Patna High Court
Jai Mangal Prasad (Mahto) And Ors. vs The State Of Bihar on 12 May, 1988
Equivalent citations: 1989(37)BLJR72
JUDGMENT Bhuvaneshwar Prasad, J.
1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called the 'Code'). It is directed against the order dated 21.10.1982 passed by the Sub-Divisional Judicial Magistrate, Sikarahana (Motihari), in Complaint Suit No. 652 of 1981 holding that after an enquiry made under Section 202 of the Code a prima facie case under Sections 147, 148, 323, 324 and 447 of the Indian Penal Code was made out against the petitioners. He, accordingly, took cognizance of the offence and transferred the case to the Court of Shri P.C. Sah, Judicial Magistrate, 1st Class, Sikarahana (Motihari) for trial. In this petition, a prayer has also been made for quashing the trial ordered to be held in pursuance of the aforesaid order.
2. In this petition, the petitioners have contended that they have come to learn that a false case has been instituted against them by the complainant-opposite party No. 2 before the Sub-Divisional Judicial Magistrate, Sikarahana (Motihari) on 26.9.1981 making out various allegations against them. It was alleged that petitioner No. 1 had given a knife blow on the neck of opposite party No. 2 and rest of the petitioners assaulted the complainant with lathies. It was further alleged that accused Nos. 6 and 7 (who are not the petitioners before this Court) took away stationary goods worth Rs. 350.
3. On 28.9.1981 the complainant was examined on solemn affirmation and an enquiry under Section 202 of the Code was ordered. The witnesses were examined by the Magistrate taking cognizance of the offence and on being satisfied that a prima facie case against the petitioners was made out, he passed the impugned order taking cognizance of the offence.
4. It has been contended that the learned Magistrate has not property evaluated the evidence of the three witnesses examined before him under Section 202 of the Code. Their evidence suffers from the material contradictions and is also otherwise defective. They do not support the ease of the prosecution. In this petition, it has further been pointed out that the evidence of the three witnesses also suffers from the various infirmities mentioned in it. On these grounds, it has been contended that the impugned order as well as the entire criminal proceeding started against the petitioners be quashed.
5. The only point for decision before me, is whether this application is fit to be allowed or not.
6. The impugned order is dated 21.10.1982 which has been passed by the Sub-Divisional Judicial Magistrate Sikarahana (Motihari). From this order, it appears that the learned Magistrate has kept the case in his file for an enquiry under Section 202 of the Code in course of which he has examined three witnesses. It further appears that on the basis of their evidence as also on the basis of the complaint petition and the statement on solemn affirmation of the complainant the learned Magistrate had found that a prima facie case against the petitioners under Sections 147, 148, 323, 324 and 447 of the Indian Penal Code was made out. Accordingly, he took cognizance of the offence and transferred the case for disposal to the Court of another Magistrate.
7. The learned counsel, appearing on behalf of the petitioners, has seriously contended before me that the impugned order suffers from the various defects and, therefore, it cannot be sustained. At the out set, he has taken pains to show that the evidence of three witnesses suffers from the material contradictions and is also not reliable and, therefore, the learned Magistrate should not have found that a prima facie case against the petitioners was made out. In the petition also he has referred to the evidence of these three witnesses in detail to show that a prima facie case cannot be said to be made out against the petitioners on the basis of their statements. In this connection, the learned counsel has placed reliance on the case of Nagawwa v. Veeranna . In this decision, it appears that, the scope of an enquiry under Section 202 of the Code was taken into consideration. It further appears that the Hon'ble Supreme Court has laid down the law in respect of the issue of processes under Section 204 of the Code. It has been held in this case that the scope of an enquiry under Section 202 of the Code is very limited and the Magistrate has only to lake into consideration the materials placed before him by the complainant. He has to find out only whether or not a prima facie case for the issue of process is made out. It has further been observed in this decision as follows :
Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merit with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204.
8. From this observation it becomes clear that once the Magistrate has exercised his discretion in the matter it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merit whether or not. The case would ultimately end in conviction of the accused. It was further held that these considerations are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code which culminates into an order under Section 204. In view of this authoritative pronouncement. I do not think it necessary to examine the evidence of the three witnesses by the learned Magistrate in course of an inquiry under Section 202 of the Code. As a matter of fact, this decision goes against the case of the petitioners.
9. The petitioners have further placed reliance on the case of R, P. Kapoor v. State o/ Punjab AIR 1980 SC 866. In this decision the true scope of provisions of Section 561-A of the old Code corresponding to Section 482 of the new Code had come up for consideration before the Hon'ble Supreme Court. It was held in this decision that ordinarily criminal proceedings instituted against the accused must be tried under the provisions of the Code and the High Court could be reluctant to interfere with the said proceedings at an interlocutory stage. Thus, this decision also goes against the petitioners.
10. The petitioners have also placed reliance on the case of Rakesh Saxena v. The State . In this case the offence alleged was more than six years old, the accused was only a trader in the Foreign Exchange Division of Bank and was not an officer. The chances of conviction of the accused appeared to be extremely doubtful. Under these circumstances, the Hon'ble Supreme Court held that the continuance of the prosecution against the accused would serve no useful purpose and the charges against him were quashed. The facts of the present case, are however, entirely different and, therefore, this decision is of no help to the petitioners.
11. From these discussions, it becomes clear that there is no merit in this application under Section 482 of the Code. It is, accordingly, dismissed and the order of stay passed on 21-2-1983 stands automatically vacated.