Ram Kumar Pandey v. State Of Bihar — 1978 DIGILAW 243 (PAT)

Judgment Nagendra Prasad Singh, J. 1. The petitioner in the Criminal Miscellaneous case (Cr. Misc.2948 of 1977) has filed the present application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to s the code} for quashing an order dated 31.7.1974 by which the learned Chief judicial Magistrate, Katihar has summoned the petitioner along with some other accused persons to stand trial for offences under sections 380 and 504 of the Indian Penal Code. 2. It appears that on 14.11.1973 a first information report was lodged by the complainant (opposite party no.2) against this petitioner and some others. The investigation proceeded on the basis of that first information report. However, before the final form could be submitted the complainant-opposite party filed a petition of complaint on 21.11.1973 making certain allegations against the police investigation, and making a prayer that the accused persons should be summoned and put on trial. On 27.11.1973 the final form under section 173 of the Code of Criminal Procedure, 1898 was submitted saying that the case was maliciously false ; as such, accused need not be sent up for trial. Learned Chief Judicial Magistrate on 31.7.1974 examined the complainant on solemn affirmation and then he passed the impugned order saying : "the complainant (informant) is examined on oath. Perused the case diary and statement of the complainant on oath. The prima facie case under sections 380 and 504 I. P. C. appears to have been made put. Cognizance taken under section 504 and 389 I. P. C. The Case is transferred to Shri H. C. Mittal, Judicial Magistrate, 1st Class, katihar, for disposal. Summon the accused to appear on 25.8.74. " The petitioners in Criminal Writ Jurisdiction Case No.207 of 1977, who had also been summoned by the aforesaid order, filed a revision application before the Sessions Judge, Purnea which was heard by the Additional Sessions judge, Purnea, who by his order dated 20.9.1976, dismissed the said revision application. The writ application has been filed against that order. 3. Learned counsel appearing for the petitioners in both the applications has first pressed the criminal miscellaneous application saying that the petitioner of that application has not moved ths Sessions Judge for exercise of his re visional power and came to this Court directly. As such I propose to examine the legality of he impugned order in the criminal miscellaneous application first. 4. As such I propose to examine the legality of he impugned order in the criminal miscellaneous application first. 4. The grievance of the petitioner against the impugned order dated 11-7- 1974 is that for the purpose of summoning him learned Chief Judicial "magistrate has also perused the statements recorded in the case diary which was extraneous for the purpose of forming opinion as to whether a prima Jade case has been made out against the accused persons. According to him, after the petition of complaint was entertained and the complainant was examined on solemn affirmation it was not open to the learned Chief Judicial Magistrate to look into the police papers. 5. In order to appreciate the above contention certain provisions of the Code have to be examined. Sec.190 of the Code prescribes that a magistrate may take cognizance of any offence either (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 pon his own knowledge that such offence has been committed. Chapter XV of the Code contains provisions which are applicable only to cases where cognizance has been taken on basis of a petition of complaint. Sec.200 says that the Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any If after examining the complainant on solemn affirmation he s of the opinion that before issuance of process an enquiry or investigation be held under section 202 he may pass an order for the same. Thereafter, section 203, provides as to how a petition of complaint can be dismissed. It is as follows :- "if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry 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, and in every such case he shall briefly record his reasons for so doing. " In view of section 203, before a petition of complaint is dismissed, the magistrate concerned has to consider the statement on oath of the complainant and of the witnesses along with the result of inquiry or investigation, if any, held under section 202, and if after perusal thereof he is of the opinion that there is no sufficient ground for proceeding then he shall dismiss the complaint If however, he does not dismiss the complaint, he has to issue process in accordance with section 204 of the Code which is applicable to a proceeding instituted on a police report as well as to a proceeding instituted otherwise than on a police report including a proceeding on basis of a complaint. In view of the explicit and unambiguous language of section 203 there cannot be anv doubt that for purpose of dismissing a petition of complaint it is not open to the Magistrate concerned to peruse the police papers and the statements recorded by the police during investigation which preceded the filing of the petition of complaint. This section clearly mentions the materials which have to be perused before an order of dismissal can be passed. The Supreme Court in the case of Chandra Deo Singh V/s. Prokash Chandra Bose alias Chandi Base and another ( AIR 1963 SC 1430 ) in connection with section 203 of the Code of criminal Procedure, 1898 which was substantially the same as the present section 203, pointed out :- "the power to dismiss a complaint rests only with a Magistrate who has taken cognizance of it. If before issue of process, he had sent down the complaint to a Magistrate subordinate to him for making the enquiry, he has the power to dismiss the complaint, if in his judgment, there is no sufficient ground for proceeding, one of the conditions, however, requisite for doing so is the consideration of the statements on oath if any made by the complainant and the witnesses and of the result of the investigation or the enquiry which he had ordered to be made under section 202, cr. P. C. In case before us, an investigation by a police officer was not ordered by the learned Sub-Divisional Magistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry. P. C. In case before us, an investigation by a police officer was not ordered by the learned Sub-Divisional Magistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry. It was not open to him to consider in this connection the statements recorded during investigation by the police on the basis of the first information report lodged by Panchanan Roy or on the basis of any evidence adduced before him during the enquiry arising out of the complaint made by mahendra Singh. All these were matters extraneous to the proceeding before him. " 6. Now the question is as to whether the same bar regarding perusal of the statements and materials collected during the police investigation is applicable in cases where the Magistrate issues process to the accused concerned to appear before him. It is true that under section 204 nothing is mentioned in respect thereof, section 204 says that if in the opinion of the magistrate taking cognizance of the offence there is sufficient ground for proceeding, then he may issue summons or warrant, as the case may be. On the basis of what materials this opinion is to be formed is not specified in section 204, in my opinion, in complaint cases he cannot form this opinion for the purpose of summoning an accused on materials other than the materials on the basis of which he can dismiss a petition or complaint under section 203, otherwise it will lead to an anomalous position. Whether the petition of complaint should be dismissed or the accused concerned should be summoned, the opinion has to be formed at the same time. If on perusing the materials mentioned in section 203 the Magistrate is of the opinion that the petition of complaint should not be dismissed then he has to summon under section 204. In my view, it is difficult to accept this contention which has been raised on behalf of the State that although it is not permissible to look into the police papers and the statements recorded during the investigation which preceded the filing of the petition of complaint, for purpose of dismissing the petition of complaint but those very papers and statements can be looked into if the magistrate is of the opinion that accused persons should be summoned. 7. 7. Learned counsel appearing for the State has drawn our attention to a recent judgment of the Supreme Court in the case of Hareram Satpathy V/s. Tikaram Agarwala and others, (AIR 1958 SC 1568 ). In that case a first information report was lodged. After investigation, police submitted charge-sheet against six persons. About the remaining seven who had been named by the informant, the police was of the opinion that no offence appeared to have been made out against them, and, as such, final report was submitted so far as they were concerned. Latter, a petition of complaint was filed by the informant against all the thirteen accused persons reiterating the allegations made by him in the earlier first information report. Learned Subdivisional Magistrate after perusal of the case diary and the statements recorded during the investigation summoned even the remaining seven persons saying that prima facie case had been made out againts them as well. That order was set aside by the high Court. The Supreme Court in the aforesaid case took the view that the learned Sub-divisional Magistrate was perfectly justified in summoning the remaining seven accused persons after perusal of the case diary and the statements recorded during investigation. In this connection reference was also made to the well-known case of Raghubans Dubey V/s. State of Bihar, air 1967 SC 1167 . In a recent Full Bench judgment of this Court in the case of Kuli Singh and others V/s. State of Bihar, 1978 BBCJ 400 ), the police had submitted a final report saying that no case had been made out against the accused persons. Learned Magistrate, however, before whom that final report was placed, after perusing the case diary summoned the accused persons. That order was challenged saying that the Magistrate could not have differed with the opinion expressed by the police and could not have summoned the accused persons by looking into the case diary and the statements of the witnesses recorded during investigation. By majority that order was upheld saying that when a final report is submitted by the police to a Magistrate, the magistrate is expected to apply his judicial mind to the report and to consider whether it discloses any offence or not. By majority that order was upheld saying that when a final report is submitted by the police to a Magistrate, the magistrate is expected to apply his judicial mind to the report and to consider whether it discloses any offence or not. For the purpose of arriving at that conclusion, it is open to him to look into the case diary and other relevant materials, he may differ with the opinion formed by the police and may summon the accused ; this will amount to taking the cognizance on the basis of police report under section 190 (1) (b) of he Code. In view of the aforesaid supreme Court judgment and the Full Bench judgment of this Court there should not be any difficulty in holding that it is open to the Magistrate before whom a final report is submitted, to summon the accused persons differing with the opinion of the police, after perusal of the case diary and the statements of the witnesses recorded during investigation. But, in the instant case, we are not concerned with such a case. Here the petition of complaint was entertained and the complainant was examined on solemn affirmation. Then, is it open after having adopted the procedure prescribed for a complaint case, to look into the police papers and the statement of the witnesses examined during investigation. Even in the aforesaid Supreme Court judgment in the case of hareram Satpathy (supra) cognizance against the remaining accused persons had been taken on the basis of the police report. Although a petition of complaint had been filed by the informant in that case, no action appears to have been taken by the Magistrate of that case on the basis of that petition of complaint. From paragraph 8 of the judgment it is clear that the Magistrate had taken cognizance of the offence on the police report in respect of all the thirteen accused persons. This will amount to taking cognizance on the basis of police report under section 190 (1) (b) of the Code. Here, admittedly the magistrate after taking cognizance on the basis of the complaint under section 190 (1) (a) proceeded to examine the complainant on solemn affirmation in accordance with section 200 oi Chapter XV of the Code. This will amount to taking cognizance on the basis of police report under section 190 (1) (b) of the Code. Here, admittedly the magistrate after taking cognizance on the basis of the complaint under section 190 (1) (a) proceeded to examine the complainant on solemn affirmation in accordance with section 200 oi Chapter XV of the Code. In my view, then it is not permissible to peruse the statements of the witnesses recorded during investigation either for the purpose of dismissing that petition of complaint under section 203 or for the purpose of summoning the accused9 persons under section 204. If for the purpose of dismissal of the complaint, the statement of witnesses examined during earlier investigation cannot be looked into, the same cannot be looked into even for the purpose of summoning. The magistrate has to apply his mind only to the materials produced in connection with the complaint case and to any investigation which might have been ordered under section 202 of the Code. In such a situation, I am left with no option but to hold that the learned Chief Judicial Magistrate for the purpose of summoning the petitioner should not have perused the case diary. 8. Learned counsel appearing for the State has submitted that he has not only perused the case diary but also the statement of the complainant on oath. It is true, but because of the hybrid procedure adopted by the learned magistrate, it is difficult to judge as to what had really weighed with him. 9. In the result, I allow this application (Cr. Misc. No.2948 of 1977)and quash the order in question. Learned Chief Judicial Magistrate shall again apply his mind to the materials, which are on the record in connection with the complaint case and pass a suitable order in accordance with law. It will be open to him, if he so thinks, to hold an enquiry under section 202 of the Code. 10. So far as the writ application (Cr. W. J. C. No.207 of 1977), which has been filed on behalf of five petitioners, is concerned, in ordinary course I would not have interfered with the order in question in exercise of the writ jurisdiction. The petitioners of that writ application have already invoiced the revisional jurisdiction of the Sessions Judge, Purnea. So far as the writ application (Cr. W. J. C. No.207 of 1977), which has been filed on behalf of five petitioners, is concerned, in ordinary course I would not have interfered with the order in question in exercise of the writ jurisdiction. The petitioners of that writ application have already invoiced the revisional jurisdiction of the Sessions Judge, Purnea. But, in view of the fact that the impugned order has been quashed at the instance of he petitioner of Criminal Miscellaneous No.2948 of 1977, who had directly come to this Court against that order, it is just and proper that the said order is also quashed so far as these petitioners are concerned. Accordingly, the writ application is also allowed and the impugned orders are quashed. Learned chief Judicial Magistrate shall also examine the materials afresh so far as these petitioners are concerned in the light of the directions given in connection with the petitioner of Criminal Miscellaneous No.2948 of 1977. Application allowed.