Khem Chand v. Avnendra Singh Nayal — 1983 DIGILAW 356 (ALL)

Judgment O.P.Saxena, J. 1. This is a Criminal Revision and connected Criminal Miscellaneous application under section 487, CrPC against the order dated 12-1-1983 passed by the learned Sessions fudge, Pithoragarh in Criminal Revision No. 18 of 1982, A. S. Nayal and two others v. State and another. 2. The facts giving rise to this revision and connected Criminal Miscellaneous application are that Khem Chand is employed as a driver in the Collectorate in district Pithoragrah. A. S. Nayal, Kunal Sharma and Sabhajit Shukla are Executive Magistrates posted in district Pithoragraph. On 19-10- 1981 Khem Chand filed n complaint against A. S. Nayal and two other Executive Magistrates for offences under Sections 323, 394, 504 and 506 IPC said to have been committed on 10-9-1981 at 8.15 P. M. It was alleged that the accused abused, threatened and beat the complainant and robbed him of Rs, 3,000/- on account of a suspicion that he had earlier made a complaint against them to the District Magistrate. THE statement of Khem Chand was recorded under section 200, CrPC on the same day. P. W. 1 Murli Dhar, P. W. 2 Lalta Prasad and P. W. 3 Govind Chandra were examined under Section 202 CrPC. On 19th July 1982 the Chief Judicial Magistrate, Pithoragarh summoned the accused for offences under Sections 394, 504 and 506 (second part) of the Indian Penal Code. Against this, the accused filed Criminal Revision No. 18 of 1982 before the Sessions Judge, Pithoragarh. THE learned Sessions Judge passed the impugned order and allowed the revision partly and quashed the order passed by the Chief Judicial Magistrate summoning the accused for an offence under Section 394, IPC. THE remaining part of the order summoning the accused for offence under Sections 504 and 506 IPC was upheld. Khem Chand has filed the Criminal Revision against a portion of the impugned order quashing the order passed by the Chief Judicial Magistrate summoning the accused for the offence under Section 394 IPC. THE accused have filed Criminal Miscellaneous Application under Section 482, CrPC for quashing the order passed by the learned Sessions Judge whereby he has confirmed summoning of the accused for offences under Sections 504 and 506 IPC. I have heard the learned counsel for parties and gone through the record. 3. There is a growing tendency on the part of mischievous litigants to file vexatious and frivolous complaints. I have heard the learned counsel for parties and gone through the record. 3. There is a growing tendency on the part of mischievous litigants to file vexatious and frivolous complaints. Complaints for criminal misappropriation are filed against outstation accused. Complaints for defamation are filed. Complaints of civil nature are filed. Some of the complaints are filed solely for harassment. The purpose of a mischievous litigant is achieved when the accused are summoned. Some Magistiates act in a mechanical manner. It is time to sound a note of caution and apprise the Magistrates of their responsibility under the law, 4. When a complaint is filed, a Magistrate takes cognizance under Section 190 (I) (a) CrPC. The complainant is examined under Section 200 CrPC. Under Section 202 (1) CrPC, the Magistrate, if he thinks fit, may postpone the issue of process against the accused, and may either enquire into the case himself or direct an lnveatigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. It is obvious that a process can be issued on the statement under Section 200 CrPC Itself, but the legislature in its wisdom does not favour any hasty decision by the Magistrate and wants him to postpone the issue of process if he Is not satisfied from the statement of the complainant and other material on the record that there is sufficient ground for proceeding. Under Section 202 (2) CrPC the Magistrate may. If he thinks fit, may take evidence of witnesses on oath. Under Section 203 CrPC, if after considering the statements on oath (if any) of the complainant and witnesses and the result of the inquiry or investigation if any) under Section 202 CrPC the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record the reasons for so doing. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient groundfor proceeding. Every case has to be judged on its own facts. The Magistrate has to exercise judicial discretion in deciding the matter. The case of Vadilal Panchal v. Dattatraya, AIR 1960 SC 1113 may be referred. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient groundfor proceeding. Every case has to be judged on its own facts. The Magistrate has to exercise judicial discretion in deciding the matter. The case of Vadilal Panchal v. Dattatraya, AIR 1960 SC 1113 may be referred. There should be neither a prejudice that complaints are generally false nor a feeling of utter helplessness that because statements under Sections 200 and 202 CrPC have been made, there is no option but to summon the accused. Apart from Section 311 CrPC, there is Section J 65 of the Evidence Act which provides as below : "165. Judge's power to put question or order production-The judge may in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, not, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved ; Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149, nor shall he dispense with primary evidence or any document, except in the cases hereinbefore excepted." 5. If the Magistrates test the credibility of witnesses by putting a few questions, it will be helpful in the enquiry for ascertaining the truth or falsehood of a complaint. 6. Sri Palok Basu, learned counsel for applicants in the application under section 482 CrPC placed reliance on a number of cases. If the Magistrates test the credibility of witnesses by putting a few questions, it will be helpful in the enquiry for ascertaining the truth or falsehood of a complaint. 6. Sri Palok Basu, learned counsel for applicants in the application under section 482 CrPC placed reliance on a number of cases. In the case of Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113 it was held: "When a Magistrate directs an inquiry under Sec. 202 GrPC, for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officer supporting a plea of self-defence made by the person complained against it is open to him to hold that the plea is correct on the basis of the report and statements of witnesses recorded by the enquiring officer. It is not obligatory on the Magistrate, as a matter of law, to issue process in such a case and leave the person complained against to establish his plea of self-defence at the trial." It was further held : "Section 203 makes it clear that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. in arriving at his judgment he is not fettered in any way except by judicial considerations; he Is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not." 7. In the case of Rajendra Nath Mahato v. Deputy Superintendent of Police, AIR 1972 SC 470 it was held that the issue of process is for judicial determination. 8. In the case of Rajendra Nath Mahato v. Deputy Superintendent of Police, AIR 1972 SC 470 it was held that the issue of process is for judicial determination. 8. In the case of Devendra Nath Bhattacharya v. State of West Bengal, AIR 1972 SC 1607 , it was held;- "An order of dismissal of a complaint under Section 203 has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not. The mere existence for some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203". It was further held: "What the Magistrate has to determine at the stage of issue of process is not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but line existence or otherwise of a prima facie case or the assumption that what is stated can be true unless the prosecution allegations are so fantastic that they cannot reasonably be held to be true." In the case of Nirmaljit Singh v. State of West Bengal, AIR 1972 SC 2639 , it was held : "Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those "materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those "materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. In Chandra Deo Singh v. Prakash Chandra Bose, (1964) 1 SCR 639 = AIR 1963 SC 1430 where dismissal of a complaint by the Magistrate at the stage of Section 202 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (P. 653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused. Unless therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. In a revision against such a refusal, the High Ccurt also has to apply the same test. The question therefore, is, whether while applying this test the Chief Presidency Magistrate was right in refusing process and the High Court in revision could confirm such refusal." 9. The legal position is that a Magistrate has to act like a reasonable and prudent person for satisfying himself prima facie if there is sufficient ground for proceeding. Where the Magistrate acts arbitrarily or ignores apparent absurdities and improbabilities of the version or acts upon intrinsically untrustworthy or self-contradictory evidence or acts in the absence of any legal evidence or acts on a complaint filed Illegally or vexatiously or without jurisdiction or without proper sanction or acts even when the complaint does not disclose any offence, there is no exercise of judicial discretion. 10. The learned counsel for the applicants referred to the allegations made in the complaint. It was submitted that the complainant got drunk and behaved in a rowdy manner. He gave abuses to the superior officers, Disciplinary proceedings were taken against him. THE complainant did not deny this in the counter-affidavit. THE occurrence is said to have taken place on 10- 9-1981 at 8.13 P. M. and the complaint was filed on 19-10-1981 after more than a month. He gave abuses to the superior officers, Disciplinary proceedings were taken against him. THE complainant did not deny this in the counter-affidavit. THE occurrence is said to have taken place on 10- 9-1981 at 8.13 P. M. and the complaint was filed on 19-10-1981 after more than a month. THE complainant got himself medically examined on 11- 9-1981 at 4.00 P. M. THE doctor found 1 contusion and 2 abrasions. He gave the duration of injuries as one day and a half. This would take the injuries to about 4.00 A. M. on 10-9-1981 i. e. almost 16 hours prior to the occurrence. THE Magistrate consequently did not prima facie accept the complainant's version regarding beating and did not summon the applicants for the offence under Section 323 IPC. THE applicants got the complainant examined on 10-9-1981 at 9.OO P.M. at the District Hospital, Pithoragarh. THE medical report shows that the complainant was not fully conscious and was abusing. His speech was slurred. He had no orientation of time and place. He was unable to tell day and time. THE conjectiva was red and congested. THE pupil was (sic) enlarged. THEre was drunken gait. THEre was alcoholic smell in breath, THE doctor reported that the patient had consumed alcohol and was intoxicated, THE Chief Judicial Magistrate was, however, of the opinion that there was prima facie case for offences under Sections 394, 504 and 506 IPC an i summoned the applicants. In the Criminal Revision the learned Sessions Judge disbelieved the complainant's version that he was robbed of Rs. 3,000/- by the applicants and held that there was no sufficient ground for proceeding under Section 394 IPC and quashed the order of the Chief Judicial Magistrate. Only PW 2 Murlidhar was the witness mentioned in the report., He did not support the complainant's version regarding intimidation and threats. PW 3 Lalta Prasad was not a witness of the occurrence, PW 4 Govind Chand's name was surreptitiously introduced in the list of witnesses after it was filed. A photostat copy of the list is Annexure III to rejoinder affidavit. THE learned Sessions Judge considered his version exaggerated and disbelieved him. It was urged that the complainant had no scruples in levelling serious charges of beating and robbery of Rs. A photostat copy of the list is Annexure III to rejoinder affidavit. THE learned Sessions Judge considered his version exaggerated and disbelieved him. It was urged that the complainant had no scruples in levelling serious charges of beating and robbery of Rs. 3,000/- and he was disbelieved prima facie for offences under Sections 323 and 394 IPC and that it would be an abuse of the process of law if his version is prima facie believed for offences under Sections 504 and 506 IPC particularly when PW 2 Murlidhar does not corroborate him on this point. It was argued that the Chief Judicial Magistrate was not satisfied on the statement of the complainant and the material on record, that there was sufficient ground for proceeding and under Section 202 (I) CrPC. He postponed the issue of process and took evidence under Section 202 (2) CrPC. In view of the nature of evidence, under section 202 (2) CrPC how could the Magistrate be satisfied that there was sufficient ground for proceeding, when he was not so satisfied after the statement of the complainant. It was contended that there was no exercise of judicial discretion and the order was passed arbitrarily. It was submitted that there is no legal evidence on the basis of which the applicants could be summoned, and to prevent the abuse of process off law, the proceedings may be quashed. Sri K. C. Dhuliya, learned counsel for the opposite parties did not dispute the facts relied upon by Sri Palok Basu. He, however, submitted that it is the function of the Magistrate to be satisfied that there is prima facie ground for proceeding against the accused and the High Court cannot on the basis of a meticulous examination of evidence interfere in this exercise of jurisdiction and quash the proceedings. 11. Reliance was placed on a number of cases. In the case of R.P.Kapur v. State of Punjab, AIR 1960 SC 856, it was held on page 869 ; "In exercising its jurisdiction under Sec. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. 11. Reliance was placed on a number of cases. In the case of R.P.Kapur v. State of Punjab, AIR 1960 SC 856, it was held on page 869 ; "In exercising its jurisdiction under Sec. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained." 12. In the case of Madhu Limaye v. State of Maharashtra, 1978 AWC 96 the Supreme Court held : "At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions (1) That the power is not be resorted to if there is a specific provision IN the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice ; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of; the Code." In the case of Hareram v. Tikaram, AIR 1978 SC 1568 on page 1570, it was held : "Now as the Magistrate was restricted to finding out whether there was a prima facie case or not for proceeding against the accused and could not enter into detailed discussion of the merits or demerits of the case and the scope of the revisional jurisdiction was very limited the High Court could not in our opinion launch on a (Detailed and mediculous examination of the case on merits." 13. In the case of P. V. Faddy v. State, AIR 1978 SC 1590 , it was held; "The High Court does not ordinarily interfere at an interlocutory stage of a criminal proceedings pending in a subordinate Court. In the case of P. V. Faddy v. State, AIR 1978 SC 1590 , it was held; "The High Court does not ordinarily interfere at an interlocutory stage of a criminal proceedings pending in a subordinate Court. The inherent powers possessed by it under Sec. 482 of CrPC can be INvoked and exercised only when the facts alleged in the complaint if they are accepted to be correct at their face value, do not make out an offence with which the accused is charged." 14. Lastly it was submitted on the basis of the case of Jagir Singh v. Ranbir Singh, AIR 1979 SC 381 that the application under Section 482 CrPC is not maintainable. Sri Palok Basu submitted that the case of Jagir Singh v. Ranbir Singh, (supra) is not applicable. In Mat case a party filed a revision before the Sessions Judge which was dismissed and then filed a revision against the order of Sessions Judge before High Court. It was held to be barred under Section 379 (3) CrPC. The Supreme Court also refused to treat it as one under Article 227 of the Constitution. In this case the applicants filed a revision before the Sessions Judge, but did not file a revision before the High Court. They filed an application under Section 482 CrPC which is maintainable. 15. On the scope of Section 482 CrPC, he placed reliance on a number of cases. 16. In the case of R. P. Kapur v. ,State of Punjab, AIR 1960 SC 867, the Supreme Court held on page 869 "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise, to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or, continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases [under this category. Cases may also arise where the allegations in the First INformation Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First INformation Report to decide whether the offence alleged is disclosed or not. IN such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the INherent jurisdiction of the High Court can be successfully invoked may also arise. IN cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. IN cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. IN dealing with this class ot cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there Is legal evidence which on its apperciating may of may not support the accusation in question." In the case of Rajendra Nath v. Deputy Superintendent of Police, AIR 1972 SC 470 it was held on page 471 : "It was contended on behalf of the appellant that the High Court should not have gone to the question as to whether a prima facie case was established or not. The High Court under Section 561- A of the Code of Criminal Procedure can go into the question as to whether there is any legal evidence. When the High Court said that the evidence in the present case came from tainted sources and was not reliable the High Court meant what can be described as *no case to go to the jury". 17. In the case of Dr. Sharda Prasad Sinha v. State of Bihar, AIR 1977 SC 1754 , it was held on page 1755 : "It is now settled law that where the allegations set out in the complaint or the chargesheet do not constitute any offence, it is competent to the High Court exercising Its INherent jurisdiction Binder S. 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence." 18. In the case of Madhu Limaya v. State of Maharashtra, AIR 1978 SC 47 (1978 AWC 96) it was held on page 51 "The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. In the case of Madhu Limaya v. State of Maharashtra, AIR 1978 SC 47 (1978 AWC 96) it was held on page 51 "The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court can not be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice." I find much substance in the submissions made by the learned counsel for applicants. I am unable to accept the contentions of the learned counsel for the complainant. I have not attempted any meticulous examination of the evidence on the record. The High Court is certainly entitled to consider If the Magistrate has exercised judicial discretion. If the High Court finds that the Magistrate has failed to exercise judicial discretion it would not hesitate to prevent the abuse of the process of law. The power has to be of course exercised sparingly but not grudgingly. In view of the facts submitted by the learned counsel for the applicants which have not been disputed, I hold that the Chief Judicial Magistrate acted arbitrarily in coming to the conclusion thai there is sufficient ground for proceeding against the applicants for offences unde.7 Sections 394, 504 and 506 IPC. He failed to take note of the fact that PW 2 Murlidhar did not support the main version of the complainant and that PW 4 Gulab Chand is not a witness reasonably worthy of credit. He accepted intrinsically untrustworthy evidence. He failed to take note of the fact that PW 2 Murlidhar did not support the main version of the complainant and that PW 4 Gulab Chand is not a witness reasonably worthy of credit. He accepted intrinsically untrustworthy evidence. I deem it fit and proper to quash the proceedings against the applicants to prevent the abuse of the process of Court and secure the ends of justice. 19. SRI K. C. Dhuliya, learned counsel for the applicant in the Criminal Revision submitted that the learned Sessions Judge had no jurisdiction to go into the question of fact and quash the proceedings under Section 394 IPC. SRI Palok Basu, learned counsel for the opposite parties submitted that where there was failure in the exercise of jurisdiction by the Magistrate inasmuch as there was no application of judicial discretion In coming to the conclusion that there was sufficient ground for proceeding against the opposite parties, the Sessions Judge was entitled to interfere. Under Section 399 (1) CrPC the powers of (Sessions Judge in a criminal revision are the same as that of a High Court under Section 401(1) CrPC. Under Section 401 (1) CrPC the High Court exercises the same powers as a Court of Appeal under Sections 386, 389, 390 and 391 CrPC. Under Section 399 (1) CrPC read with Sections 401 (1) and 386 CrPC, the Sessions Judge had power to reverse the order passed by the Magistrate and he could go into the facts of the case also. Apart from this the order passed by the learned Sessions Judge in respect of offence under Section 394 IPC is detailed and well reasoned. In this view of the matter, no interference is called for in respect of the order quashing proceedings under Section 394 IPC. 20. Criminal Revision No. 249 of 198B is dismissed. CRIMINAL Misc. Application No. 1775 of 1983 is allowed. The proceedings pending before the Chief Judicial Magistrate are quashed.