Makhan Mandal v. State Of Bihar — 1988 DIGILAW 51 (PAT)

Judgment 1. This is an application for quashing the order dated 8-1-1983 whereby the learned Chief Judicial Magistrate has taken cognizance against the petitioners under Ss.352 and 506 of the Indian Penal Code (in short the Penal Code). 2. The facts, in short, giving rise to this application are that opposite party 2 who is the Sarpanch of Ubchudia Gram Panchayat, sent a written complaint to the Chief Judicial Magistrate, Dhanbad alleging, interalia, that on 29-9-1982 at about 8.30 a.m. the petitioners committed contempt of Court of Gram Kutchery by abusing and using physical force. It was further alleged that on 6-9-1982 one Vijay Bauri had filed a case in the Gram Kutchery against some of the petitioners, namely, Makhan Mandal, petitioner 1, Sahdeo Mandal, petitioner 2, R.N. Mandal, petitioner 4 and Rahan Mandal, petitioner 7 under Ss.323 and 379 of the Penal Code and the above named petitioners were summoned to appear in the Gram Kutchery, but they did not appear and as such warrant of arrest was issued against them. 3. It was further alleged that on 29-9-1982 at about 7.00 a.m. the Chief Officer of the said Panchayat and Bhola Das, the Chief Officer of Udaipur Gram Panchayat along with two volunteers were going to execute the warrant of arrest and when they reached near Basta Badi Tola, they saw the petitioner 1 who came there with his men and threatened and abused the members of the Bench of the Gram Kutchery and he was also demanding back the bi-cycle. The matter was reported to the Police but since the Police did not take any action, the complaint was filed in the Court. 4. On the basis of the said complaint, a report was called for from the Officer in charge of Nirsa Police Station as to whether any case was instituted. The Officer in charge of Nirsa Police Station submitted a report to the effect that no case has been registered but a proceeding under S.107 of the Code of Criminal Procedure (in short the Code) was recommended by the Police on the basis of a Sanha entry No. 651. The learned Chief Judicial Magistrate, on the basis of the said written complaint. found a prima facie case against the petitioners and as such he took cognizance as indicated above and issued summons against them. 5. The learned Chief Judicial Magistrate, on the basis of the said written complaint. found a prima facie case against the petitioners and as such he took cognizance as indicated above and issued summons against them. 5. The learned counsel appearing on behalf of the petitioners has prayed for quashing of the entire criminal proceeding including the impugned order of cognizance on the ground that the non-examination of the complainant on solemn affirmation renders the cognizance order illegal. It was further contended that the complaint petition was bad since it was not filed by a competent person. It was also urged that the complaint petition does not make out any case against the petitioners. Therefore, the entire proceeding including the impugned order is fit to be quashed. 6. On the other hand, it was argued on behalf of the opposite party that the complainant need not be examined because he is a public servant and the complaint petition had been filed in discharge of his official duty. 7. In support of his contention, the learned counsel appearing on behalf of the petitioners has drawn my attention to the provision of S.200 of the Code which reads as follows:- "A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under S.192 : Provided further that if the Magistrate makes over the case to another Magistrate under S.192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them." 8. Sec.202 of the Code has laid down that any Magistrate on receipt of a compliant of an offence of which he is authorised to take cognizance or it has been made over to him under S.192 may, if he thinks fit, postpone issue of process and either inquire into the case himself or direct an investigation to be made by a Police Officer. From a perusal of the aforesaid provisions, it is clear that after a complaint being filed, the Magistrate has two alternatives - (i) either to examine the complainant on oath or (ii) to direct the Police to investigate without taking cognizance. A Magistrate can order investigation under S.156(3) of the Code only at the pre-cognizance stage i.e. to say before taking cognizance under S.190 or taking any action under S.200 or 204 of the Code and where a Magistrate decides to take cognizance under the provisions of the Code, he is not entitled in law to order any investigation under S.156(3) of the Code. Where a Magistrate chooses to take cognizance, he can peruse the complaint and if satisfied that there are sufficient grounds for proceedings, he can also straightway issue process to the accused but before he does so, he must comply with the requirements of S.200 and record the evidence of the complainant or his witnesses. I may point out here that there is a proviso to S.202 which says where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he may postpone the issuance of the process and make inquiry himself regarding the genuineness of the complaint and to find out as to whether there is sufficient ground for proceeding. 9. From bare reading of S.200 of the Code, it is clear that if a complaint is filed by a person other than a public servant, the Magistrate taking cognizance of an offence on complaint must examine the complainant on oath and the witnesses, if any, present there and the substance of such examination must be reduced to writing, but if a complaint is filed in writing by a public servant, then the matter stands otherwise. 10. 10. Proviso to S.200 of the Code says that when the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duty or by a Court, the Magistrate need not examine the complainant and the witnesses. It was argued on behalf of the opposite parties that in the instant case, the complaint in writing was filed by the Sarpanch of a Gram Panchayat who is admittedly a public servant under S.83 of the Gram Panchayat Act. Therefore, the Magistrate need not examine him on oath and on that score, it cannot be argued that the non-examination of the complainant renders the cognizance order illegal. 11. On a plain reading of the proviso to S.200 of the Code, it is, no doubt, clear that if a public servant acting or purporting to act in the discharge of his official duty files a complaint in writing the Magistrate need not examine the complainant. The whole question to be seen in the instant case is as to whether the complaint was filed by a public servant on the discharge of his official duty because admittedly, as I have already indicated that Sarpanch is a public servant as envisaged under S.83 of the Gram Panchayat Act. It was argued on behalf of the petitioners that the complainant has to disclose that he was filing the complaint in the capacity of a public servant but on the facts and in the circumstances of this case, I do not find an substance in this contention. Sarpanch is a public servant. Therefore, whether to disclose or not to disclose will not affect his position. The learned counsel appearing on behalf of the petitioners has vehemently argued that except for the offences mentioned in S.195(a) and (b) of the Code, the examination of the complainant, even if he is a public servant, is necessary. Sarpanch is a public servant. Therefore, whether to disclose or not to disclose will not affect his position. The learned counsel appearing on behalf of the petitioners has vehemently argued that except for the offences mentioned in S.195(a) and (b) of the Code, the examination of the complainant, even if he is a public servant, is necessary. In support of his contention, the learned counsel has relied upon a decision in the case of Kalu Munchi V/s. State of Assam, 1965(1) Cri LJ 424 : (AIR 1965 Assam 29) where it has been held that if the complaint by a Magistrate is not covered by the provisions of S.195 of the Code, it cannot be said to be a complaint filed either by a Court or by a public servant in the discharge of his official duty and thus proviso to S.200 of the Code will not be attracted. In the aforesaid case, it was held that if a Magistrate files complaint otherwise than what is contemplated under S.195 of the Code, then before process can be issued, the complainant has to be examined under S.200 of the Code. The facts of the said case is not applicable in the instant case. In the said case the complaint was filed for taking action under S.188 of the Penal Code. S.188 of the Penal Code would not be attracted to a case where there is no prohibitory order served on a party. A bare order of attachment passed under S.145 of the Code without any prohibitory order does not attract S.188 of the Penal Code. The facts of that case is completely different from the facts of this case. Here in the instant case, the Sarpanch has made a complaint that while the Chief Officers of the Gram Kutchery were going to execute the warrant of arrest, petitioner 1 came with his men in the Kutchery and threatened and abused the Bench of the Gram Kutchery. Therefore, on the written complaint of the sarpanch, cognizance was taken under Ss.352 and 506 of the Penal Code without his examination on oath. 12. Therefore, on the written complaint of the sarpanch, cognizance was taken under Ss.352 and 506 of the Penal Code without his examination on oath. 12. The argument advanced by the learned counsel appearing on behalf of the petitioners that the expression "public servant acting or purporting to act in the discharge of his official duties" occurring in the proviso to S.200 of the Code means only "such public servant" as envisaged under S.195(a) of the Code cannot be accepted because in my view surely it would be a very restricted and narrow interpretation of the words "public servant acting or purporting to act in the discharge of his official duties." The law enjoins a public servant to institute a complaint as provided in the proviso to S.200 of the Code and it comes within the scope of his general duty. In the instant case, the circumstances indicated above clearly rendered it obligatory on the part of the Sarpanch to file a complaint and as such this case will be squarely covered by Cl.(a) of first proviso to S.200 of the Code. The main, objection of the learned counsel for the petitioners was that the complaint in question does not fall under S.195(1)(a) and (b). Therefore, the complaint should be treated as an ordinary complaint and the complainant must have been examined but as I have already indicated above that this argument cannot be accepted as the Sarpanch who being the public servant has a right to file a complaint for an offence which may not come under S.195(1)(a) and (b) of the Code and in that event, it would not be necessary for the Magistrate to examine the complainant as required under S.200 of the Code. Of course, he must, however, follow the procedure as laid down in the Code. Even assuming for the sake of argument that the instant case does not fall within the purview of Cl.(a) to the proviso of S.200, omission to examine the complainant would not vitiate the cognizance of the offence stated in the complaint as it will not constitute a serious legal infirmty resulting in miscarriage of justice so as to warrant quashing of the order. Therefore, I do not find any substance in the first contention of the learned counsel that non-examination of the complainant on solemn affirmation renders the cognizance order illegal. 13. Therefore, I do not find any substance in the first contention of the learned counsel that non-examination of the complainant on solemn affirmation renders the cognizance order illegal. 13. It was next urged that the complaint petition was bad as it vas not filed by a competent person. The Sarpanch being a public servant under the Gram Panchayat Act, in my opinion, is fully empowered to file a complaint. If any occurrence take place within the jurisdiction of a Gram Kutchery then certainly the Sarpanch being the head of the Kutchery is competent to file a complaint before the Chief Judicial Magistrate in writing for contempt of Court or for any other offence. The allegation against the petitioners is of using criminal force against the members of the Bench of the Gram Kutchery. The further allegation against the petitioners is also for criminal intimidation. Prima facie, the complaint petition makes out a case against the petitioners. Therefore, I do not find any substance in any of the contentions raised on behalf of the petitioners. 14. It is, no doubt, true that if no prima facie case has been made out against the accused, proceeding may be quashed to prevent abuse of process of the Court and secure ends of justice, but if the facts are otherwise, this Court will not quash the proceedings at the initial stage. Proceedings at the initial stage can be quashed only if on the face of the complaint no offence is constituted. In other words, the test is that taking, the allegation and the complaint as they are, without adding or subtracting therein, if no offence is made out, the High Court would be justified in quashing the proceeding in exercise of its powers under S.482 of the Code. In the instant case, I find that prima facie case has been made out against the petitioners. Therefore, it would not be justified to quash the order of cognizance at this stage. 15. On a careful consideration and examination of the Ss.190, 195(1), (a) and (b), 200 and 204 of the Code, I do not find any legal infirmity or manifest error resulting in miscarriage of justice so as to warrant quashing of the impugned order of cognizance. 15. On a careful consideration and examination of the Ss.190, 195(1), (a) and (b), 200 and 204 of the Code, I do not find any legal infirmity or manifest error resulting in miscarriage of justice so as to warrant quashing of the impugned order of cognizance. A combined reading of all the aforesaid Sections of the Code would show that there is no obligation on the part of the Magistrate to examine the complainant if a complaint is filed by a public servant acting or purporting to act in the discharge of his official duty. 16. For the reasons stated above, I do not find any merit in this application. It is dismissed accordingly.