Himachal Pradesh High Court
Prem Kumar vs Nehar Singh And Anr. on 26 July, 1994
Equivalent citations: 1995CRILJ2517
JUDGMENT D.P. Sood, J.
1. By this petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, the petitioner seeks to invoke the inherent jurisdiction of this Court to quash criminal proceedings pending in the Court of Sub-Divisional Judicial Magistrate, Rohru in case No. 32/2 of the 1989 titled Shri Nehar Singh v. Shri Jehar Singh.
2. The petitioner is a journalist. Earlier he remained posted as Resident Editor of Indi an Express, Chandigarh. A news-item was published in the Indian Express, Chandigarh Edition, on December 17,1988. The petitioner submits that the news-item was sent by the Shimla Correspondence of the newspaper, Shri N. D. Sharma, and related to a letter written by one Shri Jehar Singh to the Chief Minister and the Prime Minister, copy whereof was shown by Shri Vijay Mankotia, a member of the Himachal Pradesh Legislative Assembly. This news pertained to the illicit felling of trees. His case is that the newsitem was published in good faith on a matter of public interest without ill-will or malice towards the complainant/respondent which was raised by a responsible legislator; that he had no intention to defame him (respondent) which fact is evident that the (petitioner) promptly published the contradiction in the newspaper at the behest of the respondent. However, the respondent initiated proceedings uncler Section 500 of the Indian Penal Code in the Court of Sub-Divisional Judicial Magistrate, Rohru. According to the petitioner, neither any case is made out against him on the alleged facts nor he was a party to any conspiracy nor the Judicial Magistrate, who took the cognizance of the complaint, had jurisdiction to do so, since such a complaint could be tried by a judicial Magistrate, Ist Class. The Judicial Magistrate, who was not Judicial Magistrate, Ist Class at the relevant lime, had no jurisdiction to deal with the matter, therefore, the proceedings stand vitiated.
3. Further case of the petitioner is that on transfer, the transferee Magistrate neither examined the complainant nor his witnesses, but directed the issuance of process for the appearance of the petitioner and others without comforming to the procedure laid down under Section 200 of the Code of Criminal Procedure (hereinafter shortly referred as the 'Code') and without due application of mind thereto which has resulted in immense injustice to the petitioner. Finally, it is also stated that no case on the facts and circumstances detailed in the complaint under Section 500 of the Indian Penal Code is made out againsl the petitioner.
4. Shri Ravi Bakshi, learned counsel appearing on behalf of the petitioner in addition to make an attempt to canvass the facts alleged, raised certain legal arguments. The main legal arguments advanced by him are :-
(i) That Judicial Magistrate, IInd Class, had no power to entertain or to take cognizance of the case and resultantly to record the statement on oath of the complainant or his witnesses as envisaged under Section 200 of the Code;
(ii) That though Sub-Divisional Judicial Magistrate, Ist Class was empowered to take cognizance of the case, but he could not act on the preliminary evidence recorded by a Judicial Magistrate, who neither had jurisdiction to entertain the case nor to take cognizance thereof.
Reliance has been placed on the decision of Ram Nath Goenka v. Ram Gopal Sharma, 1991 (1) SLJ 668.
5. So far as the first point is concerned, it would be appropriate to advert to legal provisions with respect to the nature, scope and ambit of the powers of the Magistrate under Chapter XV and XVI of the Code. Section 190, pertains to taking cognizance of offences by Magistrate. It lays down as under :-
" 190. Cognizance of offences by Magistrate.-
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offence as are within his competence to inquire into or try."
6. A close perusal of this provision indicates that the Court competent to try the same has to take cognizance of the offence before initiation of the proceedings can be contemplated. In other words, an offence is taken cognizance of by a Magistrate, inter alia, upon receiving a complaint of facts which constitute such an offence. No formal action or action of any kind whatsoever is necessary in order to take cognizance of an offence. The moment Court competent to try the same applies its mind to the offence with a view to initiate judicial proceedings against the offender in respect of the offence, the said Court is said to have taken cognizance thereof. It also reveals that the Court takes cognizance of the offence and not the offender.
7. A consepectus of Sections 190(l)(a), 200, 201, 202, 203 and 204 makes it crystal clear that these provisions read together constitute an integrated procedure to be followed by a Magistrate taking cognizance of an offence.
8. According to Section 200 of the Code, a Magistrate taking cognizance of an offence is required to examine upon oath the complainant and the witnesses, if any, and to record the substance of such examination except in cases covered by the provisos thereto. The Magistrate may in his judicial discretion also hold an inquiry or investigation as provided in Section 202 of the Code "for the purposes of deciding whether or not there is sufficient ground for proceeding" and "if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) under Section 202, the Magistrate" is of opinion "that there is" no sufficient ground "for proceeding, he shall dismiss the complaint under Section 203 of the Code and in every such case, he shall briefly record his reasons for so doing and "if in the opinion of the Magistrate, there is sufficient.ground for proceeding" he shall issue summons in a summons case and may issue a warrant, or, in his discretion, a summons in a warrant case, for causing the accused to be brought or to appear for trial of the offence.
9. Section 203 and 204, are no doubt worded in a subjective language but the legislature has made enough precautions and provided sufficient safe guards against arbitrary exercise of powers by the Magistrate under Section 203 and 204 of the Code. The expression "after considering the statement" and "shall briefly record his reasons" occuring in Section 203 of the Code conjointly constitute a strong in built safeguard against arbitrary dismissal of a complaint. It is evident that the Magistrate is required to form his opinion after considering the statements etc. and record reasons for dismissal of a complaint.
10. It is thus evident from the conjoint reading of Sections 200 to 204 of the Code that it provides a complete procedure for proceeding against a person accused of an offence and the said procedure is mandatory in nature.
11. Now, looking to the record of the case, it is quite clear that the complaint was preferred before the Judicial Magistrate, IInd Class, Rohru, who recorded the statements of not only of the complainant, but also his witnesses on 2-5-1989 and adjourned the case to 24-5-1989 when arguments were heard and the case was adjourned to 18-7-1989 for orders. Record further shows that on the adjourned date, Judicial Magistrate, IInd Class, Rohru finding that the case was triable by Magistrate, Ist Class, referred it to the Sessions Judge, Shimla, who in turn, marked the case to Sub-Divisional Judicial Magistrate, Rohru, who was Magistrate, 1st Class. The transferee Magistrate knowing fully well that Judicial Magistrate, Ilnd Class had no power to entertain or take cognizance of the complaint or to record the preliminary evidence as envisaged under Section 200 of the Code, did not conform to the mandatory provisions contained in Chapter XI of the Code. In fact, it was incumbent upon him to have proceeded right from the beginning, namely, by recording the examination of the complainant and his witness(s), because whatever had happened before that Court, was non-est, since the Magistrate was lacking jurisdiction to deal with the complaint. The point in question is squarely covered by the decision of my learned brother Bhawani Singh, J. in the case of Ram Nath Goenka (supra). I am in respectful agreement with the reasoning given therein.
12. Kanwar Kuldeep Singh, learned counsel appearing on behalf of the respondent has made and abbortive attempt to justify the impugned order by relying upon Section 201 read with Section 460(e) of the Code. He has also made an attempt to distinguish the case of Ram Nath- Goenka (supra) by submitting that provisions of Section 201 and 460(e) of the Code were neither argued nor brought to the notice of the learned Court nor they were considered. Reliance has also been placed by him on the observation made in the case of Purshottam v. State of Kutch, and Hareram v. Tikaram, .
13. Submissions of Kanwar Kuldeep Singh, prima-facie appear to have substantial force, but when examined deeply, it is found to be meritless. Acording to Section 201 of the Code, incompetence of a Magistrate to take cognizance may arise for want of power to receive complaint, or of local jurisdiction or incompetency to try (Schedule-I, Col. 6 & C). In such a case, the Magistrate concerned is duty-bound to return the complaint for presentation to the proper Court with an endorsement. Section 460 of the Code deals with irregularities which do not vitiate proceedings. It reads as under :-
"460. Irregularities which do not vitiate proceedings.- If any Magistrate not empowered by law to do any of the following things, namely :-
(a) to (d)
(e) to take cognizance of an offence under Clause (a) or Clause (b) of sub-section (1) of Section 190;
(f) to (i) erroneously in good faith does that thing, his proceedings shall not be set aside merely on the , ground of his not being so empowered."
14. Section 460 of the Code corresponds to old Section 529 with some verbal alterations with practically no change. This Section cures the irregulari ties specified in it, if committed by a Magistrate not empowered by law, provided they are committed erroneously in good faith and further that they should not cause a prejudice to the accused.
15. In the instant case, there is no dispute that as per Schedu!e-I relating to classification of offence annexed with the Code, offence under Section 500 of the Indian Penal Code is triable by a Magistrate of the 1st Class. In other words, Magistrate of the Find Class had no jurisdiction to try the case. There is also no dispute that the allegations made in the complaint pertain to the commission of the offence by the accused under Sections 469,500,501,502 and 120- B of the Indian Penal Code which were also triable by a Magistrate of Ist Class as per the allegations made therein. To my mind, Section 460 of the Code deals with acts done by a Magistrate in no way empowered by law to do those acts, it has no reference lo a Magistrate empowered otherwise, but not possessing jurisdiction over the particular offence. In other words, there existed lack of inherent jurisdiction in Judicial Magistrate, IInd Class to deal with the offence in question. It is not a case of absence of territorial jurisdiction. It is also not a case put up by the respondent thai Judicial Magistrate, IInd Class had at any time been empowered to take cognizance under sub section (1) of Section 190 of such offences as are within his competence to enquire into or try. The case of Parshottam Jethanand (supra) relied upon by the learned counsel for the respondent is distinguishable on facts. In that case, the trial Magistrate during the regime of Kutch State used to take cognizance of offences. However, with the application of laws to the merged State of Kutch, Code of Criminal Procedure was applied and by a subsequent notification issued by Chief Commissioner on 14-11-1949, Taluka Magistrates were appointed Sub-Divisional Magistrate under Section 13 of the Code and subsequently the powers of Sub-Divisional Magistrate conferred on such Taluka Magistrates were withdrawn by a notification dated 19th Augul, 1950 published in local gazette dated Ist September. 1950. Despite the defect having been brought to the notice of the trial Magistrate concerned with respect lo his powers to deal with the case, he continued the proceedings taking a judicial decision on the objections so raised that he had the power to take cognizance. This decision was considered lo be a bona fide decision as to the existence of power when objection thereto was taken.
16. This is not so in the instant case inasmuch as Judicial Magistrate of IInd Class by law (the First Schedule annexed to the Code) was not empowered to deal with the case. In other words, there is lack of jurisdiction of the Magistrate in the instant case. The aforesaid authority is. therefore, not applicable to the facts and circumstances of the instant proceedings.
17. The case of Hareram Satpathy (supra) is also distinguishable and the principle laid down therein has no application to the facts and circumstances of the instant case. In the case of Hareram Satpathy, the Sub-Divisional Magistrate took cognizance of the offence on the police report and after taking cognizance of the offence and perusal of the record, he satisfied himself that there were prima facie grounds for issuing process against certain persons not mentioned in the police report. The apex Court held that under Section 190 of the Code, the Magistrate taktes cognizance of an offence and not that of an offender; once he 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, it is his duty to proceed against those persons. In those circumstances, it was observed that the Magistrate could not be said to have exceeded the powers vested in him under law. Thus, the fact are distinct and distinguishable from that of the instant case.
18. As regards the quashing of the entire proceedings, suffice it to state that the Magistrate while conducting inquiry under Chapter XV of the Code is. concerned toconclude whether afterconsidering the statements on oath of the complainant and his winesses or investigation, if any, under Section 202 of the Code, there exists grounds for proceeding against the accused or not ? If the answer is in the negative, then he is bound to dismiss the complaint under Section 203 of the Code by briefly recording his reasons for so doing. In otherwise case, he is bound to follow Section 204 of the Code in its letter and spirit. In other words, as the Magistrate is restricted to find out whether there is a prima-facie case or not for proceeding against the accused and cannot enter into a detailed discussion of the merits or demerits of the case and scope of the revisional jurisdiction is very limited, this Court cannot launch or detail a meticulous examination of the ease on merits and quash the proceedings particularly when it has already been held that whatever had happened before Judicial Magistrate, IInd Class with respect to the recording of statement on oath of the complainant and his witnesses, was non-est. It would not be proper for this Court to go into the merits or demerits of the allegations made in the complaint at this stage and then hold that there existed no sufficient grounds for proceeding against the petitioner.
19. In view of the above discussion, the petition is allowed to the extent that impugned order dated 29-3-1990 is set aside. The case is remanded back to the Court below for proceeding afresh from the stage of the complaint in accordance with law. The petition stands disposed of in terms of the above.