of the accused, if the High Court intervenes in each and every matter or in most of the matters under S. 482, in a "summons case", it so happens that the material which is sought to be placed formally on record by the parties to the proceedings is virtually pre-judged in the High Court, without giving the parties an opportunity to adduce appropriate evidence according to law before the trial Court. Sometimes, it may cause prejudice to the complainant and sometimes it may cause prejudice to the accused but, in any case, prejudice is certainly caused to the interest of justice in such matters if the Court, which is seized of the matter, is deprived of the opportunity to apply its mind to the facts of the case when such material is placed before him, after appearance of the accused, by the said accused. This needs to be averted and checked.
12. It was contended on behalf of the respondent No. 1 that appropriate directions could be given in the present Writ Petition at this stage only and the Writ Petition could be disposed of. It was also contended that if at all the Writ Petition was kept pending in this Court, that fact would weigh adversely on the mind of the Magistrate in arriving at his conclusions on the point. We do not think in the facts of the present case that dismissal of the Writ Petition at this very stage is really necessary for the reasons put before us by Mr. Atre. Mere pendency of the Writ Petition in the High Court is not likely to regulate the views of the Magistrate while deciding the matter, particularly when he is aware of the fact that in this and other ancillary matters, the parties have been alert enough to move this Court, either in Writ Petition or in other proceedings as quickly as possible, for the reliefs which they thought appropriate. Therefore, the pendency of the Writ Petition is not likely to affect the interests of either of the parties. Even then, it is sufficient to record a word of caution for the Magistrate that he need not dwell upon any such consideration which deciding the issue which is now being referred to him.
13. Mr. Page was right enough in submitting that the petitioners should be now allowed to move the Magistrate under S. 204 of the Code of Criminal Procedure, in the light of the rulings referred to above and pray for the decision of the matter within a certain time limit. The time limit is called for in this particular case because of the very peculiar facts of the case when a public servant, who is elected by the populace as a President of the Principal Council, has confronted the highest officials in the State bureaucracy at District level, who are responsible for maintenance of law and order. Such a legal battle between the two sets of public officials does not add to the dignity and decorum of either of them nor is it in the interest of public administration and effective dealing with law and order situation in the concerned District. It is, therefore, necessary that such matter is given due priority in larger interests of the administration and law and order in the District and is decided according to law within a reasonable time.
14. In the light of these observations, we modify the interim stay that was granted to the proceedings in the Court below and direct that the petitioners in these proceedings shall be at liberty to move the Magistrate under S. 204 of the Code of Criminal Procedure in the light of the observations made in the rulings referred to above and in the light of the observations made in this order, for placing before the Magistrate the appropriate material and for praying for recalling the orders granting process against the present petitioners. Mr. Page submits that such an application would be filed in the Court below the end of February, 1994. Indeed, Mr. Page volunteered to do so. If such an application is so filed, the learned Magistrate shall give the parties appropriate opportunity of hearing and placing the material available respectively to them and then to consider the matter, if he deems so fit, for deciding whether or not, process needs to be recalled and/or reissued in the matter. The matter shall be decided as early as possible and in any event, prior to 15th of April, 1994. The trial Magistrate shall, then, submit a report to this Court about compliance of the orders passed now. S.O. till 20th April, 1994.
15. Order accordingly.