Patna High Court
Anil Kumar Sah And Ors. vs Nagendra Singh on 16 May, 1989
Equivalent citations: 1991CRILJ421
JUDGMENT Ram Nandan Prasad, J.
1. The prayer in this application is to quash the order dated 2-2-1983 passed by the Chief Judicial Magistrate, Motihari in Complaint Case No. 948(C) 81 T.R. No. 1306/83 whereby the learned Magistrate has taken cognizance of the offence under Sections 323 and 379 of the I.P.C. against the petitioners who figure as accused persons in that case. It has also been prayed that after quashing the impugned order the rule may be made absolute against the opposite party Nagendra Singh, who is the complainant of the case.
2. The complainant case arises out of the protest petition filed by the opposite party in Motihari P.S. Case No. 98/81. From the lower Court record, which has been called for in this case, it appears that at 9 a.m. on 4-4-81 the opposite party Nagendra Singh filed a written report at Motihari Sadar P.S. alleging therein that at about 12.30 in the previous night while he was returning after seeing cinema and had reached near the northern Gumti of Motihari Railway Station, he was surrounded by four persons i.e. petitioners who asked him to withdraw the case which had been filed against them by his uncle and this led to an altercation in course of which there was also scuffle (Hathapai). He further alleged in the written report that in course of scuffle Rs. 75/- had been taken out from his upper pocket and that on his Hullah the witnesses came there and the accused persons ran away. On the basis of this written report the police instituted Motihari Town P.S. case No. 98/81 but after due investigation the police submitted final form dated 22-4-1981 stating therein that the case was false. The opposite party Nagendra Singh filed a protest petition dated 29-4-1981 in the Court of the Chief Judicial Magistrate, Motihari and this was treated as the petition/complaint and the Chief Judicial Magistrate after examining the complainant on Soleman Affirmation, directed the Probation Officer, Mohitari by his order dated 5-11-81 to make an investigation under Section 202 of the Code of Criminal Procedure and submit his report. The Probation Officer after conducting the necessary investigation submitted his report dated 14-6-82 which was put up before the Chief Judicial Magistrate on 6-7-82. However, the complainant Nagendra Singh filed a petition in the Court of the Chief Judicial Magistrate on 11-6-82 alleging therein that the accused persons (that is the petitioners) were very rich and influential men of Motihari town and the complainant apprehended that the Investigating Officer had gone in collusion with them and that is why he was not submitting his report. Though this petition was filed in the Court of the Chief Judicial Magistrate it was never moved. The Investigating Officer gave a detailed report showing how false statement had been made by the complainant and his witnesses and he accordingly recommended that the petition may be dismissed. The learned Chief Judicial Magistrate, however, after hearing the complaint passed the impugned order whereby he decided to take cognizance and issue summons against the petitioners.
3. The impugned order dated 2-2-83 is a detailed one. The reasons given by the Magistrate for not accepting the report of the Investigating Officer are firstly that the complainant in his petition dated 11-6-81 had alleged that the Inquiring Officer had been seen talking with the accused persons who had gone to his residence and that he had gone in collusion with the accused persons and secondly on the ground that the Inquiring Officer, of his own accord, had perused the daily out-door register of the Veterinary Hospital, Motihari and had taken the statement of the Manager of the Madho Talkies Cinema Shri Gopal Prasad, in order to verify the truth or falsehood of the complainant's allegations and the statements of the witnesses. Commenting on this the Chief Judicial Magistrate made the following observations :
"The Enquiring Officer has no business to examine Gopalji Prasad, Manager of Madhaw Talkies and to look into the register of Veterinary hospital on his own accord. In an enquiry under Section 302, Cr.P.C. the Enquiring Officer has to record the statement of the witnesses produced by the complainant and to peruse the documents produced by the complainant and not to examine the witness of his own accord. For these reasons I am not prepared to rely on the report of the Enquiring Officer."
Indeed the fact that the Inquiring Officer had made an independent investigation apart from recording the statement of the complainant and his witnesses has been taken by the Chief Judicial Magistrate as a circumstance which, according to him, supports the complainant's contention that the Inquiring Officer was in collusion with the accused persons. Having made these comments, the Chief Judicial Magistrate in his impugned order has merely observed that the statement of the complainant and his witnesses during the enquiry under Section 202 of the Code of Criminal Procedure prima facie make out a case under Sections 323 and 379 of the I.P.C. against the four accused persons named in the petition of complaint and as such he took cognizance of the offence and ordered for issue of summons against the accused persons (the petitioners).
4. It was urged on behalf of the petitioners that the learned Chief Judicial Magistrate had taken a completely erroneous view of law in thinking and observing that in an investigation under Section 202, Code of Criminal Procedure, the Investigating Officer has to confine himself to the statement of witnesses and documents produced by the complainant and he cannot go beyond it and make independent enquiry to ascertain the truth or falsehood of the statements made before him and of the allegations made by the complainant. In this context, it has been urged that the learned Magistrate's mind was so much overweighed by the fact that the Investigating Officer had not confined himself to what was stated by the complainant and the witnesses but had made an independent investigation that he considered this to be a ground for blindly accepting the complainant's allegation that the Investigating Officer had gone in collusion with the accused persons even though the petition making allegations against the petitioners (accused persons) was never even moved by the complainant before the Chief Judicial Magistrate. It has also been pointed out that the learned Magistrate did not choose even to look into and give proper consideration to the facts stated in the report of the Investigating Officer and the reasons given by him for coming to the conclusion that the case was a false one and the complaint petition should be dismissed. It was urged that the fact that the learned Magistrate blindly accepted the allegations of the complainant without even considering the report of the Investigating Officer on its own merit indicates an unbalanced approach and this itself is sufficient to quash the impugned order. It was further urged that the facts and circumstances are sufficient to show that on account of the enmity, which the complainant himself admits, a false case was filed to harras the petitioners and hence the entire proceedings ought to be quashed.
5. I will first take up the point relating to the scope of investigation under Section 202 of the Code of Criminal Procedure. For this purpose it is better first to look into the provisions of Section 202 which are as follows :--
"Postponment of issue of process-- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer, or by such other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
Provided that, no such direction for investigation shall be made,--
(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under Sub-section (1) the Magistrate may, if he thinks fit, take evidence of witnesses on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station, except the power to arrest without warrant."
Sub-section (1) provides that if the Magistrate thinks fit to postpone the issue of process against the accused persons, he may "either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding". Sub-section (3) states that if the investigation is done by a person other than a police officer, then the Investigating Officer shall have all powers conferred by the Code of Criminal Procedure on an officer-in-charge of the police station except the power of arrest without warrant. It was submitted that Sub-section (3) itself clearly states the scope of investigation by a person other than a police officer and it empowers such an Investigating Officer to take all steps and do all things (except making arrest without warrant) which an officer-in-charge of a police station may do while investigating a police case. It has been rightly submitted that the wordings of Sub-section (3) make it clear that the Investigating Officer is not required to confine himself to the recording of statements of the complainant and his witnesses and examining only such documents and other evidence which the complainant may produce and he has full powers to do all things which in his opinion would help to probe the case. It was argued that had the Magistrate merely looked at the wordings of Sub-section (3), he could not have taken an erroneous view as has been done by him in the impugned order. In my opinion, there is substance in these arguments put forward on behalf of the petitioners.
6. The real object of the investigation under Section 202 is to collect all necessary evidence which will throw light on the allegations made by the complainant, and the Investigating Officer's powers are not restricted to merely taking note of what is produced before him by the complainant either by way of oral evidence or by means of documents. There is a rationale for allowing the Investigating Officer a wide scope. It may be noticed that the inquiry or the Investigation mentioned in Sub-section (1) of Section 202 is held with a certain object in view, the object being "for the purpose of deciding whether or not there is sufficient ground for proceeding". If the investigation is to be restricted to merely recording the statements of the complainant and his witnesses and the documents produced by him, this would obviously defeat the object in view because such restricted enquiry and investigation in most cases will not bring to light facts and circumstances which would enable the Court to decide whether sufficient grounds for proceeding in the case exist or not. Restricted inquiry confined only to the oral and documentary evidence produced by the complainant would give only one side of the picture and would hardly make available any material which could enable the Magistrate in suitable cases to conclude that the grounds are not sufficient for proceeding in the case. It is, obvious, therefore, that the officer who is conducting an investigation under Section 202 of the Code of Criminal Procedure has full powers and he even on his own accord may collect evidence and information beyond what is produced by the complainant.
7. The above view is fully supported by the case reported in AIR 1930 Mad p. 443 (Nagi Reddy v. Emperor). His Lordship Wallace, J. had observed that the Investigating Officer could even import his own knowledge or examine witnesses whom he knows to be able to throw light. In the case of Fanindra Kumar Das v. Rahat Baksh Chaudhary reported in 37 Calcutta Weekly Notes p. 709, their Lordships have gone to the extent of observing that if while holding an inquiry under Section 202 of the Code of Criminal Procedure the Magistrate examines or questions the accused persons regarding the statements of witnesses he cannot be said to have acted illegally. This case has been referred to by me merely with a view to indicate that the powers of the Inquiring Magistrate or the Investigating Officer under Section 202 of the Code of Criminal Procedure are quite wide and can by no means be restricted to merely taking note of what is produced by the complainant or his witnesses.
8. By now it is well settled that in an inquiry/investigation under Section 202 of the Code of Criminal Procedure, so far as the accused is concerned, he may appear and watch the proceedings but cannot be allowed to participate in them i.e. he cannot be allowed to cross-examine the complainant's witnesses or address arguments. This has been laid down in the case of Smt. Nagawwa v. Veerama reported in AIR 1976 SC 1947 to 1976 Vol.3 SCC p. 736. In that case their Lordships were considering the scope of 202 vis-a-vis the accused persons and the question whether the Inquiring Officer/Investigating Officer could in the process of ascertaining the truth or falsehood of the allegations made by the complainant look into some materials himself or not was not under consideration. On that point, the decision reported in AIR 1930 Mad p. 443 is quite clear and in keeping with the object of the investigation/inquiry certain observations on the scope of Section 202 of the Code of Criminal Procedure have been made in a single Judge decision of this Court reported in AIR 1961 Pat p. 120 in the case of Merkende Rai v. Sheo Kumar Thakur. The revision application was filed in the High Court against an order of dismissal of complaint under Section 203 of the Code of Criminal Procedure where the Magistrate had gone to the extent of allowing the accused to cross-examine the complainant's witnesses, to produce his own evidence in defence and even address arguments before the Inquiring Magistrate and the latter wrote out his report as if he was writing the judgment. It was in this context that his Lordship observed that the procedure adopted by the Inquiring Magistrate was unwarranted in law. However, his Lordship also appears to have been of the view that there was nothing express in Section 202 of the Criminal Procedure (old Code) to completely confine the Inquiring Officer to what is produced before him by the complainant and that "there will be no illegality if he (accused) appears of his own accord before the Inquiring Officer and assists him in the matter of the inquiry". After referring to some cases the learned Judge made the following observations in that case. :--
"Where the Inquiring Officer has allowed the accused to cross-examine the witnesses of the complainant, or to adduce evidence in defence, or has taken into consideration some information received by him either on confidential inquiry or from some other source, the procedure though not illegal in the sense that it vitiates the ultimate order passed by the Magistrate, is unjustified, improper and condemnable".
These observations were made in relation to the facts of that case in which the Inquiring Officer had gone to the extent of allowing the complainant's witnesses to be cross-examined, permitting accused to produce evidence in defence and also address arguments in respect of the allegations. On a reading of the entire judgment I find that the point whether the Inquiring/Investigating Officer was competent to collect evidence on his own was not really in issue and hence pointed consideration had not been given to this aspect. The learned Judge had not considered this point in the light of Sub-section (2) of Section 202 of the old Code which corresponded to Sub-section (3) of Section 202 of the new Code of Criminal Procedure: hence observations as regards the competence of the Inquiring Officer to take into consideration some information received by him either on confidential inquiry or from other source must be regarded as obiter. It has also to be borne in mind that while under the old Code the inquiry or investigation under Section 202 of the Code of Criminal Procedure was with a view to "ascertaining the truth or falsehood of the complaint", the scope of the inquiry under Section 202 of the new Code is much wider and its purpose is for "deciding whether or not there is sufficient ground for proceeding". In my opinion, therefore, the person other than an officer who is conducting the investigation under Section 202 of the Code of Criminal Procedure, in the process of collection of evidence is fully competent to examine such witnesses and such documents which he thinks would throw light on the truth or falsehood of the allegations made in the complaint and include the same in his report. Indeed the very wordings of Sub-section (3) of Section 202 of the Code of Criminal Procedure indicate the ambit of the powers of the Investigating Officer and there can be no reason or rationale for saying that the powers of the Investigating Officer must be confined to what is produced before him by the complainant and his witnesses.
9. The legal position being as stated above, there can be no doubt that the learned Magistrate has taken an erroneous view in observing that the Investigating Officer should have confined himself to the recording of the statements of witnesses and perusal of documents produced by the complainant and that he had no business to examine the Manager of the Madhav Talkies and to look into the register of the Veterinary Hospital on his own accord. What is more surprising is that the Magistrate should have regarded the innocent and legally proper action of the Investigating Officer in collecting independent evidence which could throw light on the truth or falsehood of the allegations as being a ground supporting the complainant's bald allegation of collusion of the Investigating Officer with the accused persons. The learned Magistrate even failed to notice that the petition which the complainant filed containing allegations against the Investigating Officer was not even moved before the Court.
He also failed to appreciate that there was nothing improper or, illegal in allowing the accused to appear before the Inquiring/ Investigating Officer and if the accused can legally do so, it is only natural that he would be coming in contact with the Inquiring/Investigating Officer. There can be no doubt, therefore, that the learned: Magistrate in making oblique references to the Investigating Officer and in imputive motive about his alleged collusion with the accused has acted in an unbalanced manner.
10. It was urged on behalf of the petitioners that the Magistrate had full powers to differ with the report of the Investigating Officer and arrive at his conclusion as to whether sufficient ground has been made out for proceeding in the case or not, but before arriving at such a conclusion, it was incumbent upon the Magistrate to examine the reasonings given by the Investigating Officer in his report and show how they were not acceptable or valid. It has been argued that once a Magistrate has thought it proper to get an investigation done in respect of a complaint it is proper and necessary under the law that if he does not accept the facts found by the Investigating Officer and the conclusions arrived at by him, he must give reasons for the same and he cannot brush it aside by merely saying that it is not acceptable. In my opinion, this contention is quite correct. If the Magistrate could be allowed to brush aside the report of the Investigating Officer by merely saying that they were not acceptable and without given reasonings why it is not accepted, the very purpose of getting any investigation done would be defeated and indeed the investigation would become redundant. Therefore, in my opinion, it is not permissible for a Magistrate to disregard the facts and circumstances mentioned in the report of the Investigating Officer and the reasons given therein without himself stating why he does not accept these facts and circumstances found by him and does not agree with the reasoning of the Investigating Officer. The impugned order suffers from this lacuna, also. The learned Chief Judicial Magistrate has in fact not even cared to look into the materials collected by the Investigating Officer nor has indicated clearly what are his own grounds for not accepting the reasonings given by the Investigating Officer. This not only provides an additional ground for making the impugned order unsustainable but indeed goes to indicate that the Magistrate while considering the case seems to have lost judicial perspective. On these grounds, the impugned order is unsustainable and has to be set aside.
11. The further question to be considered is whether after setting aside the impugned order the case should be sent back to the Magistrate or whether the entire criminal proceeding should be quashed. The petitioners have prayed for quashing of the entire criminal proceedings on the ground that the materials on record are clear and sufficient to show that totally false case has been filed by the complainant to harass the petitioners and continuation of the proceedings would be an abuse of the process of the court and also on the ground that the case even as it, stands relates to a petty offence which is said to have taken place on the night between the 3rd and 4th of April, 1981 i.e. about eight years ago and its further continuation is against the principle of speedy justice enshrined in the Constitution. In this context, it is pointed out that the process of taking cognizance itself took about two years and the petitioners have suffered enough harassment.
12. Four persons were named as witnesses in the first information report. There four persons have also been mentioned as witnesses in the petition of complaint. The Investigating Officer under Section 202 of the Code of Criminal Procedure examined all the four witnesses as also the complainant. He found the statement of three of them to be patently false and absurd. The fourth witness and the complainant made evasive statements before him. He also noted in his report that the complainant avoided to present himself for holding inspection of the alleged P.O. He has concluded in his report that the prosecution case does not appear to be true and may be dismissed.
13. The learned counsel appearing on behalf of the opposite party strongly opposed the prayer of the petitioners for quashing the entire criminal proceedings. It has been submitted that it is for the Magistrate to decide on the basis of the materials before him whether or not process should be issued against the accused persons and once the Magistrate has exercised his discrition, this should not be interfered. In support of this argument reliance has been placed on the case of Jai Mangal Prasad v. The State of Bihar reported in 1989 PLJR 231 and the case reported in AIR 1989 SC 1. The State of Bihar v. Murad Ali Khan. It has been contended on behalf of the petitioners that these rulings are easily distinguishable on facts. In the present case, the police case originally filed was found to be false and final report submitted and then in the complaint case, arising out of the protest petition, the investigation under Section 202 of the Code of Criminal Procedure again showed that the allegations are untrue. These features are not present in the aforesaid two reported decisions and obviously they do not apply to the present case. The Magistrate, no doubt, is fully competent to disagree with, and not accept the report of the Investigating Officer under Section 202 of the Code of Criminal Procedure but he must indicate the reasons for doing so and, needless to say, the reasons must be cogent and legitimate. Here the Magistrate without considering the facts found by the Investigating Officer in the report under Section 202 of the Code of Criminal Procedure, which indicated that the case is not true, has simply brushed aside the report for wholly extraneous reasons. Such an approach must be held to be improper and erroneous.
14. In the present case, it has to be borne in mind that no part of the material i.e. on record has come at the behest of the accused persons nor they put forward any defence in course of the investigation under Section 202 of the Code of Criminal Procedure. On examining the materials on record, the position emerges as follows :--
i. The comaplainant first instituted the police case by filing a written report at the P.S. and the police after due investigation found that the case was false.
ii. The complainant filed a protest petition containing the very same allegations which he had made in the written report (filed at the p.s.) and the Magistrate directed an investigation to be made under Section 202 of the Code of Criminal Procedure and again the Investigating Officer found that me case is not true.
iii. The materials collected and the findings arrived at by the Investigating Officer under Section 202 of the Code of Criminal Procedure clearly indicate that the prosecution case is patently absurd and inherently improbable and in any view the chances of conviction are extremely bleak.
iv. It is mentioned in the complaint petition that the parties are on inimical terms but it has not been stated as to why the petitioners would go to hold out the alleged threat not to his uncle but to the complainant for withdrawal of a case which is said to have been filed by the uncle. Three of the petitioners are brothers and one of them is a minor and they along with another person are said to have gone, without any weapons to hold out the alleged threat to the complainant at 12.30 p.m. in the night as if they knew he would be returning at that time from the cinema show.
15. It has been contended on behalf of the petitioners that a false case, as found by police investigation and also investigation Under Section 202 of the Code of Criminal Procedure, has been filed to cause, harm and harassment to the petitioners. In this context the petitioners also drew attention to the order-sheet of the Magistrate's court which shows that the complainant sought adjournments on one pretext or another and thereby tried to prolong the proceeding. In support of their plea for quashing the entire proceedings, the petitioners have placed reliance on a recent decision of the Supreme Court reported in 1988 BLJR 292 Madhav Rao Scindia v. Shambhujee Rao Angre. This is what the Supreme Court has observed in this case :--
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court whether the uncontroverted allegation as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any obliqe purpose and where in the opinion of the court chance of an ultimade conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at preliminary stage".
The ratio of the above Supreme Court decision is applicable to the facts of the present case and as such it is a fit case in which the proceedings should be quashed because its continuation would amount to an abuse of the process of the Court.
16. For the reasons stated above, the impugned order and the criminal proceedings against the petitioners are hereby quashed. The application thus stands allowed.