Patna High Court
R.K. Khanna Etc. vs State Of Bihar And Ors. on 19 February, 1988
Equivalent citations: 1988(36)BLJR481
JUDGMENT S.N. Jha, J.
1. Both these applications were heard together as they arise out of the same proceeding and they are being disposed of by this common judgment with the consent of the parties.
2. Both these applications have been filed to quash the entire criminal proceeding in G.R. Case No. 255/80 corresponding to Gamaria P. S. Case No. 4 (5)/80 including the order dated 20-12-1182 whereby the learned Magistrate has taken cognizance against the petitioners under Sections 364/ 109 and 302/120-B of the Indian Penal Code (in short "the Penal Code") and issued summons against them.
Cr. Misc. No. 256/83 (R) :
3. The short facts which led to the filing of these applications are that a first information report was lodged by one B.K., Mukherjee on 16-5-1980 before the Officer Incharge, Gamaria Police Station alleging, Inter alia, that the deceased Partosh Chandra Chakraborty who was married to his sister some 7 to 8 years back, was an employee of M/s. Usha Alloys and Steels Limited and was working as Welder-cum-Setter in the said company. On 9-5-1980 in the morning his younger brother informed him that the said Paritosh Chandra Chakraborty had gone to his night shift duty of 7-5-1980 but he did not reach the company and his whereabout is not known. It appears that some body had kidnapped him. On this information, the informant came to the residence of his brother-in-law and found his sister weeping. His sister informed him that in the night of 7-5-1980 at about 8 p.m. one Sbri Vijai Kumar Jha (B. S. Jha) who is Accounts Clerk in the said company and lives in her neighbourhood, came to her house and took the bicycle of her husband for some urgent work on the assurance that he would come back very soon, but, Sri Jha did not return earlier and as such her husband stated for duty on foot at about 9.30 p. m. She further informed him that her husband had strained relationship with Jha Sangh Union and management of the said company.
4. The further case of the informant is that he began to search his brother-in-law and in course of search, he learnt from other workers that the Jha Sangh union was the pocket union of the company end the the deceased used to raise voice against the said union and the management, who were exploiting the workers and used to deduct the wages against the wishes of the workers as subscription for its pocket union. The further case is that the said Paritosh Chandra Chakraborty alongwith other workers had gone to R. K. Khanna, petitioner No. 1 in Cr. Misc. No. 256/ 1983 (R) and protested against illegal deduction of wages. At this, R. K. Khanna told him not to become leader and do his duty properly. The informant further came to know that R. K. Khanna had threatened his brother-in-law and the informant has got suspicion that the men of the management and the union might have killed his brother-in-law after kidnapping him. A certified copy of the first information report is Annexure-1 in both these applications.
5. The Police after thorough investigation of the case submitted a finul report on 20-8-1981 mentioning therein that the petitioners had been falsely implicated in the case, A copy of the final report is Annexure-2 in both the applications.
6. It appears that on 30-10-1981, a petition was filed by opposite, party No. 2 the wife of the deceased alongwith a copy of the tape recorded statement of one of the accused Prem Nath Mahto stating that the Police has done nothing tangible uptil now and has not examined all the witnesses though there are enough materials to prosecute the accused pefsons. A cop of the said petition is Annexure-3 to these applications.
7. Again on 4-11-1981, another petition was filed by opposite-party No. 2 praying therein not to accept the final report submitted by the police and treat the petition filed on 30-10-1981 alongwith this petition as a protest petition and cognizance be taken against the petitioners. A certified copy of this petition has also been annexed as Annexure-4 to both the applications.
8. On receipt of the final report and the protest petition, the learned Magistrate by his order, dated 14-6-1982 held that he would hold inquiry before passing any order and directed the complainant (opposite-party No. 2) to be present in the court on 15-7-1983 for her examination on solemn affirmation and for inquiry. On 16-8-1982 the learned Magistrate examined opposite-party No. 2 on solemn affirmation and also examined one Ratna Kumar Malakar and adjourned the case for further inquiry for 26-8-1982.
9. It further appear that the case was adjourned to several dates but no other witness could be produced by opposite-party No. 2. The learned Magistrate by the impugned order dated 20-12-1982 took cognizance against the petitioners for the offence under Section 365/109 and 302/120-B of the Penal Code, as stated above.
10. Mr. Braj Kishoro Prasad, learned Counsel appearing on behalf of the petitioners has challenged the impugned order of cognizance on the ground that the learned Magistrate has violated the proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure (in short 'the Code'). Therefore, the impugned order is fit to be quashed. It was further contended that the complaint petition does not make out any offence and there is complete want of any material in isupport of the impugned order.
11. To appreciate the contention of Mr. Prasad, It is better to quote Section 202 of the Code:
(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 person of deciding whether or not there is sufficient ground for proceeding :
Provided that no such direction for investigation shall be made:
(a) where it appesrs to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions ; 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 Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) ...
12. On a plain rending of Sub-section (1) specially the words "may, if he thinks fit", it is manifest that it is entirely within the discretion of the Magistrate whether or not an inquiry under this section should be made or an investigation ordered. A combined reading of Sections 200 to 204 of the Code would show that there is no legal obligation on the part of the Magistrate taking cognizance of an offence to resort to the procedure laid down in Section 202 before dismissing a complaint or issuing process to the accused after cognizance of the offence complained of. The Magistrate can after following the procedure laid down in the Code straightway dismiss the complaint under Section 203 but if he think fit, he may postpone the issue of process and make an inquiry into the case and he has to follow the procedure as laid down in Section 302. It is only when he decides to postpone the issue of the process and to hold an inquiry in an offence which is exclusively triable by the Court of Sessions proviso to Sub-section (2) of Section 302 of the Code will be attracted. Under Sub-section (2), while holding an inquiry, the Magistrate is entitled to record evidence of witnesses on oath if he thinks fit. However, the proviso to Sub-section (2) casts a a duty on the Magistrate to call upon the complainant to produce all his witnesses. But, it is not combent upon the Magistrate to call upon the Magistrate to examine all prosecution witnesses before passing commitment order. The non-examination of all the witnesses on oath will not vitiate the order. It is not mandatory on the part of the Magistrate to examine all the witnesses. Of course, he shall call upon the complainant to produce all his witnesses, If all the witnesses would not be produced by the complainant and only the complainant and some of the witnesses have been examined and if he is satisfied that there is sufficient ground for proceeding, he can take cognizance of the offence. The discretion of examining the complainant and the witnesses, if any, which the court enjoys cannot be circumscribed or denied by making it mandatory upon the Court to examine all the witnesses. Such an approach would be contrary to the statutory provisions of law.
13. There can be no manner of doubt that the proviso in question is entitled to qualify Sub-section (2) to which it is appended and make it obligatory upon the Magistrate to call upon the complainant to produce all his witnesses. In the instant case, the Magistrate called upon the complainant to produce the witnesses but even if the complainant has not produced all his witnesses, that will not render the impugned order illegal.
14. It was vehemently argued that the learned Magistrate without examining all the witnesses as envisaged under proviso to Sub-section (2) of Section 202 of the Code has taken the cognizance of the offence which is illegal and fit to be quashed. It was argued that the case was adjourned to 25-9-1982, 8-10-1982, 22-10-1982, 3-11-1982 and 24-11-1982 but the opposite party could not produce any other witness and the learned Magistrate without applying his judicial mind and without any evidence available on the record, has illegally taken the cognizance. For the reasons stated above, I do not find any substance in this argument. It is manifest that it is not at all mandatory on the part of the Magistrate to examine all the witnesses. Of course, he can call upon the complainant to produce all his witnesses.
15. According to the learned Counsel, there is no evidence available on the record implicating the petitioners in the aforesaid case except one witness, namely, Ratan Kumar Malakar who has not stated anything which may lead to a conclusion that the petitioners had any hands in the aforesaid case.
16. It is now well settled that a Magistrate even after accepting the final report can still take cognizance of offence upon a complaint or protest petition. Mr. Prasad very fairly conceded that he could no longer make any submission against this proposition of law. His main grievance is that without any material, the learned Magistrate has taken the cognizance. From the perusal of the protest petition, it appears that opposite party No. 2 has stated in the petition that her husband had become an eye-sore in the eyes of the management of the said company represented by accused 1 to 6 and its recognized union represented by other accused persons and so they hatched a conspiracy to do a way with his life. According to her statement, as a part of their conspiracy accused B. S. Jha was sent to the residence of the opposite party No. 2 at about 8 p. m. to persuade her husband to lend him his bicycle on the pretext that he had some urgent work and would bring back the bicycle in time but he did not bring back the same in time and after waiting upto 9-25 p. m., the husband of the opposite party No. 2 started on foot for his night duty and thereafter he never returned. It is also mentioned in the petition that it transpired from the statement of one of the accused Prem Nath Matho which was tape recorded by one Sri A. K. Pradhan that accused No. 8 to 11, namely, Jai Narayan Sharma, K 8. Singh, P. K. Bhattacharjee and Mani Kant Jha had murdered the husband of the opposite party in the night of 7/8-5-1980 at a lonely place in the forest in the north of the road at some distance from Saldih village. This statement has also been corroborated by the witness Ratan Kumar Malakar. Ratan Kumar Malakar has also stated on oath that he learnt from A. K. Pradhan that Jai Narayan Sharma, P.K. Bhattacharjae, K. G. Singh, Mani Kant Jha and Prem Nath Mahto had killed the deceased on 7-5-1980 and buried his dead body.
17. The scope of the inquiry under Section 202 is extremely limited i.e., only to the ascertainment of the truth and falsehood of the allegations made in the complaint on the materials placed by the complainant before the Court for the purpose of finding out whether a prima facta case for instance process has been made out or not.
18. Mr. Prasad has drawn my attention to a decision in the case of Smt, Nagawwa v. Veeranna Shivatingappa Konjaigi and Ors. . In this case, the Supreme Court has laid down that in the following cases, an order of the Magistrate issuing process against the accused can be quashed or set aside:
(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
According to Mr. Prasad, his case comes in category (1) and (3)-According to him, the allegations made in the complaint or the statement of witness recorded in support of the same does not make out any case against the accused-petitioners if taken at their face value. But in any view from the statement of the complainant and the statement of witness, a prima facie case has been made out atleast against R. K. Khanna, petitioner No. 1, P. K. Bhattacharjee petitioner No. 2, K. B, Singh, petitioner No. 4, Jai Narayan Sharma, petitioner No. 6, B.S. Jha, petitioner No. 5, Mani Kant Jha and Prem Nath Mahto (both aot petitioners before this Court),
19. Mr. Prasad also contended that the statement of one of the co-accused Prem Nath Mahto which was tape recorded and attached with the protest petition is not admissible in law and it cannot be taken into considaration while taking cognizance. It is no doubt, true that a confession of co-accused may not be treated as substantive evidence but can only be used to lend assurance to other evidence against the accused. In dealing with a criminal case where the prosecution relies upon a confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against soch accused person. The tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties and in the absence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon but all these questions will not be considered by this court at this stage under its inherent jurisdiction under Section 482 of the Code.
20. The only question at present is to be decided as to whether the impugned order suffers from any legal infirmity so as to warrant interference by this Court. On a careful consideration of the facts and circumstances of this case, I am of the view that the discretion exercised by the Magistrate in issuing process is not capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant and inadmissible.
21. So far as the case of R.K. Khanna, petitioner No. 1, P. K. Bhattacharjee, petitioner No. 2, Kunj Behari Singh, petitioner No. 4, Vijai Shankar Jha petitioner No. 5 and Jai Narayan Sharma petitioner No. 6 are concerned, in my opinion, the Magistrate has rightly taken cognizance against them and it is not open to this Court to consider at this stage the sufficiency or otherwise of the material on record for this purpose. As for the merits of the case, suffice it to remark that it is for the Sessions Judge to consider after hearing the parties as contemplated in Section 226 of the Code whether or not there is sufficient ground for proceeding and then pass orders under Section 227 discharging the accused or framing the charge against the accused under Section 228 of the Code. Accordingly the case of R. K. Khanna, petitioner No. 1, P. K. Bhattacharjee, petitioner No. 2, Kunj Behari Singh, petitioner No. 1, Vijai Shankar Jha, petitioner No. 5 and Jai Narayan Sharma, petitioner No. 6 are dismissed because I do not find any legal infirmity or manifest illegality in the impugned order so far as these petitioners are concerned.
22. So far as the case of D. C. Mahto, petitioner No. 3, Gurdeep Singh, petitioner No. 7 and C. S. Jalan, petitioner No. 8 are concerned, from the materials available on the record, I do not find that any prima facie case has been made out against them. Accordingly the order taking cognizance against them is hereby quashed.
23. In the result, Cr. Misc. No. 256/1983 (R) is partly allowed and partly dismissed.
Cr. Misc. No. 258/1988 (R).
24. So far as the case of the sole petitioner in this case is concerned, from the materials available on the record, I find that the allegations made in the complaint or the statement of the witness recorded in support of the same, taken at their face value make out absolutely no case again-t this petitioner and, therefore, the cognizance taken against him is accordingly quashed. It is well settled that if no prima facie case has been made out against the accused, the proceeding may be quashed to prevent abuse of the process of the Court and to secure the ends of justice,
25. For the reasons stated above, the application is allowed.
26. To sum up, Cr. Misc. No. 256/1983 CR) is partly allowed and partly dismissed and Cr. Misc. No. 258/1988 (R) is allowed.