Patna High Court
Mangal Das And Ors. vs Mst. Rabia on 18 March, 1958
Equivalent citations: AIR1959PAT504, 1958(6)BLJR471, 1959CRILJ1353
ORDER
1. These two applications arise out of the same proceeding and have been consolidated and heard together and this judgment will govern both. It will, however, be more convenient to deal with them separately.
2. Cr. Rev. 922: By this application the petitioners challenged the validity of the order of the Sub-divisional Officer, Begusarai, dated 1-7-57 summoning the accused persons to take their trial for the offences under Section 379 I. P. C. on the ground that this order was incompetent and without jurisdiction because it was passed without considering the report of the officer to whom the case had been referred for enquiry. The facts of the prosecution case are briefly as follows: The complainant. Mt. Rabia filed a complaint on 13-5-57 before the Sub-divisional Officer, Begusarai, against the petitioners alleging inter alia that on 1-3-57 the petitioner uprooted the mustard plants of her field and in spite of her protest took away mustard worth Rs. 10. On 27-3-57 the learned Sub-divisional Officer examined the complainant on solemn affirmation and referred the case to the Sub-Registrar of Teghra for enquiry and report by 27-4-57.
The Sub-Registrar, Teghra did not hold the enquiry though the date for submission of the enquiry report was extended from time to time. Eventually, he returned the paper to the Sub-divisional Officer without report. On 1-7-57 the Sub-divisional Officer summoned the petitioners without further enquiry on the ground that the enquiry by the Sub-Registrar was sufficiently delayed and further enquiry by another officer would be improper and result in waste of time. Against this order, the petitioners moved the Sessions Judge. It is alleged that two points were pressed before the Sessions Judge, first that after having referred the case for enquiry the learned Sub-divisional Officer should not have summoned the petitioners before the case was enquired into, and, secondly that the petitioner, Mr. Sundari, should be allowed to be represented by a lawyer, and her personal appearance should be dispensed with. It appears from the order of the learned Sessions Judge dated 28-9-57 that he has not dealt with the first question; he only considered the second question and disposed of the application. Against that order the petitioners have come up in revision. It has been contended on their behalf that the incompetence of the order of the Sub-divisional Officer summoning the petitioners before the receipt of the report of the enquiring officer was raised before the Sessions Judge, but he did not pass any order thereon.
3. I assume for the purpose of this case that this point was raised before the learned Sessions Judge. The question is whether the order of the Sub-divisional Officer summoning the petitioners is illegal and should be set aside.
4. It is incontrovertible that where the Magistrate after the perusal of the complaint and the solemn affirmation postpones the issue of processes for compelling the attendance of the persons complained against and directs an enquiry or investigation to be made by another Magistrate subordinate to him or by a Police officer or by such other person as he thinks fit for the purposes of ascertaining the truth or falsehood of the complaint, he should not summon the accused persons unless he has considered the report of the enquiring officer, for the simple reason that there is no material before him to dispel the doubt in his mind which initially prompted him to order enquiry before summoning them. Reference may be made to the decision of the Division Bench in Bindeshwar v. Rambhujhawan, ILR 29 Pat 1059.
It has been laid down in this case that where a Magistrate doubts the truth of the complaint and orders a judicial enquiry under Section 202 of the Code of Criminal Procedure he should not proceed further with the case until the doubts have been removed by the receipt of a report by the officer who holds the judicial enquiry, and further if it is found that the original person appointed to hold the enquiry is unduly delaying the matter, the enquiry should be entrusted to someone else, but in no case should processes be issued against the accused until a report has been received and considered.
Accordingly the order of the Sub-divisional Magistrate summoning the petitioners was no doubt irregular and liable to be set aside. But in this particular case this ruling has no application. The petitioners did not prefer any appeal or revision against the aforesaid order of the Sub-divisional Magistrate then and there, on the contrary they submitted to the order and allowed the case to proceed. It is stated at the bar, and there is no challenge of this fact that certain witnesses have already been examined on behalf of the prosecution and cross examined on behalf of the petitioners. The petitioners therefore challenged the correctness of the order of the Magistrate long after that order was put into force and accepted by both the parties. After all the order of the Magistrate is not wholly incompetent and illegal.
The learned Magistrate had jurisdiction to summon the petitioners. The order was only irregular, because there was no proper exercise of judicial discretion, on his part. As pointed out by a Division Bench of the Calcutta High Court in Krishna Bala Dasi v. Niroda Bala Dasi, AIR 1925 Cal 989, which has also been relied upon by the Division Bench of this Court in the case of Bindeshwar, ILR 29 Pat 1059 referred to above, the order of the Magistrate is irregular. The Magistrate had jurisdiction to summon the accused persons immediately on the receipt of the complaint and examination of the complainant on solemn affirmation. When he prima facie distrusts the truth of the complaint he is empowered under Section 202 of the Code of Criminal Procedure to direct an enquiry for ascertainment of the truth or falsehood of the complaint.
It is therefore, not a sound exercise of judicial discretion on his part if before the doubt which was at the root of the submission of the case for enquiry was removed. Therefore, it is obvious that where a Magistrate distrusting the truth of a complaint directed an investigation under Section 202; but instead of waiting for the report issued summons against the petitioners, the order was irregular, because no fresh materials were before him to remove the doubt which he initially entertained. But, when once the case has proceeded to hearing and the witnesses have been examined on behalf of the prosecution the very object of the enquiry to'ally disappears, and it will be wholly wrong to declare the evidence already taken as illegal and direct the Magistrate to proceed from the stage at which he directed enquiry into the case. In view of the changed circumstances, there is no necessity of further enquiry under Section 202 of the Code of Criminal Procedure and the order of the Magistrate summoning the petitioners cannot therefore be set aside.
5. In my opinion there is no merit in this application and accordingly it is dismissed.
6. Cr. Rev. 942: This application has been filed on behalf of Mt. Sundari wife of Rohitlal Gupta for her exemption from personal appearance in the court below. She is one of the accused in the criminal case aforesaid. She had been exempted from her personal appearance but by his order D/-10-8-57 the Magistrate directed her to appear in court in purdah on the date fixed for hearing for identification. There was a subsequent attempt to obtain her exemption from personal appearance and by his order dated 17-9-57 the Magistrate adhered to his previous order dated 10-8-57. The petitioner moved the Sessions Judge, Monghyr, against that order. The learned Sessions Judge observed as follows:
"It is stated on behalf of Mt. Sundari that she undertakes to waive all objections on the point of her identification by the P. Ws. In the circumstances if the learned Magistrate is satisfied that she is pardanashin, he may consider the question of exempting her personal appearance. Section 540A as amended in 1956 gives wide discretion to the Magistrate in the matter."
The order of the Sessions Judge was wholly vague and indefinite, he did not pass any clear order, one way or the other, and this vagueness in the order has necessitated a revision to this Court.
7. The learned Advocate appearing for the opposite party did not resist this application and candidly conceded that there was no objection to her exemption from personal appearance in the court especially, when she did not challenge the competency of the prosecution witnesses to identify her.
8. Accordingly this application is allowed, and she will be exempted from personal appearance in the Court of the Magistrate.