Patna High Court
Ram Prasad Singh vs Uday Shankar Prasad on 25 February, 2000
Equivalent citations: 2001CRILJ3033
ORDER Indu Prabha Singh, J.
1. This is an application in revision under Sections 397, 398 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 7-12-1994 passed by Shri Shyam Badan Singh, Chief Judicial Magistrate, Nalandaat Biharsharif in Complaint Case No. 311-C of 1994 whereby he dismissed the petition of complainant under Section 203 of the Code.
2. From the record it appears that the petitioner; as a complainant had filed a complaint petition on 16-7-1994 in the Court of the Chief Judicial Magistrate, Nalanda at Biharsharif against opposite party and six others armed police personnel for their prosecution under Sections 323, 395, 457 read with Section 34 of the Indian Penal Code. In the complaint petition it was alleged that in the night between the 14th and 15th day of July, 1994 while the complainant was away from his house opposite party No. 2 along with six armed police constables came to his house and asked his son Sashi Pal Keshri (P.W. 1) to open the door. He also started hurling abuses on him. When P.W. 1 did not open the door the accused persons started pushing and dashing against it and ultimately P.W. 1 had to open the door. As soon as the door was opened the accused persons including the present opposite party entered into the house. He disclosed his identity that he is the S.I. of Police, Rahul Police Station. All the accused persons enquired from P.W. 1 as to where the licensed rifle of the petitioner was kept. P.W. 1 informed them that it was kept in a Almirah whose key was with his father (petitioner). On this under the orders of the opposite party, the accused persons broke open the lock of the Almirah and took away the rifle without giving any receipt for the same and without disclosing any reason for doing so. On protest. P.W. 1 was abused and assaulted by the opposite party. Thereafter, the accused entered Into the room of the wife of the present petitioner broken open the lock of the boxes and took away the ornaments, cash and clothes valued at about Rs. 20,000-25,000/-.
3. When the present petitioner returned back to his house on 16-7-1994 at about 10 a.m. his son (P.W. 1) narrated the entire incident to him. The petitioner went to Superintendent of Police, Nalanda to complain but he was threatened that he will be put behind the bars since he was lodging the case against a Police Officer. Out of fear the petitioner returned back and filed a complaint petition before the Chief Judicial Magistrate on 16-7-1994 on which he was examined on solemn affirmation. The learned Chief Judicial Magistrate kept this case in his file for an enquiry under Section 202 of the Code. Four witnesses (P.Ws. 1 to 4) were examined before him on behalf of the petitioner in course of the enquiry under Section 202 of the Code. All of them supported the case of the petitioner. From their evidence as also from the statement of the complainant on solemn affirmation the entire occurrence as alleged stood fully proved and strong prima facie case was made out against the opposite party. The Enquiring Officer Shri S.B. Singh, Chief Judicial Magistrate had never called for any report from the Superintendent of Police, Nalanda nor the Superintendent of Police had any occasion to send any such uncalled for report to him in connection with this case. The learned Chief Judicial Magistrate has, however, by his impugned order dismissed the complaint petition taking absolutely an illegal view of the matter and wrongly relying and referring to a so-called report of the Superintendent of Police, Nalanda which was neither called for nor the Superintendent of Police had any occasion to send the same. The learned Chief Judicial Magistrate had even gone to the extent of disbelieving the evidence of P.Ws. 1 to 4 and in fact he held a mini trial which is not within the scope of an enquiry under Section 202 of the Code. The impugned order is based on extraneous matters like the report of the Superintendent of Police which was absolutely uncalled for and which could not have been taken into account while passing an order under Section 203 of the Code. The learned Chief Judicial Magistrate has gone to the extent of critically examining the evidence of P.Ws. 1 and 4 and wrongly disbelieving the same. On these grounds it has been contended that the impugned order be quashed and further enquiry be ordered.
4. I have heard the parties in detail. On behalf of the petitioner it has seriously been contended before me that the impugned order could not have been passed under Section 203 of the Code since the learned Magistrate has transgressed the limitations imposed by this section and has taken extraneous matters into consideration while passing the impugned order. The learned counsel appearing on behalf of the opposite party has challenged these contentions. It was his submission that the impugned order is fully justified and legal and does not warrant any interference. In view of these submissions of the parties it has become necessary for me to examine the scope of the enquiry under Section 202 of the Code as also the grounds on which an order under Section 203 of the Code can be passed.
5. Section 202 of the Code relates to the postponement of issue of process in a case in which a complaint is filed before the Magistrate. It provides that in proper case the Magistrate empowered to take cognizance in the case or to whom the case has been transferred under Section 192 of the Code may postpone the issue of process against the accused and either enquire into the case himself or directed investigation to be made by a Police Officer or by any other person as he may think fit, for the purpose of deciding whether or not there whether or not there is sufficient ground for proceeding (emphasis supplied). Sub-section (2) of Secttion 202 of the Code runs as follows :-
(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
So far as Section 203 of the Code is concerned it relates to the dismissal of the complaint. It provides that (i) after considering the statement on oath (if any) of the complainant (ii) and of the witnesses and (iii) the result of the inquiry or investigation (if any) under Section 202, if the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and in every such case he shall briefly record his reasons for so doing.
6. It may be stated here that Section 202 of the Code has undergone certain changes in the present Code which were earlier not there in the old Code of 1898. The first change to be noted in this connection is in the concluding portion of Section 202(1) of the Code. Earlier for the words "for the purpose of deciding whether or not there is sufficient ground for proceeding" occurring in the new Code in the old Code of 1898 the following words had occurred "for the purpose of ascertaining the truth or falsehood of the complaint." I am making special reference to this amendment since I will try to find out the difference between the two at a subsequent stage. In this connection it may be stated here that the law on the point as to what is the true scope of an enquiry under Section 202 of the Code has been well settled by various decisions of the Hon'ble Supreme Court. I will firstly refer to the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi AIR 1976 SC 1947 : 1976 Cri LJ 1533 In this case it has been held by the Hon'ble Supreme Court that the scope of the enquiry under Section 202 of the Code is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (i) on the materials placed by the complainant before the Court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It was also held that in fact, in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. It has further been held in this decision that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint and the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not in the province of the Magistrate at this stage to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is very limited one. Further the Hon'ble Supreme Court has held that it was only in the four cases mentioned in this judgment that the order of the Magistrate issuing process against the accused can be quashed or set aside. These four cases are the following, namely (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; or (2) where the allegations made in the complaint petition are patently absurd and inherently improbable; or (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary; or (4) where the complaint suffers from fundamental legal defects, such as want of sanction etc. This judgment is a land mark judgment for deciding the true scope of an enquiry under Section 202 of the Code. The occurrence in this case was dated 19th July, 1973 when the new Code had not come into force.
7. In this decision the Hon'ble Supreme Court has referred to the decisions in the case of Vadilal Panchal v. Dattatrya Dulaji AIR 1960 SC 1113: (1960 Cri LJ 1499 and also to the case of Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430 : 1963 (2) Cri LJ 397. Both these two cases were also under the old Code in which; as pointed out above in the concluding portion of Section 202(1) of the old Code the following words occurred "for the purpose of ascertaining the truth or falsehood of the complaint." As pointed out above in the present Code these words have been substituted by the following "for the purpose of deciding whether or not there is sufficient ground for proceeding." It is clear from the difference of the wordings of these two provisions that while the scope of enquiry under the old Code was somewhat vide under the present Code the scope of enquiry has been made extremely limited. This change in this section has been made as per the 41st report of the law commission and the view taken by me with respect to the difference between two provisions also finds support from the case of Dr. S.S. Khanna v. Chief Secretary, Patna AIR 1983 SC 595: 1983 Cri LJ 1044.
8. From these decisions as also the settled law on the subject it will appear that the object of an enquiry under Section202 of the Code is to see where there is prima facie case for issuing process against the accused as has been held in the case of Balraj Khanna v. Moti Ram (1971) 3 SCC 399 : AIR 1971 SC 1389 : 1971 Cri LJ 1110. The enquiry under Section 202 of the Code, therefore, cannot be converted into a trial to see where the accused is guilty as has been held in the above mentioned cases as also in the case of Smt. Nagawwa 1976 Cri LJ 1533 (supra). In the case of Smt. Nagawwa (supra) it has also been held that the question namely where there is prima facie case for the issue of process is to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. The above views also finds support from the case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876 : 1962 (1) Cri LJ 770. This was a three-Judge Bench of the Hon'ble Supreme Court and the views expressed by this Bench have to be followed. As a matter of fact even before this case another three-Judges Bench in the case of Vadilal Panchal 1960 Cri LJ 1499 (supra) on which reliance has also been placed in the case of Smt. Nagawwa (supra) laid down the law on the subject clearly as noticed above.
9. From the facts of the present case it would appear that the allegations made in the complaint petition were also for an offence under Section 395 of the Indian Penal Code which is exclusively triable by the Court of Session. It further appears that the learned Chief Judicial Magistrate after examining the complainant on solemn affirmation has decided to hold this enquiry himself under Section 202 of the Code. The scope of an enquiry under this provision of law has already been mentioned above as determined by the Hon'ble Supreme Court from time to time. Now the question that may arise in this connection is how far the learned Chief Judicial Magistrate has confined himself to the scope of enquiry as per the guidelines given by the Hon'ble Supreme Court in the decisions noted above? Before the learned Chief Judicial Magistrate there was the statement of the complainant on solemn affirmation, there was also the evidence of four witnesses examined on behalf of the complainant. From the impugned order it appears that the learned Magistrate was conscious of the fact that at this stage he was only to find out whether any prima facie case was made out against the opposite party or not. It was submitted before him on behalf of the petitioner that the moment certain witnesses were examined the hands of the Court were fettered and the Court was bound to issue process against the accused. The learned Chief Judicial Magistrate has observed that to his mind the submission of the learned counsel is partly correct. It may be mentioned here that he has not numbered his paragraphs to which a reference may be easily made. Further he has observed that no one could dispute the fact that presently he has to see only whether there is a prima facie case or not. He has also observed in this paragraph (which appears to be paragraph No. 6) that at this stage he has only to see whether there is a prima facie case or not and he cannot scan the evidence in the manner in which it could be done at the trial stage. He has, however, departed from this stand stating that it will not mean that the Court is to accept the evidence, if 3-4 persons have come and stated that the occurrence had taken place. Probably the learned Chief Judicial Magistrate has missed the distinction; between finding out of a prima facie case and recording a finding of guilt on trial; while discussing the matter. Once he was of the view that a prima facie case was made out against the opposite party and he was conscious of the fact that at this stage it was not for him to scan and critically examine the evidence on record he should have no difficulty in issuing the process against opposite party. However, subsequently in paragraph No. 7 (as counted by me) he has referred to the observation made by Hon'ble Mr. Justice Cardozo. He was not mentioned to which Hon'ble Court this Hon'ble Justice belonged and he has remained blissfully vague on this point. Further, in the concluding portion of the next paragraph he has mentioned that he posed a question to the learned counsel for the petitioner whether these accused persons had committed any other dacoity or not which was replied in negative. This approach of the learned Chief Judicial Magistrate, to say the least, is unwarranted inasmuch as it was not necessary for the accused to have committed another dacoity without which they could not be hauled up for trial for having committed the first dacoity. Further he has observed that it appears that Ram Prasad Singh had intentionally filed the complaint petition to foist the allegation against the accused persons. It is not clear on what basis he has made this observation since at this stage; as held in the case of Smt. Nagawwa 1976 Cri LJ 1533 (supra) the scope of the enquiry under Section 202 of the Code is extremely limited and it has to be decided purely from the point of view of the complainant without at all adverting to the defence that accused may have. Further he has observed that the possibility of implicating the accused persons in the facts and circumstances of the case cannot be ruled out. It is not clear from where the learned Chief Judicial Magistrate had rushed to any such conclusion. The witnesses were examined before him on oath and they had supported the case of the prosecution. Now, under this circumstance, could it be said at this stage that there was the possibility of false implication of the accused persons in the facts and circumstances of the case? In last but one paragraph the learned Chief Judicial Magistrate has gone to the extent of observing that to him it appeared that the complainant had managed four of the witnesses in the present case and, therefore, the evidence inherently appears to be unworthy of credit. It is really surprising to note from where and on what basis the learned Chief Judicial Magistrate has come to any such conclusion. The whole tenor of this order is clearly tilted in favour of opposite party who is a Police Officer even when this opposite party was not present and this enquiry was not being held in his presence. The framers of our Constitution, in order to secure the separation of the executive from the judiciary had taken the precaution of mentioning in Article 50 of the Constitution that the State shall take steps to see that the two would be separate. This was done with the sole object of ensuring that the judiciary is left uninfluenced by any action by the Executive. In the present case, unfortunately it appears that this Article 50 of the Constitution has given a goby by a senior Judicial Officer of the rank of the Chief Judicial Magistrate. Then what can be said to other Judicial Magistrates who are less experienced than him?
10. I will lastly refer to the fact that in the impugned order the learned Chief Judicial Magistrate has observed that he has called for a report regarding this rifle from the Superintendent of Police, Nalanda. He has referred to the report dated 28-11-1994 of Sri K.B. Singh the Superintendent of Police, Nalanda in his order to the effect that the officer-in-charge of Rahui Police Station had asked the complainant to deposit the licenced rifle. Did he mean, by making this observation; that since Superintendent of Police, Nalanda had asked the officer-in-charge, Rahui police to direct the complainant to deposit the licenced rifle it gave him complete freedom and license to take the law in his own hands; to force his entry in the house of the complainant at about 10 p.m. in the night even during his absence; to break open his Almirah and boxes and to take away his licenced rifle and ornaments etc. even without granting a receipt specially when there is nothing on the record to show that there was any allegation with respect to this rifle or to its improper use by the complainant? Still the learned Chief Judicial Magistrate has not only referred to this report of Superintendent of Police, Nalanda but has held that this action of officer-in-charge of Rahui Police under the orders of the Superintendent of Police, Nalanda was justified. The house of a citizen, howsoever, lowly he may be; is his own castle as has been repeatedly held in different decisions. Nobody, not even the Superintendent of Police can be allowed to secure unlawful entry in the same unless he is armed with some lawful order or lawful authority in his favour. Still the learned Chief Judicial Magistrate has thrown all these circumstances to the winds for the reasons best known to him.
11. I have already noted above that the scope of an enquiry under Section 202 of the Code is extremely limited and at this stage the accused has not no locus standi. The order under Section 202 of the Code is to be passed without at all adverting to any defence that the accused may take. However, from the record of the present case it appears that in his order dated 6-10-1994 the learned Chief Judicial Magistrate has observed as follows: "Also send a copy of this order to the Superintendent of Police, Nalanda so that he may also report regarding the alleged rifle that whether it has been recovered so far or still the same has not been recovered or the same is involved any way in any other case.
12. As stated above calling for any such report was completely uncalled for since the law does not permit the same. Nor was the learned Magistrate concerned in this case with any improper use of this rifle in any other case. However, Sri K.B. Singh the Superintendent of Police, Nalanda has submitted a report a reading of which makes it, quite clear that he has not confined himself only to the enquiry made from him as per this order of the learned Chief Judicial Magistrate. He has entered into the entire facts and circumstances of this case and has drawn his own conclusions in the matter though actually he was asked to report only whether this rifle was involved in any other case. Taking an opportunity provided by this order of the learned Chief Judicial Magistrate the Superintendent of Police has entered into the merits of the entire facts and circumstances of this case and has given his own opinion in the matter and has superimposed his own findings on the facts alleged in the complaint petition. It is really surprising how could the learned Chief Judicial Magistrate call for any such report giving an opportunity to the Superintendent of Police, Nalanda to make all sorts of observation in his letter specially when the accused in this case was nobody else then the Officer In-charge of Rahui Police who was in direct administrative control of Superintendent of Police. The Hon'ble Supreme Court as also the Hon'ble High Courts have times without number cautioned the subordinate Judicial Officers from calling for a report from a Police Officer specially when another Police Officer has been made an accused. On the other hand, the Courts have observed that the complaint against the police should be handled with greatest care and in any case it was improper for the Court to call for the report from the accused Police Officer or his superior as has been held in the case of Vikyamal AIR 1971 Gauhati 128 (sic) and also in the case of Shama, (1920) 21 Cri LJ 649. It is not clear that under what circumstances the learned Chief Judicial Magistrate called for a report from the Superintendent of Police, Nalanda thereby giving him an opportunity to express his opinions on the entire case without confining himself to the order calling for the report by the Court. The matter was subjudice before the Court arid nobody was entitled to express any uncalled for opinion about the truth or otherwise of those allegations. Instead of asking Sri. K.B. Singh Superintendent of Police to show cause why he expressed his uncalled for opinions on the merits of this case which was subjudice and why he should not be punished for contempt of Court; the learned Chief Judicial Magistrate had merrily relied on this report and has passed the impugned order. This appears to be highly improper.
13. So far as Section 203 of the Code is concerned it has already been pointed out above that the order dismissing the complaint petition could only be passed in the (i) the statement on oath of the complainant and the witnesses and (ii) result of the enquiry under Section 202 of the Code. Here I find that the complainant and his witnesses have fully supported the case of the prosecution. The learned Magistrate should have confined himself to Section 202(2) of the Code under which he could not have called for any report from anybody much less from the Superintendent of Police, Nalanda. Instead of passing the normal and routine order in the matter issuing summons to the opposite party he has made out a ground for dismissal of the complaint petition on extraneous materials and also on wrong assessment of the evidence on record. Under the aforesaid circumstances the impugned order cannot be sustained.
14. In the result, this petition is allowed and the impugned order is quashed. The learned Chief Judicial Magistrate is directed to hold further enquiry into the matter as required under law under Section 398 of the Code and to pass the necessary orders putting the opposite party on trial.