Rudal Mahto v. Narain Mahto — 1986 DIGILAW 319 (PAT)

JUDGMENT : S.H.S. ABIDI, J. 1. Petitioner Rudal Mahto has filed this revision against the ORDER :dated 10.5.1986 passed by the learned Judicial Magistrate 1st Class, Muzaffarpur, by which he has dismissed the complaint (being Complaint Case No. 148 of 1985) filed by the petitioner on 6.7.1985. 2. In the complaint filed it was stated that on 5.7.1985 at about 2 P.M. one Narain Mahto came at the door of the petitioner with his companions, assaulted him and snatched away some money and Narain Mahto also set fire to the house of the petitioner on account of which the bathan of the petitioner was burnt. The motive for the occurrence was that Narain Mahto had been claiming a piece of land belonging to the petitioner. 3. The learned Magistrate sent the complaint to the Principal Probation Officer under section 202 of the Code of Criminal Procedure (for short the Code) for enquiry after spot inspection. The required report was sent by the Principal Probation Officer on 13.8.1985. Copies of the complaint as well as the said report have been filed as annexure 2 and 3 respectively to the revision petition. The Principal Probation Officer reported for taking action against the opposite parties under sections 147, 323, 436 and 379 of the Indian Penal Code. Four witnesses were examined by the complaint-petitioner and the three other witnesses could not be examined as one of them had died and the two others were not prepared to support him. But the four witnesses, who had been examined, had said categorically that Narain Mahto had set fire to the house and the cowshed. 4. The learned Magistrate by the said ORDER :dated 10.5.1986 held that the four witnesses of the prosecution have given contradictory statements. In the complaint it has been specifically mentioned that Narain Mahto had set fire to the bathan used for keeping cattle, nad, khunta etc. P.W. 1 Jagan Singh has said that the bathan in question was open from outside and that bathan is not a dwelling house. P.W. 2 Jai Kishun Mahto has said that the bathan was also used as dwelling house. P.W. 3 Bandhu Mahto says that the petitioner had two houses. Out of them one was used for keeping cattle and the other was used for dwelling purpose and both the houses were burnt. P.W. 4 Jagdish Thakur had said that the house was partitioned. P.W. 3 Bandhu Mahto says that the petitioner had two houses. Out of them one was used for keeping cattle and the other was used for dwelling purpose and both the houses were burnt. P.W. 4 Jagdish Thakur had said that the house was partitioned. The Learned Magistrate, therefore, held that the witnesses have contradicted each other and given out a new story that bathan does not denote to be a dwelling house and provision of section 436 of the Indian Penal Code (for short I.P.C.) apply if a dwelling house is burnt. He, therefore, dismissed the complaint under section 203 of the Code. 5. Learned Counsel for the petitioner has mainly argued that the learned Magistrate after finding that offence under section 436 I.P.C. was alleged to have been committed and the same is exclusively triable by the court of Session, then he should have committed the same to the court of Session under the provisions of section 209 of Code and that he had no power to dismiss the complaint. Learned Counsel for the opposite party, who has appeared, has also argued that the learned Magistrate on the basis of complaint has to enquire as to whether a prima facie case has been made out and that if a case has not been made out, he could dismiss the complaint and so he rightly dismissed the complaint. Further it was argued by him that out of seven witnesses only four had been examined, though one of the three witnesses had died, but the other two are said to have been friendly to the accused and should also have been examined so that the accused at the stage of trial, if any, in the Court of Session may take advantage of this statement whether friendly or unfriendly to the prosecution and that in the event of non-examination of said two hostile witnesses the defence has been prejudiced. 6. No doubt when a complaint is filed, the Magistrate is to make an enquiry to ascertain the truth or falsehood of the complaint i.e. whether the evidence in support of the complaint justifies for the issue of process and commencement of the proceedings against the person concerned. The Magistrate has also on the basis of that enquiry to form an opinion as to whether process is to be issued or not to the accused. The Magistrate has also on the basis of that enquiry to form an opinion as to whether process is to be issued or not to the accused. He is also to remove from his mind any hesitation that he may have felt upon a perusal of the complaint and the consideration of the complainant's evidence on oath. He is not to see whether the evidence is sufficient to warrant conviction. The enquiry is not just like a trial. The object of the enquiry is not to ascertain the truth or falsehood of the complaint and in making such enquiry he has to make reference to the intrinsic quality of the statements made before him by the complainant and his witnesses on oath. The person charged might have any defence and the court at the stage of enquiry has not to look into the probable defence of the accused if he would have appeared after notice. As a matter of fact till the notice is issued, the accused has no locus standi and so his probable defence is not to be kept in mind by the court or anticipated when issuing notice. The Magistrate under section 202 of the Code on receipt of the complaint may postpone the issue of process and either make enquiry himself or direct enquiry to be made by a Magistrate subordinate to him or by a police officer, for ascertaining its truth or falsehood. After the aforesaid enquiry either himself by examining on oath the complainant and his witnesses or also getting the report if the Magistrate feels satisfied that there is no sufficient ground to proceed then the Magistrate can dismiss the complaint under section 203 of the Code. But if on consideration of the evidence the Magistrate feels satisfied that the evidence is not contradictory, has intrinsic value or appears to be trustworthy then he will issue process to the accused under section 204 of the Code whereafter the accused will appear and face the trial. This is what is the purpose of sections 202, 203 and 204 of the Code with respect to the cases triable by the Magistrate. 7. This is what is the purpose of sections 202, 203 and 204 of the Code with respect to the cases triable by the Magistrate. 7. Under the old Code the procedure for a case triable exclusively by a court of session, there was the procedure for commitment for which the Magistrate was to hold a preliminary enquiry during which he was entitled to weigh the material on the record to see whether there was sufficient evidence for commitment and not for conviction. If he found that there was some evidence on the basis of which a conviction may reasonably be made, then he used to commit, otherwise he used to discharge the accused. 8. In the case of K.P.S. Raghwan vs. M.H. Abbas, 1967 SC 740 at 742, the Supreme Court observed as follows:– "No doubt a magistrate enquiring a case u/s 209 Cr. P.C. is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the court of session but in arriving at the conclusion it is not the function of an enquiring magistrate to weigh the pros and cons of the prosecution and defence evidence and to discharge the accused merely because in his view the defence evidence was better than the prosecution evidence." "In terms, section 200 applies to cases which are instituted otherwise than on a police report. But the principle underlines that section applies to cases which are instituted on a police report. A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to shift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit it is his duty to discharge the accused; if there is some evidence on which a conviction may reasonably be made, he must commit the case. The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate at that stage is whether there is some credible evidence which would sustain a conviction." 9. The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate at that stage is whether there is some credible evidence which would sustain a conviction." 9. Under the new Code, the procedure under the old Code of holding of preliminary enquiry has been abolished in cases triable exclusively by court of session, as such enquiry did not serve any useful purpose and it involved a great deal of infructuous work causing much delay in the disposal of sessions cases. But the stage of Magistrate could not be avoided, as the Sessions Judge could not take cognizance and it was a Magistrate who could take cognizance under section 190 and commit the case to courts of Session u/s 193 of the Code. Thus the view provision in section 209 were made. It applied to cases both on police report as well as complainants filed by the parties. The Magistrate is to perform the judicial function only to be satisfied that an offence is prima facie disclosed and that the case is triable exclusively by court of Session. If it finds so, he is to commit the same and he has no power of discharge after evaluating evidence meticulously with details and from the point of any probable defence. This standard is applicable to cases instituted on police report as well as those filed on the basis of complaint. Even in a complaint case, the Magistrate finding that the case it triable by a court of session, is to take recourse to Section 204 of the Code for the needful. 10. This standard is applicable to cases instituted on police report as well as those filed on the basis of complaint. Even in a complaint case, the Magistrate finding that the case it triable by a court of session, is to take recourse to Section 204 of the Code for the needful. 10. In the case of State of Bihar vs. Ramesh Singh, 1977 SC 2018 at 2020: 1978 PLJR 14 (SC), the Supreme Court has said:– "In Nirmaljit Singh Hoon vs. State of West Bengal and Another (1) Shelat, J. delivering the JUDGMENT : on behalf of the majority of the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh vs. Prakash Chandra Bose (2) where this Court was held to have laid down with reference to the similar provisions contained in S.202 and 203 of the Code of Criminal Procedure, 1898 that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction and observed 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. Illustratively, Shelat J, further added 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." 11. Later the Supreme Court in the case of Sanjay Gandhi vs. Union of India, AIR 1978 SC 514 : 1978 Cr. L.J. 462, while dealing with the section 209 of the New Co-observed as follow:– "(2) We have heard Counsel on both sides and proceed to elucidate certain clear propositions under the new Code hearing upon the committal of cases where the offence is triable exclusively by the courts of session. The committing Magistrate in such cases has no power to discharge the accused nor has he power to take oral evidence save where a special provision like section 306 enjoins. (3) And secondly it is not open to the committal court to launch a process of satisfying itself that a prima facie case has been made out on the merits. The committing Magistrate in such cases has no power to discharge the accused nor has he power to take oral evidence save where a special provision like section 306 enjoins. (3) And secondly it is not open to the committal court to launch a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in remodeling section 207 A (old Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully, if interpretatively we held that the dress rehearsal of a trial before the Magistrate is in ORDER :. In our view narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report appears to the Magistrate to show an offence triable solely by the courts of session. Assuming the facts to be correct as stated in the police report, if the offence is plainly one under S.201 I.P.C., the Magistrate has simply to commit for trial before the courts of session. If by error, a wrong section of the Penal Code is quoted, he may look into that aspect. Shri Mulla submits if the Magistrates were to be severely truncated like this the prosecution may stick a label mentioning a session offence (if we may use that expression for brevity sake) and the accused will be denied a valuable opportunity to prove his ex facie innocence. There is no merit in this contention. If made-up fact unsupported by any material are reported by the police and a sessions offence is made to appear, it is perfectly open to the Sessions Court under section 227 Cr. P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused." 12. In a Full Bench decision in Dineshwar Prasad vs. State of Bihar, 1978 Cr. P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused." 12. In a Full Bench decision in Dineshwar Prasad vs. State of Bihar, 1978 Cr. L.J. 1080 at page 1083, it was observed as follows:– "It would thus be seen that when an offence is exclusively triable by a court of Session in a case instituted on a police report or otherwise and the accused appears or is brought before the Magistrate, he shall commit the case to the court of Session and subject to the provisions of the Code relating bail, remand the accused to custody during and until the conclusion of the-trial." 13. Later in the case of Kewal Krishna vs. Suraj Bhan and another, 1980 S.C. 1780 at page 1783 & 1784 the Supreme Court held as follows:– "At the stage of sections 203 and 204 Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, Criminal Procedure Code, there is prima facie evidence in support of the charge leveled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh's case (ibid) that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and JUDGMENT :, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. The standard of proof and JUDGMENT :, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori at the stage of sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be it sufficient ground for issuing process to the accused and committing them for trial to the Court of Session." "The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary enquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the Magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code, 1973 dispenses with the enquire preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. Section 209 says: "When a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session he shall commit the case to the Court of Session." 14. Thus from this it is clear that a Magistrate on getting the police report or otherwise on application of judicial mind finds that the offence comes within the clutches of a section triable by a court of Session, the Magistrate is to commit the same to the Court of Session. That judicial application of mind is search for knowledge with study and scrutiny and not a mere mechanical act and so an enquiry. But all that do not give power to the Magistrate after coming to the conclusion that the allegations and the materials on record attracted a particular provision which is exclusively triable by a Court of Session to pass an ORDER :dismissing the complaint under section 203 Cr. P.C. holding that there is no sufficient ground for proceeding. But all that do not give power to the Magistrate after coming to the conclusion that the allegations and the materials on record attracted a particular provision which is exclusively triable by a Court of Session to pass an ORDER :dismissing the complaint under section 203 Cr. P.C. holding that there is no sufficient ground for proceeding. He has to take recourse to the provisions of section 204 of the Code and then to commit the case for trial by the Court of Session and later on after commitment if the allegations are not found to be supported by any material, then the Sessions Court may discharge accused under section 227 of the code as this provision takes care of the accused and his grievance, if any. 15. In the instant case, the learned Magistrate after receiving the complaint and after getting the same enquired into by the Principal Probation Officer, who in his turn, reported that an offence is made out under sections 147, 323, 436 and 277 of I.P.C. Section 436 I.P.C. is exclusively triable by a Court of Session, then the Magistrate should have committed the case to the Court of Session. His enquiry by the examination of the complainant and the four witnesses and coming to the conclusion on the basis of the evidence that they have contradicted each other and there was nothing to form opinion for proceeding further was not warranted by the provision of law. Even if the Magistrate has examined the complainant and his witnesses, he could not look to the case from the angle of conviction or acquittal. Definitely in this case, the witnesses are one to support the complaint that the bathan had been set to fire, and the evidence is also that the bathan was used as dwelling house may be evidence a bit contradicting-but the Magistrate has no jurisdiction to discredit the witnesses who said that it was used as dwelling house. If one witness, who said that the bathan was used as dwelling house of the accused (sic) and if this statement of the witness at the later stage during the course of trial was found to be satisfactory which was if reliable and confidence inspiring, then conviction of the accused would have been then (sic). If one witness, who said that the bathan was used as dwelling house of the accused (sic) and if this statement of the witness at the later stage during the course of trial was found to be satisfactory which was if reliable and confidence inspiring, then conviction of the accused would have been then (sic). But at this stage of enquiry when the Magistrate is only to see material on record and particular penal provision is attracted in which in its turn is exclusively triable by a court of session, the Magistrate has no jurisdiction to record a finding that the evidence was contradictory and so an ORDER :under section 203 of the Code was passed. On coming to know from the facts and materials that section 436 I.P.C. has been attracted, the Magistrate should have committed the case to the Court of Session. Thus the contention of the learned Counsel for the petitioner that the Magistrate has exceeded his jurisdiction and has passed illegal and erroneous ORDER :stands to reason. 16. The contention of the learned Counsel for the opposite party that out of seven witnesses only four had been examined and three had been withheld and so the opposite parties would suffer if the case is committed to the Court of Session, is incorrect. No doubt, all the witnesses cited in the complaint are being examined so that the accused may take advantage of the evidence given by the witnesses cited in the first information report but if one of the witnesses is dead and two witnesses have turned hostile and those are not being relied on by the complainant then naturally the complainant is placing reliance upon the statement of these four persons who have been examined by him during the enquiry. The accused had only four witnesses against them and they can take full advantage of their statements in their favour and they may get ORDER :of discharge under section 227 of the Code by the Court of Session after commitment. 17. In the result, this revision application is allowed and the ORDER :of the learned Magistrate is set aside. The learned Magistrate is directed to pass suitable ORDER :in accordance with law.