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1995 DIGILAW 671 (RAJ)

Roshan Lal v. P. Hemchandran

1995-07-27

ARUN MADAN

body1995
Honble MADAN, J. – Heard the learned counsel for the petitioner. The petitioner has preferred the present petition under Section 482 Cr.P.C. against the order dated 28th February, 1995 passed by the Civil Judge (Jr.Div.) & Judicial Magistrate, First Class, Khetri in a case under Section 341/342/349/323/504 IPC and Section 3 of SC/ST(Prevention of Atrocities) Act, arising out of FIR No. 16/94 registered with Police at Khetri, whereby the police on investigation had found that no case is made out against the accused and had accordingly drawn-up the Final Report dropping proceedings against the accused and closing the investigation which was accepted by the learned Magistrate. The learned Magistrate had forwarded the aforesaid complaint to the concerned Police Station for investigation wherein an FIR was registered against the accused as referred to above, and the Police ultimately filed a Final Report in the matter. (2). It has further been contended on behalf of the petitioner that the petitioner filed a complaint under the aforesaid provisions of law for commission of offence before the learned Magistrate on 14.2.94. Since the learned Magi- strate was prima-facie not satisfied on the basis of the evidence recorded under Section 200/202 Cr.P.C., he had accordingly directed the police to make further investigation so as to ascertain the veracity of truth regarding offence committed by the accused since a criminal case was registered against the accused, as referred to above. (3). The grievance of the petitioner is that the learned Trial Court had passed the impugned order illegally and the same is not sustainable as being contrary to the provisions of law as also the facts of the case since the learned Magistrate had failed to consider that apart from the material placed on the record, prima-facie case had been made out for summoning the accused-res- pondent. It has been further contended by the learned counsel for the petitioner that the evidence on the basis of which the police had closed the case by drawing up the Final Report could only be looked into and examined by the competent Court and not by the learned Magistrate and the learned Magistrate has abused the process of the Court. It has further been contended that the respondent is an influential official and he has misused his powers in getting the Final Report. It has further been contended that the respondent is an influential official and he has misused his powers in getting the Final Report. If the material available on the record is to be taken into consideration then it is proved that a prima-facie case is established for summoning the accused. (4). In support of his contentions advanced at the bar, the learned counsel for the petitioner has placed reliance upon the judgments of this Court in the matters of Mst.Achna vs. State & Anr. (1), Lumba Ram vs. The State (2), and Sheoram Singh & 4 Others vs. State of Rajasthan (3). (5). In the matter of Mst. Achna vs. State (supra) the question which had arisen for consideration of this Court was as to whether in a given case where the challan had been filed by the police against the accused and the Final Report had already been submitted against the petitioner and the complaint was filed on the basis of which cognizance was taken by the learned Magistrate, it was held by this Court that there is no bar in the Code for filing a complaint against a person against whom police had already submitted the Final Report. If the Court is satisfied during the inquiry of the complaint that prima-facie case has been made out for summoning the accused, the Court is competent to take cognizance against the accused. (6). The aforesaid proposition of law as laid down by this Court evidently implies that it is open to the Court to take cognizance of the matter against the accused on the basis of evidence so recorded and it further implies that it is not incumbent upon the trial court that it must summon the accused which it may do so if the evidence on the record necessiates summoning of the accused. (7). Likewise in the matter of Sheoram Singh vs. State (supra) the same question had arisen for consideration of this Court and it was held with refe- rence to Section 190 of the Code that the Magistrate is empowered to take cognizance of a case in which the police has recommended that no offence is made out and also against the accused for which the police has recommended that no case is made out. While in agreement with the aforesaid view of this Court, I am of the considered opinion that no doubt the Magistrate concerned is empowered to take cognizance under Section 202 Cr.P.C., but it is not incumbent upon the Magistrate that he must take cognizance of the offence against the accused in view of the fact that where he has referred the matter for investigation of the police and after receiving the report from the Investigating Agency he finds that no case is made out for summoning the accused when Final Report has been drawn up by the Police for closing the investigation against the accused. (8). In the matter of Lumba Ram vs. State(supra) the question which had arisen for consideration of this Court was with reference to Section 173 and 190 (unamended Cr.P.C). It was held by this Court that the Magistrate may take cognizance even though the police report is negative. It was further held that recording of evidence before taking cognizance is not necessary. Thus position has changed after the amendment of the Code since Section 200 which has been inserted in the new amended Cr.P.C. specifically provides for recording of the evidence before summoning the accused while Section 202 of the Code deals with postponement of the issue of process. Section 200 and 202 of the Code are reproduced hereinbelow :– "200. Thus position has changed after the amendment of the Code since Section 200 which has been inserted in the new amended Cr.P.C. specifically provides for recording of the evidence before summoning the accused while Section 202 of the Code deals with postponement of the issue of process. Section 200 and 202 of the Code are reproduced hereinbelow :– "200. Examination of complaint.– 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 Magis- trate 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 Sec.192: Provided further that if the Magistrate makes over the case to another Magistrate under Sec. 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them." "202.Postponement of issue of process.– (1) Any Magistrate, on receipt of a complaint of an offence of 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-section(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 exa- mine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in- charge of a police station except the power to arrest without warrant." (9). I have examined the contentions advanced by the learned counsel for the petitioner at the Bar in the light of the provisions contained in the Cr.P.C. particularly with reference to Section 200 read with Section 202 Cr.P.C. Section 200 deals with the examination of a complaint by the Magistrate before taking cognizance of an offence and the learned Magistrate is empowered to examine upon oath the complainant as well as the witnesses present before the Court, if any, and the substance of such case shall be reduced to writing and shall be sent by the complainant and the witnesses and also the Magistrate. Under Sec.200, if after recording the preliminary evidence at the pre-summoning stage, if the learned Magistrate is of the opinion that prima- facie no case is made out for summoning the accused, he may dismiss the complaint and if at the same time he finds that the case is fit to be taken cognizance of the offence against the accused, he may issue the process by summoning the accused. Section 202 Cr.P.C. deals with the postponement of issue of process. It is provided in Sub-section(1) of Section 202 that if any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which he has made offer to him under Sec. 192 Cr.P.C., may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct that investigation be made by a police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for pro- ceeding against the accused. (10). (10). A plain reading of the aforesaid provisions makes it explicitly clear that it is not incumbent upon the Magistrate to summon the accused if on the examination of the evidence tendered before him by the complainant and after the perusal of the evidence of the witnesses so recorded, the learned Magistrate comes to the conclusion that no case has been made out by the complainant to summon the accused and in that event it is not incumbent upon the Magistrate that he must take cognizance of the matter by summoning the accused. In other words it is the subjective satisfaction of the Magistrate concerned to summon the accused or not to summon the accused as he may deem fit and proper in accordance with the facts and circumstances of each particular case and also keeping in view the evidence tendered on the record. It, however, goes without saying that the discretion has to be exercised judiciously in accordance with law and on the basis of the sound reasoning by the Magistrate concerned. (11). After hearing the learned counsel for the petitioner and after examining the record as well as the Final Report which has been filed by the police against the accused, as referred to above, and which has also been reproduced in this Misc. Petition, I am of the considered opinion that the impugned order dated 28-2-95 passed by the Civil Judge (Jr.Div) & Judicial Magistrate, Ist Class, Khetri, does not suffer from any illegality, impropriety or infirmity and it does not call for any interference by this Court under Sec.482 Cr.P.C. The Cr.Misc. Petition being devoid of merit is accordingly dismissed.