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Rajasthan High Court · body

1995 DIGILAW 1006 (RAJ)

Pankaj v. State of Rajasthan

1995-11-14

R.R.YADAV

body1995
Honble YADAV, J. –The petitioner has filed the present Misc. Petition under Sec. 482, Cr.P.C. against the order dated 5.9.1995 passed by the learned Magistrate on the sole ground that once a complaint has been filed under Sec. 200, Cr.P.C. and the learned Magistrate has recorded the statement of the complainant and one of his witness under Sec. 202, Cr.P.C. then in such a situation, he has no jurisdiction whatsoever to send the case for further enquiry by the police station, Mahamandir, Jodhpur. (2). Brief facts necessary to be noticed for decision of the present petition are that the present petitioner filed a complaint on 25.8.95 alleging therein that on the same day, at about 10.40 A.M., he has gone to District Consumer Forum Office in connection with his complaint against the official of the District Consumer Forum, which he has made to the State Consumer Forum. It is alleged that so-called accused, who is a responsible Public Officer gave him signal to come out from the office and with anger caught hold of his hand. It is further alleged that the accused took him out-side the boundary of the office of the District Consumer Forum and slapped him twice or thrice. It is further alleged that the complainant was saved due to intervention of Shri Bhikam Chand Pareekh Advocate, Shri Akshay Pareekh Advocate and one boy Mr. Sudheer Kapoor. (3). After receipt of complaint, the learned Magistrate fixed 26.8.95 for enquiry. On 26.8.95, the complainant was examined and the case was posted on 5.9.95 for further evidence. On 5.9.95, the complainant examined one witness namely Sudheer Kapoor and expressed his desire not to examine any other witness. (4). Looking into the statements of the complainant and his aforesaid witness, learned Magistrate passed the impugned order directing the Police Station, Mahamandir, Jodhpur to make further enquiry and report as envisaged under Sec. 202, Cr.P.C. (5). I have heard learned counsel for the petitioner and perused the impugned order dated 5.9.95 as well as order-sheets dated 25.8.95 and 26.8.95. (6). In my considered opinion, the aforesaid argument of the learned counsel for the petitioner is wholly mis-conceived and fallacious. The mandatory provisions contemplated under Sec. 202, Cr.P.C. empower the Magistrate either enquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit. (6). In my considered opinion, the aforesaid argument of the learned counsel for the petitioner is wholly mis-conceived and fallacious. The mandatory provisions contemplated under Sec. 202, Cr.P.C. empower the Magistrate either enquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit. For proper appreciation of the argument of the learned counsel for the petitioner, the mandatory provisions as contemplated under Sec. 202, Cr.P.C. are reproduced below :– ``Postponement of issue of process :– (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Sec. 192 may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation 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: Provided that no such direction for investigation shall be made;– (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Sec. 200. (2) In an inquiry under Sub-sec. (1), the Magistrate may, if he thinks fit take evidence of witnesses on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under Sub-sec. (1) is made by a person not being a police officer, he shall have for the investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant. (7). A deeper understanding of the aforesaid Section 202, Cr.P.C. clearly indicates that a Magistrate is not called upon to record the reasons for postponement of the issue of process if he is not satisfied from the statement of the complainant and his witness. (8). (7). A deeper understanding of the aforesaid Section 202, Cr.P.C. clearly indicates that a Magistrate is not called upon to record the reasons for postponement of the issue of process if he is not satisfied from the statement of the complainant and his witness. (8). In fact, every Magistrate is under legal obligation under the aforesaid Section to ensure that no person should be compelled ; to face criminal charge unless he is satisfied that there is a prima facie case for issuing process against the accused. In the present case, the learned Magistrate in order to avoid vexatious prosecution against the responsible public officer has ordered enquiry under Sec. 202, Cr.P.C. by the police station Mahamandir, Jodhpur which is eminently just and proper. In my considered opinion, a complaint cannot be sent for enquiry or investigation under Sec. 202, Cr.P.C. unless the complainant and his witnesses are examined on oath. (9). It is well to remember that when a complaint is made to the Magistrate under Sec. 200, Cr.P.C. he has two options; he may refer the complaint to the police for investigation under sub- sec. (3) of Sec. 156 of Chapter XII of the Code of Criminal Procedure treating the complaint as First Information Report or he may examine the complainant and his witnesses on oath and then refer the matter to the police for enquiry and report as contemplated under Sec. 202, Cr.P.C. (10). It is true that in such cases where the Magistrate has recorded the statements of the complainant and his witness, he cannot direct the police to investigate the case under sub-sec. (3) of Sec. 156 of Chapter XII of the Code of Criminal Procedure treating the complaint as First Information Report. Here is the present case, the learned Magistrate has not directed the police station Mahamandir, Jodhpur to investigate the case under sub- sec. (3) of Sec. 156 of Chapter XII of the Code of Criminal Procedure treating the complaint of the complainant-petitioner as First Information Report but he has simply sent the case for enquiry and report under Sec. 202, Cr.P.C., which is perfectly legal. (11). (3) of Sec. 156 of Chapter XII of the Code of Criminal Procedure treating the complaint of the complainant-petitioner as First Information Report but he has simply sent the case for enquiry and report under Sec. 202, Cr.P.C., which is perfectly legal. (11). There is nothing to indicate under Sec. 202, Cr.P.C. that once a Magistrate has started the enquiry into the case himself, he could not direct further enquiry to be made by the police officer or by such other person as he thinks fit except in those cases where it appears to him that the offence complained of is triable exclusive by the court of Session. In disputably, the present case is not triable by a court of Session. (12). In my humble opinion, the learned Magistrate has not committed any jurisdictional error in exercise of his judicial discretion by directing enquiry and report by the police station Mahamandir, Jodhpur. No irregularity has been brought to my notice in the impugned order, which can be said to have resulted in the miscarriage of justice. I do not consider it proper to substitute my own discretion to that of Magistrate, who has exercised his discretion judiciously. As a result of the aforesaid discussion, the instant Misc. Petition is hereby dismissed at admission stage in limine.