Punjab-Haryana High Court
Savera Sidhu vs Harleen Sidhu And Another on 14 October, 2010
Crl. Misc. No.M-7689 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-7689 of 2009
Date of Decision: 14th.10.2010
Savera Sidhu ....Petitioner
Versus
Harleen Sidhu and another ...Respondents
Crl. Misc. No.M-8761 of 2009
Budh Singh and others .....Petitioners
Versus
Harleen Sidhu and another .....Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. Vikram Chaudhari, Advocate
for the petitioner.
Mr. N.K. Sanghi, Addl. A.G., Punjab
and Mr. K.S. Pannu, D.A.G., Punjab
for the respondent-State.
Mr. A.P.S. Deol, Sr. Advocate
with Mr. J.S. Mehndiratta, Advocate
for the complainant.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
By this common Order, Crl. Misc. Nos.M-7689 of 2009 and Crl. Misc. No.M-8761 of 2009 shall be decided together as both of them arise out of the same complaint and similar law point is involved in both the cases.
Crl. Misc. No.M-7689 of 2009 has been filed by the unmarried sister of the husband of the complainant, whereas, Crl. Misc. No.M-8761 of Crl. Misc. No.M-7689 of 2009 2 2009 has been filed by the father-in-law, mother-in-law and husband of the complainant. For the sake of convenience, the facts are being taken from Crl. Misc. No.M-7689 of 2009. The petitioner in Crl. Misc. No.M-7689 of 2009, who is the sister-in-law of the complainant is a post graduate having a degree of Masters of Arts in Psychology and apart from that, she is qualified Interior Designer from United States.
This is a petition under Section 482 Cr.P.C for quashing of complaint titled as "Harleen Sidhu vs. Ravipreet Singh Sidhu and others"
pending in the Court of Chief Judicial Magistrate, Kapurthala under Sections 406, 498-A and 307 IPC and all other consequential proceedings arising therefrom including the Order dated 28.01.2009 passed by Judicial Magistrate Ist Class, Kapurthala, whereby, the petitioner has been summoned along with other co-accused to face trial under Sections 406, 498-A and 307 IPC read with Section 34 IPC.
The marriage between the brother of the petitioner i.e. petitioner No.3 in Crl. Misc. No.M-8761 of 2009 and complainant had taken place on 01.03.2008 at Kapurthala as per the Sikh Rites. The complainant got registered the FIR No.266 at Police Station Kapurthala, District Kapurthala on 29.08.2008. The investigation into the aforesaid FIR was completed and the cancellation report under Section 173 Cr.P.C was prepared but the same had yet to be presented before the concerned Illaqa Magistrate when the complaint was filed. The impugned complaint was filed by the complainant Harleen Sidhu in the Court of Chief Judicial Magistrate, Kapurthala.
Learned counsel-Mr. Vikram Choudhari for the petitioners at the outset did not argue the complaint on merits. However, the complaint and the summoning order was impugned by raising two fold arguments.
Firstly, that despite an investigation into the same matter being pending before the police pursuant to an FIR, the Magistrate has Crl. Misc. No.M-7689 of 2009 3 chosen to proceed with the private complaint and chosen to issue process against the petitioner without following the mandate of Section 210 of Cr.P.C which requires that in case, it is made to appear to the Magistrate, during the course of the inquiry or trial held by him that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
Secondly, the petitioner is the resident of Chandigarh/Village Ghamand Singh Wala, Tehsil Bhawanigarh, District Sangrur. Therefore, the petitioner is residing beyond the jurisdiction of the Magistrate at Kapurthala, whereas, the Magistrate has proceeded to issue the order of summoning without complying with the mandate of Section 202(1) Cr.P.C.
The amendment of the Code of Criminal Procedure in the year 2005 makes it mandatory for the Magistrate to hold an enquiry, in a case, where the accused person is residing at a place beyond the area in which the Magistrate exercises his jurisdiction. The impugned order is absolutely non-speaking, as well as, cryptic which does not seem to record the satisfaction of the Magistrate before issuing the process.
Learned counsel for the respondent, on the other hand, submitted that the holding of an enquiry under Section 202(1) Cr.P.C was not mandatory and that in any case, the Magistrate summoned the petitioners after recording preliminary evidence and satisfied himself about the veracity of the allegations in the complaint. Statements of CW-1 Dr. Gur Iqbal Singh, CW-2 Amarveer Singh, CW-3 Harleen Sidhu, CW-4 Harminder Singh, CW-5 Inderbir Singh Sidhu were duly recorded before summoning. No other form of evidence or enquiry was required. This was sufficient compliance with Section 202(1) Cr.P.C.
Learned counsel for the parties have been heard at length.Crl. Misc. No.M-7689 of 2009 4
With respect to the argument raised by learned counsel for the petitioner that the Magistrate had chosen to proceed with the private complaint without following the mandate of Section 210 Cr.P.C., it would be important to extract the provisions of Section 210 Cr.P.C., which reads as under:-
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 Cr.P.C and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
It is apparent from the perusal of the above that in case, the investigation by the police is pending in relation to the same offence, the Magistrate shall stay the proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation. Crl. Misc. No.M-7689 of 2009 5 Admittedly, the fact that the FIR was pending and the investigation by the police was in progress in relation to the same subject matter as in the complaint was duly brought to the knowledge of the Magistrate. The fact that the investigation in the FIR was pending was mentioned in para 15 of the said complaint. However, without complying with the provisions i.e. without calling for the police report, the Magistrate went on to record the evidence. As per Section 210 Cr.P.C., the Magistrate should have stayed the proceedings of such inquiry and call for a report on the matter from the police officer conducting the investigation. This was not done. Without complying with the above provisions, the Magistrate went on to record the statements of CW-1 Dr. Gur Iqbal Singh, CW-2 Amarveer Singh, CW-3 Harleen Sidhu, CW-4 Harminder Singh, CW-5 Inderbir Singh Sidhu and after recording the statements, the petitioners were ordered to be summoned by passing the following Order :-
" Keeping in view the arguments and complaint alongwith evidence on record, there is sufficient ground to proceed against the accused under Sections 406, 498-A and 307 IPC read with Section 34 IPC. Accused are ordered to be summoned for 20.3.2009."
The Single Bench of this Court in the case of Kuldip Raj Mahajan v. Hukam Chand reported as 2008(1) R.C.R.(Criminal) 370 quashed the summoning process where the cancellation report was not taken into consideration by holding as under :-
"10. In the aforesaid context, learned counsel for the petitioner submitted that inspite of having called report from the Investigating Officer vide order date 1.9.2000 (Annexure P-18), the learned Magistrate, while passing the impugned summoning order dated 19.9.2002, did not take into consideration the cancellation/investigation report of the police. Perusal of impugned summoning order Crl. Misc. No.M-7689 of 2009 6 (Annexure P-2) reveals that there is no reference at all to the investigation report/cancellation report of the police in the summoning order. Without considering the investigation report/cancellation report of the police, the impugned summoning order could not have been legally passed by the learned Magistrate. The respondent, despite knowledge, concealed the cancellation report of the police from the learned Magistrate. This is another indicator of mala fide on the part of the respondent.
13. Learned counsel for the respondent emphasized that disputed questions of fact cannot be adjudicated upon in the instant petition under Section 482 of the Code. Reliance in support of this contention has been placed on judgment in the case of T.Banamber Patra and others v. Vinod Kumar Sethi and another, reported as 2007 (1) Law Herald (P&H) 54 and also on an unreported order dated 12.1.2006 of this Court in Crl. Misc. No. 2052-M of 2006 titled as Ranjit Singh and others v. Sharda Devi. There cannot be any quarrel with this legal proposition. Disputed questions of fact cannot be gone into in a petition under Section 482 of the Code. However, this Court cannot be a helpless spectator when it is made out that the criminal prosecution is mala fide and an abuse of the process of the Court. In fact, this Court has inherent power and corresponding duty to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the instant case, the impugned complaint in result of mala fide as the respondent was nursing grudge against the petitioner as discussed herein above. The witnesses cited by the respondent were also aggrieved against the petitioner. The alleged incidents dated 9/10.9.1999 were not mentioned in letter dated 10.9.1999 (Annexure R-4) sent by the respondent. There was long and unexplained delay Crl. Misc. No.M-7689 of 2009 7 in reporting the matter to the police. After investigation by Gazetted Officer, the FIR lodged in the same matter was found to be false and cancellation report was submitted by the police. The respondent, despite being aware of the cancellation report, concealed the same from the learned Magistrate. The impugned summoning order has also been passed without considering or even referring to the cancellation report. Keeping in view all these circumstances, it is a fit case in which this Court has to exercise its inherent powers under Section 482 of the Code by quashing the impugned complaint and summoning order so as to prevent the abuse of process of court and to secure the ends of justice. In addition to it, the alleged offences are also not made out from the allegations in the impugned complaint."
In the present case, admittedly, the factum of the investigation was in the knowledge of the Magistrate. Thus, on account of the fact that the investigation was pending in the FIR on the same facts much before even the evidence was recorded, it was incumbent to stay the proceedings and to await or call for the report of the police.
The argument that violation of Section 210 Cr.P.C does not vitiate the proceedings in the facts of the present case as both the complaint and State case stand committed to the Court of Sessions, has no merit. In case, a charge sheet is presented under Section 173 Cr.P.C and the Magistrate, on the basis of the complaint without taking into consideration the report under Section 173 Cr.P.C, on the same set of allegations, comes to the conclusion that no offence is made out, the same is liable to cause prejudice to the complainant, whereas, in case, a cancellation report is submitted in the FIR and the Magistrate without taking into consideration the cancellation report comes to the conclusion that a prima-facie case is made out, the same is likely to prejudice the Crl. Misc. No.M-7689 of 2009 8 accused. Thus, ignoring the pendency of the investigation in an FIR, shall prejudice one of the two parties in either of the two situations. As such, the violation of Section 210 Cr.P.C will vitiate the proceedings. Hence, the provisions of Section 210 Cr.P.C requiring the Magistrate to stay the proceedings of an enquiry or a trial and call for a report on the matter from the police officer conducting the investigation was equally mandatory.
With respect to the argument raised by learned counsel for the petitioner that the Magistrate has proceeded to issue the order of summoning without complying with the mandate of Section 202(1) Cr.P.C., the recent amendment of the Code of Criminal Procedure in the year 2005, which came into effect from 23.06.2005 is reproduced below :-
"202. Postponement of issue of process :-
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either enquire into the case himself of 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."
Thus, one of the issue before this Court is as to whether the Section 202(1) is mandatory or not, for which, it would be necessary to go into the object behind this amendment. Clause 19 of the draft accompanying the amendment reads as thus :-
" Clause 19.- False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause weeks to amend sub-section (1) of Section 202 to make if obligatory upon the Magistrate that before summoning Crl. Misc. No.M-7689 of 2009 9 the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused."
The words "if he thinks fit" occurring before postpone the issue of process give clear indication about the option before a Magistrate to issue process or postpone the issue of the same in his discretion without holding an enquiry. This discretion now would not be available with the Magistrate in cases where amendment is made applicable. In short, the Magistrate would now be under obligation to enquire into a case either himself or direct such an enquiry to find out whether or not there was sufficient ground for proceedings against an accused where he resides at a place beyond his area of jurisdiction."
Thus, the object behind the amendment points towards the reality that the legislature intended the provisions to be mandatory in nature. In fact, the legal implication of Section 202(1) Cr.P.C being mandatory are discussed by the learned Single Bench of this Court in the case of S.K. Bhowmik v. S.K. Arora reported as 2007(4) RCR(Criminal) 650 in para 12 as under :-
" This Section (200 Cr.P.C) provides for examination of the complainants and the witnesses present, if any, by a Magistrate while taking cognizance. Section 202 Cr.P.C is contained in Chapter XV, which deals with the provisions relating to the steps which a Magistrate has to take while and after taking cognizance of any offence on a complaint. Once the Magistrate takes cognizance of offence, then he has to follow the procedure prescribed under Section 202(1) Cr.P.C. Examination of the complainant and witnesses, if any, under Section 200 Cr.P.C is done while or for taking cognizance. The Magistrate can then either hold Crl. Misc. No.M-7689 of 2009 10 enquiry or direct investigation to be made either by police officer or any other person. This is to help the Magistrate to decide if there is sufficient ground for him to proceed further. This seems to be emerging from the wording of Section 202 Cr.P.C. Thus, after taking cognizance, the stage of issuing a process would come, which under Section 202 Cr.P.C can be postponed by the Magistrate if he thinks fit to hold an enquiry or direct an investigation to see if there are sufficient grounds for proceeding or not. This enquiry or investigation now is made obligatory/mandatory in a case where accused is residing at a place beyond the area in which he exercises jurisdiction. In other words, it would mean that such enquiry/investigation is mandatory even when he has taken cognizance after examining the complainant or his witnesses under Section 200 Cr.P.C. The examination of the complainant and witnesses as envisaged under Section 200 Cr.P.C cannot be equated or be a substitute for the enquiry/investigation required under Section 202 Cr.P.C Prior to amendment, it was in the discretion of the Magistrate to hold enquiry or have the case investigated under Section 202 Cr.P.C., which now is made mandatory in the case of person residing at a place beyond the area of his jurisdiction. The nature of this enquiry or investigation continues to be the same as was prior to coming into force of the amendment in question."
Learned Single Bench went on to hold that the process in the above said case was issued only on the basis of examination of the complainant and CW-2. The said examination was done under Section 200 Cr.P.C. The same was done prior to the date of amendment of Section 202 Cr.P.C. Thus, no enquiry/investigation was held as required under Section 202 Cr.P.C and therefore, it was held that the process having been issued in violation of the mandatory requirement of Section 202 Cr.P.C could not sustain. Another Single Bench of this Court in the case of Prem Kaur @ Crl. Misc. No.M-7689 of 2009 11 Premo vs. Balwinder Kaur reported as 2009(2) R.C.R.(Criminal) 4 while relying on the judgment in the case of S.K. Bhowmik (supra) set aside the summoning order as the same was issued without an enquiry under Section 202 Cr.P.C.
Mr. A.P.S. Deol, Advocate for the respondent-complainant has brought to the notice of this Court the judgment rendered by Hon'ble the Apex Court in the case titled as Shivjeet Singh vs. Nagendra Tiwary and others reported as 2010(7) S.C.C. 578 to state that the procedural prescription are meant for doing substantial justice and in case, such prescription does not cause prejudice to parties, such provision has to be treated as directory notwithstanding use of the word "shall" and referred to in para 22 which reads thus :-
"22. The use of the word "shall" in the proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the Magistrate concerned of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word "all" appearing in the proviso to Section 202(2) is qualified by the word "his". This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process."Crl. Misc. No.M-7689 of 2009 12
Learned counsel for the petitioner, on the other hand, heavily relied on the same judgment, wherein, it is held in para 11 that the provisions of Section 202(1) were mandatory.
The entire judgment has been read out in detail. From the perusal of the above judgment, it emerges that there is a clear distinction between the provisions of Section 202(1) and 202(2) Cr.P.C. The issue and the question to be decided before the Hon'ble Apex Court was with respect to the interpretation of provisions of Section 202(2) Cr.P.C. and not Section 202(1) Cr.P.C. As per Section 202(2) Cr.P.C, the law has been finally clarified and settled in the above judgment rendered by the Hon'ble Apex Court that the provision was procedural and, therefore, directory and not mandatory and the word "shall" as applicable in the provisions of Section 202(2) Cr.P.C., will not amount to as mandatory because the same was in relation to the complainant. All the witnesses referred to in Sub Section (2) of Section 202 Cr.P.C. related to the witnesses to be produced by the complainant. Thus, the complaint cannot be dismissed only because all the witnesses named by the complainant have not been examined. The Apex Court while interpreting the proviso to sub-section (2) of Section 202 Cr.P.C though in aforesaid circumstances, observed that if a Magistrate omit to comply with the above requirement of examining all the witnesses mentioned in the complaint, the same would not by itself vitiate the proceeding. In view of the aforegoing discussions, this court was of the view that non-examination of all the witnesses mentioned in the protest- cum-complaint petition would not be in violation of proviso to sub section (2) of section 202 Cr.P.C., whereas, in Section 202(1) Cr.P.C, the word "shall" is in relation to the Magistrate himself on whom it was incumbent to hold an enquiry in case the accused was residing at a place beyond his jurisdiction. Section 202(1) Cr.P.C has two parts to it. The first part relates to a situation where the accused is residing within his jurisdiction and the Crl. Misc. No.M-7689 of 2009 13 second part which is stated in the bracket and has been inserted by the Act 25 of 2005, relates to a situation where the accused is residing outside. Thus, the enquiry as contemplated in Section 202(1) Cr.P.C., is directory where the accused is residing within the jurisdiction and mandatory, in case, the accused is residing outside the jurisdiction. Thus, it is clear that the interpretation given to the word "shall" by the Hon'ble Apex Court in its judgment titled as Shivjeet Singh (supra) was with respect to the provisions of Section 202(2) and not Section 202(1) of the Cr.P.C which was inserted after the amendment. In fact, para 11 of the judgment has finally set at rest the said question by holding that enquiry was mandatory when the accused was residing outside the jurisdiction of the concerned Magistrate. The same reads as under :-
" 11. Section 202(1) empowers the Magistrate to 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 person whom he thinks fit for the purpose of deciding whether or not there exists sufficient ground for proceeding. By amending Act 25 of 2005, the postponement of the issue of process has been made mandatory where the accused is residing in an area beyond the territorial jurisdiction of the Magistrate concerned. Proviso to Section 202(1) lays down that direction for investigation shall not be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session or where the complaint has not been made by a court unless the complainant and the witnesses have been examined on oath under Section 200."
Thus, there is no dispute with the proposition of law that the enquiry under Section 202(1) Cr.P.C., in case, the accused is residing outside the jurisdiction of the Magistrate where the complaint is filed, is mandatory.
Crl. Misc. No.M-7689 of 2009 14
At this stage, learned counsel pleaded before this Court that the said cancellation report has since been submitted before the Illaqa Magistrate and the Magistrate along with the present case has committed the same to the Court of Sessions and hence as per the proviso to Section 202(1) Cr.P.C., i.e. "direction for investigation shall not be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session or where the complaint has not been made by a court unless the complainant and the witnesses have been examined on oath under Section 200". Thus, a direction for `investigation' need not be issued, in case, the offence is triable by the Court of Sessions. However, the same pertains only to the direction qua `investigation' and not to the enquiry to be conducted by the Magistrate himself. As such, in case, the offence is to be tried exclusively by the Court of Sessions, the Magistrate will not order investigation but is still required to hold the enquiry himself. Thus, the requirement of enquiry under Section 202(1) is mandatory in the facts of the present case.
Learned senior counsel for the complainant-Mr. A.P.S. Deol raised yet another argument that the said question of not having held any enquiry was not an issue in the facts of the present case as the enquiry had duly been conducted and referred to statements of CW-1 Dr. Gur Iqbal Singh, CW-2 Amarveer Singh, CW-3 Harleen Sidhu, CW-4 Harminder Singh, CW-5 Inderbir Singh Sidhu placed on record to show that the said provisions of Section 202 Cr.P.C had been duly complied with and further referred to Section 465 of the Cr.P.C. to submit that "no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint or otherwise unless in the opinion of the Court, a failure of justice has taken place" and went on to submit that in the facts of the present case, no such injustice had been done.
Crl. Misc. No.M-7689 of 2009 15
Learned counsel for the respondent, however, vehemently opposed the same and submitted that the evidence recorded was not the enquiry as envisaged under Section 202(1) Cr.P.C and the same was different from the enquiry under Section 200 Cr.P.C and also referred to Section 460 of the Cr.P.C which lays down the irregularity which do not vitiate proceedings and Sections 461 Cr.P.C which lays down certain irregularities which vitiate proceedings.
In view of the above, two more issues arise in the present case, which requires to be adjudicated (a) as to whether the statements of CW-1 Dr. Gur Iqbal Singh, CW-2 Amarveer Singh, CW-3 Harleen Sidhu, CW-4 Harminder Singh, CW-5 Inderbir Singh Sidhu recorded as pre summoning evidence was an enquiry as envisaged under Section 202(1) Cr.P.C. (b) In case, the answer to the above is in the negative, then the next issue would be whether the said irregularity amounts to failure of justice in the facts of the present case or not.
Referring back to the case of S.K. Bhowmik (supra), the learned Single Bench, no doubt, held that this amendment has not brought in any change so far as the nature of enquiry, was concerned. However, at the same time, came to the conclusion that the process issued on the basis of examination of complainant and CW-2 was done under Section 200 Cr.P.C and not under Section 202 Cr.P.C. Hon'ble the Supreme Court in the case of M/s Pepsi Foods Ltd. vs. Special Judicial Magistrate reported as 1998 AIR (SC) 128 in para 26 held that the order of the Magistrate summoning the accused should reflect application of his mind and that mere examination of two witnesses of the complainant was not sufficient. The Magistrate is required to carefully scrutinize the evidence brought on record and even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations Crl. Misc. No.M-7689 of 2009 16 or otherwise. The observations in para 26 reads thus :-
"26. 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 that would 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."
Therefore, the enquiry as per Section 202 Cr.P.C would certainly be more than what is required under Section 200 Cr.P.C as well as recording of personal satisfaction to show that the Magistrate was conscious of said provisions.
It is apparent in the present case that the Order dated 28.01.2009 passed by Judicial Magistrate Ist Class, Kapurthala does not reflect that the Magistrate was conscious of the fact that he was holding an enquiry under Section 202(1) and neither recorded any personal satisfaction to that effect.
The said issue having been answered in the negative, we need to go into the other part as to whether the said irregularity amount to failure of justice in the facts of the present case or not. There is no doubt Crl. Misc. No.M-7689 of 2009 17 with the provisions of Section 465 Cr.P.C., which reads as under :-
"465. Finding or sentence when reversible by reason of error, omission or irregularity.-(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error; or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
Section 465 Cr.P.C itself lays down, "unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby." Meaning thereby, that an order in violation of such procedure or an irregularity in following such procedure can be set aside if it has caused prejudice.
As per the facts of the case in hand, it has already been discussed and held in the earlier part of the judgment that how non-compliance of Section 210 Cr.P.C may cause prejudice to either side in a given situation. In the present case, there has been violation of not only the mandatory provisions of Section 202(1) Cr.P.C but also of the provisions under Section 210 of the Cr.P.C. Thus, the provisions of Section 465 Cr.P.C will not come to the rescue in the facts of the present case.
Moreover, the present petition was filed before this Court as Crl. Misc. No.M-7689 of 2009 18 soon as the summoning order was passed. Hence, the condition laid down in Sub-clause (2) of Section 465 Cr.P.C that objection should be raised at an early stage is also duly satisfied in the present case. Deviation from the procedure or from the express provision of Act with respect to the summoning procedure or procedure of the trial which is mandatory amounts to disobedience and leads to the trial being vitiated which cannot be rectified under the provisions of Section 465 Cr.P.C.
As a sequel of above discussion, the present petitions are allowed and the impugned order dated 28.01.2009 passed by Judicial Magistrate Ist Class, Kapurthala,is set aside and the case is remanded back to the Magistrate to pass appropriate orders after complying with the provisions of Sections 210 Cr.P.C and 202(1) Cr.P.C. as expeditiously as possible.
Mr. N.K. Sanghi, learned Additional Advocate General, Punjab vehemently tried to make his point that the learned Magistrate should have passed an order accepting or rejecting the cancellation report instead of sending it to the Court of Sessions straight away. The said prayer cannot be taken up in the present case as no such application has been filed before the Court. The prosecution is always at liberty to file such application in accordance with law before appropriate court. Moreover, the case at hand has in any case been remanded back to the Court of Magistrate to pass fresh orders in accordance with law.
Allowed in the above said terms.
(NIRMALJIT KAUR)
14th.10.2010 JUDGE
gurpreet