Patna High Court
State Of Bihar And Ors. vs Tabarak Hussain on 3 December, 1982
Equivalent citations: 1983(31)BLJR251
JUDGMENT S. Shamsul Hasan, J.
1. Criminal Revision 127 of 1982 (R) and Criminal Miscellaneous No. 1858 of 1982 (R) have been heard together as they arise out of the same order passed by the Chief Judicial Magistrate, Ranchi, on 11-1-1982. In the former case, the State is the petitioner against a part of the aforesaid order by which the opposite-party has been discharged. The latter application is by one of the accused against whom process have been issued and commitment proceeding started Subsequently the petitioner has been committed and his application is under Section 482 of the Criminal Procedure for quashing of the entire prosecution. It may also be stated that the former case was filed after the expiry of the period o limitation which, however, was condoned by this Court.
2. Both these applications arise out of a Fardbeyan lodged by one Basanti Uraon on 22-8-81 at Sadar Hospital. This led to the institution of a case in Lohardaga Police Station being Lohardaga P.S. Case No. 66 (8)81. It is useful to set out the entire Fardbeyan in extension which is as follows:
Hamaranam Basanti Orain Urf Laxmi Urain entry Budhana Oraon sakin Nadia thana Lohardaga hai, Mai aaj din Sombar ko Karib 11 baje din me ap Kisko thana ke daroga ji ke samne beyan dati hu ki mai karib 1 sal se Lohardaga me Husen Sahab Magistrate ke yaha dai ka kam karti hu. Aj se karib 3-4 mahina pahle mere sahab, Husen Saheb, mem sahab ke sath chhutti me apne ghar Gaya ja rahe the. Un logo ne mujhe kaha ki humlog ghar se karib ek saptah bad laotange. Apne ghar chali jana. Jab hamlog lautenge tab tumhe khabar kar denge. Jab sahab log quarter se chale to us samay din ke karib do baja tha, Us din Sukra din tha, Usi samai mai apne ghar jane lagi. Itne par Court ka ak chaprasi jiska nam mai nahi janti hu parantu dekhkar pahchan sakti hu jo abhl Court me kam karta hai mere pass aya or mujh se kaha ke turn kaha ja rahi ho. Is par maine kaha ke mai apne ghar ja rahi hu. Tab uha bola ki turn mere yaha chal kar mera chulha bana do. Uske kahne par mai uske quarter me jo kachhari ke hata me hi hai gai aur uska chulha bana di. Uske bad uha mujhse kaha ki kothri me bhi jawo kam aur hai jab mai uske kahne par uske kothri me gai to uha mere hath pakar kar jamin par bichhawan par patak diya. Aur mujhse kaha ki agar turn halla karogj to marunga. Dar ke mare maine halla nahi kiya. Iske bad uha jabardasti meri sari upar utha diya aur apna pant bhi khol diya. Uha apna land mere bur me ghusa diya Aur mujhe Chodne laga, Uha us samai hath se meri chhati bhi pakre hua tha. Mujhe kafii dard ho raha tha. Uha karib 15 minute tak mujhe chodte raha. Jab uha chod kar utha to mujhe kafi dard ho raha tha. Mai dard ke mare yonhi baith gai. Jab mera dard khuch kam hua to uha mujhe char rupaya diya aur kaha ki yah bat kisi se mat kahna. Mai uske bad unha se apne ghar chali gai. Ghar me maine yha bat laj sharm se kisi se nahi kahi, Karib ak hafta bad jab sahab log Gaya se aa gaye to mal puna jakar kam karne lagi. Karib do mahina bad mera mahinabandi band ho gaya. Aur mujhe ulti hone laga to mem saheb ne mujhse pucha ki kya bat hai. Kya tumhare pet me bacha hai. Us par maine sab bat saf saf mem sahab ko bata di. Is bat ko mem saheb ne sahab se bhi kah diya. Tab sahab ne kaha ke mai tumhara llaj karwa dunga. 15 August ki jhanda ke den Husen Saheb ne Dr. Jamal ko jo Janwar ke doctor hai ko bulaya aur unse kaha ke ap meri dai ko Kisko Hospital me le jakar dawai karwa dijia maine doctor se bat karliya hai. Is par Dr. Jamal mujhe apni motor Saikil me baitha kar karib 2 baje Kisko Hospital le gaye janha par uha ke dactor sahab mujhe table per leta ker mere done bahe me do sui lagaye. Iske bad mah behosh ho gai. Jab karib do ghanta bad kuchh hosh hua to maine dekha ki mere peshab ke raste me patti bhandha hai. Aur khun bhi bah raha hai iske bad Dr. Jamil fir se apni motor saikil me bathakar mujhe Lohardaga le jane lage to Kisho thana me pas uha ki police mujhe tatha Jamal ko thana me le jakar puchh tachh kiya chuki mai dard se pareshan thi aur achhi tarah hosh me bhi nahithi isliye maine ye sab bate doroga ji se nahi kahi. Dr. Jamal ne police ke samne apna byan diya. Bad me police hamlogo ko uha se jane ko kahe tab Dr. Jamal lekar Lohardaga aye aur Husen saheb ke yha chhor djye. Mai vahi rahne lagi. Aj sab Sadar Hospital me janch ke liye ai to ap daroga ji ke samne sahi sahi but bata riai hu.
Yah mera byan hai maine byan parhwakar sun liya wa sahi pakar gabaho ke samne angutha ka nishan bana diya.
In this Fardbeyan the incident took place 2-3. months prior to its lodging and at that stage an allegation of sexual intercourse with the informant was made against one Mobin Ansari though not named who is a co-accused and is not connected in these applications. The fact that the informant ceased to have menstruation led to an attempted abortion through the good office of Dr. Jamal, the petitioner in the Criminal Miscellaneous case. The abortion was done openly by a Doctor in the Hospital and apparently the only action taken by the petitioner (Dr. Jamal) was the taking of the informant to the hospital. On 28-8-81, the informant was examined under Section 164 of the Code of Criminal Procedure which runs as follows:
Mobin jo Lohardaga Kachhari me kam karta hai. wahi larka hamare sath kharab kam kiya hai. Aj se 2-3 mahina pahle ak din Sukrabar ke din mai Magistrate sahab Husan sahab ke yanha kam kar rahi thi. Magistrate sahab ghar me nahi tha. Unka paribar bhi ghar me nahi tha. Din ke lagbhag 1-2 baje jab mai Magistrate sahab ke ghar me bartan saf kar mai apna ghar jane lagi to unhi ke ghar par Mobin aya aur hame apne ghar me chulha banane ke liye jane ko kaha Us din ke do din pahle bhi Mobin hame unke chulha bana dene ke liye kaha tha. Magistrate sahab sparibar usi din gaya chale Gaye the janha unka ghar hai.
2. Mai Mobin ke khane pay kachhari compound me hi thi jel me samne unke ghar me chulha banane ke liye akele gal. Mai Mobin ke ghar par ak do baje hi pahuchi. Bahut dhup tha aur bahut garmi par rahi thi, Mobin pahle se he ghar me tha.
3. Mai chulha banakar jane lagi to Mobin bola ke itna dhup me kaha jawogi. Yahi baitho. Mai uske ghar ke darwaja ke pas baith gai. Tab wha bola ki udhar garmi me kahe balthe ho andar akar baitho. Uha mujhe dhakelkar ghar ke andar le giya aur dhar pakar hamko karne laga. Uske bad uha hamare sath kharab kharab kam jabardasti kiya. Mujhe us time me buhut taklif huee Chhorta bhi nahi tha jaldi. Mai halla kar rahi thi. Uha mera muha dabane lage aur kahne laga halla mat karo uha jaldi chhorta bhi nahi tha.
4. Mai adha ghanta Mobin ke ghar me rahi. Uske bad mai apna ghar chali ai. Sharam ke mare maine kise se iske bare me nahi kaha. Us ghatna ke bad jab mahina gujar gaya tab ham mahina nahi dekhne lage.
5. Magistrate sahab apna ghar se do hapta bad paribar ke sath lauta. Mai unlogo ko bhi nahi bola. Kuchh din bad me jab mahina nahi dekhne lagi aur ulti hone laga tab maine mem sahab ko kaha ki khana ka man nahi karta hai aur ulti hota hai. Mem sahab kahi kahe aisa hota hai asia nahi hona chahia. Aisa to tab lagta hai jab pet me bacha ho. Uske bad mem sahab boli ki aisa kahe lagta hai jakar doctor se dikhla lo.
6. Tab mai janwar ka doctor Jamal Sahab ke sath unke motor saikil me pichhe block ke doctor ke yha gai. Block ka doctor bola ki iske (Hamare) pet me bacha hai. Block ke doctor bole ki saf kar dete hai. Usi din block ke doctor mere pet se bacha nikalkar safkar diye. We sui dekar mujhe behosh ka saf kiye the. Uske bad block me hi thora der thahar gaye. Uske bad jab thora thora mai behosh thi thabhi Jamal doctor mujhe motor saikil par pichhe baithkar thana le aye.
7. Thana me rat bhar rahi aur rat me hi mujhe thana se Magistrate sabab ke yha laya gaya, Phir ghar par(sic)laya, Phir halla ho gaya ki Adibasi larki ko bachha girwane baithakar Doctor ke yha le gaya tha.
8. Uske bad police mujhe ilaj ke lia Ranchi le al. Block ke doctor kaha tha ki bachha saf ho gaya lekin yha doctor kahta hai thik se saf nahi hua hai.
9. Us din hamare sath Mobin ne phala bar hamare sath bura kam kiya tha. Uske age aur kisi ne bhl mere sath pahle ya bad me bura kam nahi kiya hai.
10. Abhi mere pet me thora thora dard ho raha hai yahi mera byan hai aur alawe mujhe kuchh nahi kahna hai.
In this statement also she has reiterated with embelishments the statements she had made in her Fardbeyan filed earlier. She also made a very specific statement para 9 to the effect that before the incident, sexual intercourse or after that incident with Mobin Ansari, she did not have any sexual intercourse with any one. A Section 164. Cr. PC statement was made by her on 3-9-81 which is as follows:
Mere sath Magistrate sahab tatha unka chaprasi bura kam kiye the. Magistrate sahab ki bibi jab so jati thi to Magistrate sahab rat me mere pas jate the tatha mujhko phuslakar mere sath bura kam karte the tatha kahte the ki unhone apne operation kara liye hai, Chaprasi ne jab meri sath bura kam kiye to uske bad mera masik band ho gaya.
2. Masik band hone ke bad mai Magistrate sahab ki bibi se boli to we boli ki aisa tabhi hota bai jab pet me bachha hone ko rahta hai. Mem sahab apne sahab se kahi to sahab ne jab Jamal doctor aye to unse kaha ki yah Kisko ka Hospital nahi dekhi hai ata isko le jakar Kisko hospital me dikhla dijiye.
3. Jamal doctor mujhko Kisko hospital le gaya jaha hospital ke doctor ne kaha ki isko garbh rah gaya hai. Tab Jamal doctor ne Kisko hospital ke doctor se kaha ki iske garbh saf kar dijiye. Tab doctor ne mera garbh saf kar diya tatha uske bad mai Jamal doctor ke sath laut rahi thi to logo ne hamla kiya ki mai garbh girwakar a rahi hu.
4. Hospital jane ke pahli bhi sahab ne mujhse kaha tha ki koi burhiya agar garbh utarti hai to uske pas chale jawo. Tab mai ek burhiya ke pas gai jo Raghutoli me rahti hai tatha jiske beti ka nam sonamani hai. Us burhiya kuchh jari buti ghiskar mujhe pilai tatha kai bar pilai abam boli ke isse bhi garbh utar jayega lekin 'do mahina per ho jane par bhi garbh nahi utra. Tab lachar hokar mai Arwar me hospital gai thi jaha sab kam hua.
5. Sahab jab ghar chale gaye the to mai Jamal ke ghar bhi mai do tin din rahi thi. Jamal bhi mujh ko dhar pakar kiye the tatha mujhse bura kam karna chahte the lekin nahi kar paye
6. Dubara jab garmi ke din mai sahab Id ke moke par ghar apne paribar ke sath gaye to sahab ka chaprasi mujko apne sthan per kort me le gaye tatha chulla banane ke bahane mere sath bura kam kiya. Us bakt mujhko bahut bura laga abam taklif hua lekin sharam se mai yah bat kisi ko nahi kahi. Uske bad Magistrate sahab apni bibi se chhipakar rat me mere pas akar mujhko phuslakar mere sath bura kam karte the tatha kahte the ki garbh nahi rahega. Yah sab bat mai pahle dar se nahi boll thi.
7. Kisko hospital me mera pura saf nahi hua ata bad me jab police Ranchi Hospital abam Bariatu Hospital le ai to pura saf hua. Pahle mai sahab ka nam unke kahnepar dar se nahi li thi.
3. In the statement, several embelishment and one of the allegations made was that opposite-party in Criminal revision, Tabarak Hussain, attempted to misbehave with her and also had clandestine sexual intercourse with her when his wife used to go to sleep. She has also said that her process of abortion was finally accomplished at Bariatu Hospital at the instance of police. On these allegations, the police took up investigation and submitted final form, popularly known as charge-sheet, on 31-10-81 against the two persons and Mobin Ansari under Sections 377, 364, 363 and 201 of the Indian Penal Code. On the receipt of charge-sheet, the Chief Judicial Magistrate took cognizance as stated above, discharged Tabarak Hussain and issued processes against Dr, Jamal and Mobin Ansari.
4. I take up the Criminal Revision first. The prayer in this application is that order dated 11-1-1982 passed by the Chief Judicial Magistrate should be set aside though the prayer should really have been to set aside the discharge of the opposite-party. The short point submitted is that the Magistrate has committed an error of law in discharging the opposite-party when the final form charge-sheet was filed including the opposite-party as an accused under sections which are exclusively triable by the court of sessions. The Magistrate was not empowered at that stage to discharge the opposite-party and what he should have done was to examine the allegations and after he found that the final form charge-sheet was for offences triable by court of sessions he had to commit the case and the opposite-party for trial. He has further submitted that there is sufficient material on the record to make out a case justifying commitment. In support of this submission, the learned Counsel for the State relied on Sanjay Gandhi v. Union of India and Ors. . This decision lays down scope of the power of a committing Magistrate under Section 209, Cr. PC. Reliance has also been placed on a Beneh decision of the Calcutta High Court reported in Kamal Krishna De v. State and Anr. 1972 Cr.L.J 1492. In my view both these decisions have no application whatsoever to the present case. It was also submitted on behalf of the State that once the police submitted final form charge-sheet, the Magistrate cannot differ from it. He can only differ when in final form no case is made out.
5. The learned Counsel for the State has completely ignored the provisions of Section 204 of the Cr. PC in making his submissions. The procedure that a Magistrate has to adopt is by now well settled by numerous decisions of the Supreme Court and this High Court. Cognizance is taken under Section 190(1)(b) of the Cr. PC on police report which is a report under Section 173 of the Cr. PC. The moment he receives the police report, he examines it and takes cognizance of the case. It is then open to him to proceed under Section 204 Cr. PC, that is to say, that if he finds sufficient ground for proceeding he will issue process, that is a summon or a warrant of arrest, against a particular accused, as the case may be. Cognizance is always taken first the finding out the person committing offence is a subsequent step. It follows from this that if there is no sufficient ground to proceed against a particular accused, the Magistrate may discharge him. The next step is thereafter. The case may be transferred for trial if it is triable by a Magistrate or committed to the Court of sessions if the sections are triable only by a court of sessions. It has been laid down in Raghubans Dubey v. State of Bihar . as follows:
Once he (Magistrate) takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved in it, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in Pravin Chandra Modi v. State of Andhra Pradesh . the term "complaint" would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails in our view under Section 190(1)(b).
A passage from the judgment of Hon'ble Mr. Justice Uday Sinha in the Full Bench decision reported in Kuli Singh and Ors. v. State of Bihar and Ors. 1978 B.B.C.J. 400. may be roost usefully cited:
The above recognises and lays down the basic structures of our legal system that the last say in the matter of putting accused on trial is with the Magistrate. In that view of the matter, I fail to appreciate the distinction in regard to the powers of a Magistrate when concerning a police report sending up some persons for trial (a charge-sheet) and a police report not sending up accused for trial (a final report so called). If the principle is conceded that the Magistrate is not bound by the opinion of the police in regard to charge-sheet. I fail to appreciate why he should be bound by that opinion when there is a final report. In my view, when a Magistrate is called upon to consider a Final Report, so called, he must be deemed to be exercising jurisdiction on the basis of a police report. Even then he has to exercise judicial discretion. Since it is the duty of the Magistrate to come to a conclusion in regard to persons, who should be put on trial, a Magistrate may (a) accept that final report or (b) may reject the final report and issue summons or warrant against the accused or (c) direct the police to reinvestigate into the offence if he considers the investigation to be incomplete in any respect or not directed on proper lines. The law in regard to putting accused on trial being the same in case of charge-sheet or final report, I do not appreciate how and why a Magistrate, while acting in terras of Section 190(1)(b) has courses (a) and (c) open to him but not (b). In my view upon receiving a report, under Section 173 of the Code which is a final report, a Magistrate has full jurisdiction to differ with the conclusion of the police and direct that accused not named in the report or not sent up should also be put on trial. This exercise of jurisdiction must be in terms of Section 190(l)(b).
The submission of the learned Counsel for the State was tainted with the confusion created by the misconceived meaning given by him to the word "cognizance". A faulty meaning is given to the word and it has been made synonymous with issue of process. It is very clear that the word "cognizance" doss not mean issue of processes. The learned Counsel for the State, thus, placed reliance on the well settled principle that the Magistrate must take cognizance to mean that the Magistrate must summon an accused. The mere reading of Sections 204 and 173 of the Code of Criminal Procedure answers to the submission of the learned Counsel for the petitioner. The order impugned also makes it clear that the Magistrate has firstly discharged the opposite-party then initiated the commitment proceeding. In my view, therefore, no error of procedure was committed. Attention was also drawn to Kewal Krishan v. Suraj Bhan and Ors. . B--33 This decision lays down the scope of Sections 20 , 227 read with Sections 203 and 204 of the Code of Criminal Procedure. Paragraph No. 9 is relevant and is as follows:
In the instant case, there was prima facie evidence against Suraj Bhan accused which required to be weighed and appreciated by the Court of Sessions. At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh's case (ibid), that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Section 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.
This decision lays down the extent of "sufficient ground". But it does not go to the extent of saying that the Magistrate is bound by the police report and must commit a case for trial by sessions as submitted by the learned Counsel for the State even if no sufficient ground is made out.
6. Coming to the next question whether there was sufficient ground or not it would be first useful to refer to the law in this regard. A passage from the Supreme Court decision reported in Vadilal Panchal v. Datta Traya Dulaji Ghadigaonkar and Anr. . may be usefully cited as follows:
The Magistrate must apply his judicial mind to the materials on which he has to form his judgment and the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding.
Similar is the decision in the State of Karnataka v. L. Muniswamy and Ors. .
7. On an examination of the material on record the Magistrate was entirely justified to hold that there is no ground for proceeding against the opposite-party. Firstly in the first information report no allegation has been made against the opposite-party Even in the statement under Section 164 of the Code of Criminal Procedure which was made after a considerable delay the opposite-party has been given a complete exoneration by the statement that nobody committed sexual intercourse before or after the commission of the alleged act by Mobin Ansari. It is only in the third 164 statement which on the fact of it was extremely belated that some act of sexual intercourse has been alleged against the opposite-party and even that does not make out a case of sexual intercourse within the scope of Section 376 of the Indian Penal Code. It should not be forgotten that admittedly the age of the informant was over 18 years and even if the action of the opposite-party is taken to be true that will not make out an offence at all. In fact, no material was brought to the notice of this Court from the diary or from those statements which would incriminate the opposite-party. I have no hesitation in saying that even taking the entire prosecution case to be correct, no offence can be said to have been committed by the opposite-party and, therefore, there was no sufficient reason for the Magistrate to proceed against him and the opposite-party was rightly discharged. I have, therefore, no hesitation in holding that the order of the Magistrate, as far as it concerns this opposite-party, is free from any infirmity in law of fact and dismissing the Criminal Revision application,
8. Coming to the case of Dr. Jamal in the Criminal Miscellaneous application, I have no hesitation in holding that from the prosecution case itself it does not appear that any offence has been committed by the petitioner. The ground on which the prosecution can. be quashed is well settled by a decision of the Supreme Court reported in Smt. Nagauwa v. Veeranna Shivalingappa Konjalgi and Ors. . The action attributed to the petitioner is only of taking the informant to the hospital for an abortion which was wholly accomplished in two stages. It is apparent that it was done at the instance and with the active consent of the informant herself. In fact what the petitioner did was to take the informant to the Kisko hospital without being in any way connected with any offence. It was only in the 2nd 164 statement that a fee-fee attempt was made to rope this petitioner by saying that he also made unsuccessful attempt to have sexual intercourse offence under Section 376. In that view of the matter, I failed to understand how Section 3l3 or 201 IPC, becomes applicable. I have, therefore, no hesitation in allowing this application and quashing the prosecution. Even within the limited scope of Section 209, the Magistrate should have found that no case has been made out justifying the commitment of the petitioner. In fact, there was no sufficient ground to proceed against him even at the stage of issue of processes. The application, there fore, is allowed and the prosecution is quashed.
9. Before I part with this judgment I have no hesitation in holding that the entire prosecution seems to have been created by some interested persons for motives entirely ulterior. Firstly, the F. I. R. was lodged after two months, roping in one person Mobin Ansari only which has been followed by subsequent 164 statement until more persons were roped in. The police, in my view, should have been more careful in submitting the final form charge-sheet in such a case.
10. In the result, the Criminal Revision is dismissed and the Criminal Miscellaneous is allowed as indicated above.