Patna High Court
Rajeshwar Sah vs Lalan Singh And Ors. on 14 May, 1997
Equivalent citations: 1998(1)BLJR192
Author: P.K. Sarin
Bench: P.K. Sarin
JUDGMENT P.K. Sarin, J.
1. This criminal revision application is directed against the order dated 24.1.1991 passed by Chief Judicial Magistrate, Muzaffarpur, in Complaint Case No. 1277 of 1990 dismissing the protest-complaint petition of the petitioner under Section 203 of the Code of Criminal Procedure.
2. It appears that the petitioner had filed a first information report regarding an occurrence which took place in the night of 21st/22nd October, 1989, at about 11.30 P.M. and on such report Hathauri P.S. Case No. 62 of 1989 was registered for the offences under Section 147, 323, 452, 380 and 307 of the Indian Penal Code (hereinafter referred, to as the Code). The allegations in the first information report were that the accused-opposite parties came on the date and time of occurrence and got the shop opened by the father of the petitioner on the pretext that one Ram Bahadur Sharma had died and they wanted to purchase coffin. It was alleged that when the shop was opened the accused entered the shop of the petitioner, they assaulted the father of the petitioner and looted away five bundles of clothes, one radio (Delhi set), one patromax, two torches, two wrist watches and cash rupees four thousand. One Nagendra Sahni was also assaulted and injured in the incident.
3. The Police, after investigation, submitted final form. The petitioner filed protest cum-complaint petition before the Chief Judicial Magistrate and examined himself and two witnesses in support of the protest-cum-complaint petition. The learned Magistrate rejected the said protest-cum-complaint petition on the ground that there was no sufficient evidence to proceed in the matter.
4. It has been contended by the earned Counsel for the petitioner that the learned Magistrate has discarded the evidence led on behalf of the petitioner on the ground that it was at variance with the evidence collected in the case diary. It is contended that such an order of the learned Magistrate was not in accordance with law and the learned Magistrate ought to have considered the evidence which was led by the petitioner in support of his protest-cum-complaint petition.
5. As against it the earned Counsel for the accused opposite parties has contended that the offenses alleged included offense under Section 307 of the Code also which was triable by court of sessions and the complainant ought to have examined all the witnesses in support of the complaint petition. Reference has been made by the earned Counsel for the accused opposite parties to the proviso to Sub-section (2) of Section 202 of the Code wherein it has been laid down 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. Relying on the said proviso the earned Counsel for the accused-opposite parties has contended that all the witnesses named in the complaint ought to have been examined by the complainant in this case and as he has failed to do so the learned Magistrate was justified in dismissing the complaint petition. It is further contended that the learned Magistrate was perfectly justified in looking to the case diary to test the veracity of the statement of the witnesses examined by the complainant.
6. It is well settled that when a protest petition is filed it is to be treated as a complaint and the procedure for the complaint case has to be followed. Therefore, the provisions of Sections 200 to 203 were applicable in such case. The proviso to Sub-section (2) of Section 202 enjoins a duty on the Magistrate to call upon the complainant to produce all his witnesses if it appears to him that the offence complained of is triable exclusively by the court of sessions. In the present case, it is undisputed that the offence alleged in the first information report and in the protest-cum-complaint petition included offence punishable under Section 307 of the Code which was triable exclusively by the court of sessions. In these circumstances, it was the duty of the Magistrate to have called upon the complainant to produce all his witnesses named in the complaint petition. The learned Magistrate does not appear to have complied with the said provision and did not call upon the complainant to produce all his witnesses. The complainant had examined only two witnesses. The learned Magistrate discarded the testimony of those witnesses and also the statement of the complainant on the ground that it was at variance with the evidence collected in the case diary. The learned Magistrate lost sight of the fact that the protest petition or complaint is filed only when the investigation, according to the informant-complainant has not been done impartially and the Investigating Officer acted negligently or in collusion with the accused persons. In those circumstances, the materials collected in the case diary by the Investigating Officer could not have been relied upon to discard the testimony of eye-witnesses examined before the learned Magistrate. It may also be stated that at the stage of consideration of the case to find out prima facie case for issuance of summons the court has only to look to the evidence led before it under Section 202 of the Code of Criminal Procedure and the statement of the complainant and not to any other material. Further, the court has not to weigh the pros and cons of the evidence at that stage and has not to enter into appraisal of evidence like a trial court. The impugned order would show that the learned Magistrate has not confined himself to the evidence led before him under Section 202 of the Code of Criminal Procedure but has made use of the statements recorded in the case diary which was not substantive evidence and was not part of an evidence led under Section 202 of the Code. The impugned order further shows that the learned Magistrate entered, into appreciation of evidence like a trial court and thereby has exceeded his jurisdiction to consider the case in terms of Section 203 or 204 of the Code.
7. In these circumstances, the impugned order suffers from infirmity and cannot be sustained. The criminal revision application is allowed. The impugned order is set aside and the case is remitted to the learned Magistrate, who shall restore it to its number and shall, in accordance with proviso to Sub-section (2) of Section 202 of the Code, call upon the complainant to produce all the witnesses named by him in the complaint and, after examination of such witnesses, the learned Magistrate shall proceed with the case in accordance with law keeping in view the observations made by this Court in this application.