ANNAPURNA v. K. NARAYAN RAO — 1996 DIGILAW 229 (KAR)

C. N. ASWATHANARAYANA RAO, J. ( 1 ) THE complainant in p. c. No. 58 of 1985 (c. c. No. 1383/3/86) on the file of the court of principal, j. m. f. c. , gulbarga, has preferred this revision petition against an order passed by that court on 29-10-1994 dismissing her complaint under Section 203, cr. P. c. ( 2 ) THE facts of the case have been narrated in detail in an earlier order of this court in criminal petition No. 236 of 1989 dated 12th september, 1994 by Hon'ble Mr. Justice k. b. navadgi. It reads as follows:"3. The facts leading to this petition are as under: the deceased in this case by name siddaramesh, is a journalist by profession. He was publishing a kannada daily newspaper called 'kranti' from gulbarga. He used to write articles in his newspaper against the members of the police force working at gulbarga and about the alleged atrocities of the police and the petitioner-accused k. Narayan (referred to hereinafter as accused ). 4. On 14-2-1984, siddaramesh was returning to his house by his car. On the way and in the vicinity of his house he was fatally assaulted. Annarao examined as P. W. 6 has stated that he heard about the assault of siddaramesh from his munim shambulingappa. Annarao came out. He saw siddaramesh near his car reaching it by walk. Siddaramesh informed annarao that he was assaulted; that he was feeling lot of pain and that he should be removed to hospital. Siddaramesh asked for water. Annarao secured water from his house and gave it. Siddaramesh drank water sitting in his car. 5. Siddaramesh used to drive his own car. It was a fiat car. Annarao did not know driving of a fiat car. He therefore secured his ambassador car and shifted siddaramesh from the car of siddaramesh to his car with the help of persons who had gathered thereby that time. 6. Siddaramesh was conscious and was talking while shifting. He was talking and complaining of pain on the way while being removed to the hospital. Siddaramesh had suffered a wound on his back as a result of assault. 7. Siddaramesh was demanding water all along the way. 6. Siddaramesh was conscious and was talking while shifting. He was talking and complaining of pain on the way while being removed to the hospital. Siddaramesh had suffered a wound on his back as a result of assault. 7. Siddaramesh was demanding water all along the way. After he had reached to the government general hospital some members of the staff attached to that hospital brought a stretcher to the car and removed siddaramesh on the stretcher to the casualty room. 8. The distance between the house of P. W. 6 and the hospital is about 2 to 3 kilometer. 9. Dr. T. m. nataraj examined as P. W. 7 was on duty in the casualty room. He saw siddaramesh and gave an injection. Siddaramesh breathed his last 15 to 20 minutes after the injection was given. 10. According to annarao, siddaramesh was demanding water while removing him, at the room also. He was silent in the room. 11. Annarao lodged the information in the juris dictional police station regarding the occurrence. On the strength of the information, the police registered a case and took up investigation. The further investigation was taken over by the corps of detective, karnataka. Thereafter, the government of Karnataka requested the government of India to entrust the investigation to the central bureau of investigation ('c. b. i, for short' ). The government of India agreed to the request and issued notification. The c. b. i, registered a case in r. c. No. 2 of 1984 and took up investigation. On completion of investigation, the c. b. i, laid charge-sheet against 11 persons including the sub-inspector of police, brahmapur police station, the sub-inspector of police, station bazar police station, gulbarga and some constables. 12. The learned magistrate took the charge-sheet on his file and after complying with the Provisions contained under Section 207 of the code committed the case of the persons shown as accused in the charge-sheet to the court of sessions at gulbarga for trial of the offences. The learned sessions judge registered the case in S. C. No. 2 of 1985 and took up proceedings under sections 227 and 228 of the code. He framed charges against the persons shown as accused in the charge-sheet on 14-9-1988, pursuant to his order dated 17-8-1988 directing the framing of charges. 13. The learned sessions judge registered the case in S. C. No. 2 of 1985 and took up proceedings under sections 227 and 228 of the code. He framed charges against the persons shown as accused in the charge-sheet on 14-9-1988, pursuant to his order dated 17-8-1988 directing the framing of charges. 13. The respondent lodged the complaint against the acused before the learned magistrate on 24-10-1985 i. e. , after submission of the charge-sheet by the c. b. i, against 11 persons before the learned magistrate. 14. According to the respondent, deceased had been murdered at the instigation and active abetment by the accused and that in spite of her statement to the investigating officer about the involvement of the accused, he has not been charge-sheeted along with other 11 persons for trial of the offence of murder. Further according to her, having been informed about the accused having not been sent up for trial along with other 11 persons, she had to approach the learned magistrate with her complaint. 15. The learned magistrate by the order dated 28-10-1985 referred the complaint to the assistant superintendent of police, gulbarga for investigation and report under Section 156 (3) of the code. 16. The respondent feeling aggrieved by the order made by the learned magistrate on 28-10-1985, preferred a revision petition to the court of sessions, gulbarga in criminal revision petition No. 94 of 1995. The learned sessions judge by the order dated 5-11-1985 allowed the revision petition, set aside the order made by the learned magistrate on 28-10-1985 and directed the magistrate to proceed with the complaint under sections 200, 202 and 203 of the code. 17. After disposal of the criminal revision petition, the learned magistrate took up the complaint on 12-11-1985 and adjourned it directing notice to the respondent making the same returnable by 30-11-1985. 18. On 18-11-1985, respondent appeared and sought advancement of the case from 30-11-1985 to that date. 19. The learned magistrate examined the respondent upon oath but in part. Twenty one documents marked as exts. P-1 to p-21 and one material object, a cassette marked as m. o. 1 were received in evidence. On 19-11-1985, the respondent was further examined upon oath exts. P-22 to p-47 were marked. On the same day, krantikumar, son of the respondent was examined as P. W. 2. 20. Twenty one documents marked as exts. P-1 to p-21 and one material object, a cassette marked as m. o. 1 were received in evidence. On 19-11-1985, the respondent was further examined upon oath exts. P-22 to p-47 were marked. On the same day, krantikumar, son of the respondent was examined as P. W. 2. 20. On 10-11-1985, the learned magistrate issued summons to the witnesses as prayed for by the respondent and adjourned the matter. He examined upon oath Dr. Nagalakshmi (p. w. 3) the assistant surgeon, government general hospital, gulbarga who carried over post-mortem examination on the dead body of the deceased between 11. 45 a. m. and 1. 30 p. m. on 13-2-1984. She was examined upon oath on 7-12-1985. R. r. k. chawan the investigating officer in the case registered by the c. b. i, was examined upon oath on 1-2-1986 as P. W. 4, chidambar, a lawyer practising law at gulbarga was examined as P. W. 5 on 4-2-1986. , 21. It may be mentioned that the learned magistrate after taking cognizance of the offence alleged against the accused proceeded to examine upon oath the respondent and her son. The learned magistrate thought it fit to postpone the issue of process against the accused and proceeded to hold an enquiry into the allegations made in the complaint by himself. It was thereafter he examined upon oath Dr. Nagalakshmi, r. r. k. chawan and chidambar. 22. After holding the inquiry, the learned magistrate considered the allegations made in the complaint, the statements of the respondent and her son on oath and the statements of witnesses and formed an opinion that there was sufficient ground to proceed against the accused. In view of the opinion so formed, the learned magistrate by the order dated 10-2-1986 directed summons to the accused making the same returnable by 10-3-1986. Earlier to the said Order, the complaint bore the p. c. No. 58 of 1985. After the learned magistrate commenced proceedings by issuing process, it was numbered as c. c. No. 1353 of 1986. 23. The accused came to this court with a criminal petition challenging the order made by the learned magistrate on 10-2-1986. This court by the order dated 27-1-1987 disposed of the criminal petition with the following observations and order. "8. The magistrate having thought of postponing issue of process, having proceeded to make enquiry under Section 202, Cr. 23. The accused came to this court with a criminal petition challenging the order made by the learned magistrate on 10-2-1986. This court by the order dated 27-1-1987 disposed of the criminal petition with the following observations and order. "8. The magistrate having thought of postponing issue of process, having proceeded to make enquiry under Section 202, Cr. P. C. , it was also, in the circumstances of the case, necessary to record the statement of such witnesses who are likely to give information relevant to the case as now tried to be made out. Although annarao banderwad and the doctor have not been examined, the magistrate himself in exercise of the powers under Section 311 should have called and examined them to ascertain the truth of the statement made by the two witnesses. Having regard to the seriousness of the offence levelled against the police officer of the rank of superintendent of police, it appears, in the given facts and circumstances of the case, the process issued against the accused-petitioners is to be set aside with a direction to the magistrate to summon annarao banderwad and the doctor who first examined and treated the deceased and dispose of the complaint in accordance with law. 9. Accordingly, the revision is allowed. The process as now issued against the accused-petitioner is set aside. The magistrate is directed to summon annarao banderwad and the doctor who first examined and treated the deceased, and dispose of the same in accordance with law". 24. The learned magistrate took up the case pursuant to the directions issued by this court in the above order and examined upon oath annarao as P. W. 6 on 23-6-1987 and Dr. T. m. nataraj as P. W. 7 on 7-7-1987. After p. ws. 6 and 7 were examined the respondent appeared and was further examined upon oath on 6-9-1988. The learned magistrate took up the matter for consideration and by the order impugned in this petition directed process against the accused holding that there was sufficient ground to proceed against the accused for the offence of murder. 25. It appears, by 14-2-1989 the date on which the learned magistrate came to pass the Order, the accused was in judicial custody in some murder case and had been lodged in the prison at coimbatore in the State of tamil nadu. 25. It appears, by 14-2-1989 the date on which the learned magistrate came to pass the Order, the accused was in judicial custody in some murder case and had been lodged in the prison at coimbatore in the State of tamil nadu. The learned magistrate therefore directed issue of body warrant to the accused for being brought and produced before him". ( 3 ) IT was contended in that revision petition on behalf of the accused that the evidence of P. W. 6 and P. W. 7 does not speak about the presence of the complainant and her son p. ws. 1 and 2 in the casualty room at any time after siddaramesh was removed to the casualty room and breathed his last. This court felt that the learned magistrate has not examined this question. It was felt by this court that on that ground an order of remand was necessary. This court observed in para 31 of the said order at page 16 as follows:"31. I feel the ends of Justice would be adequately met if this petition is disposed of setting aside the order impugned herein with a direction to the learned magistrate to consider the question adverted to earlier on the basis of the material brought on record and on the further examination of the respondent on 6-9-1988 and then proceed to exercise his jurisdiction either under Section 203 or 204 of the code as the result of his consideration warrants. If necessary, in the exercise of his jurisdiction it may be open to the learned magistrate to get the accident register maintained in the government general hospital, gulbarga, for perusal of the relevant entries made therein on 14-2-1984. Of course, the fact that p. ws. 6 and 7 have not spoken to the arrival of the respondent and her son at the hospital and their seeing siddaramesh and the fact that P. W. 7 does not speak to the presence of the respondent and her son near siddaramesh when he saw him (siddaramesh) cannot render the evidence of the respondent and her son about the dying declaration unworthy of credit much less. If the learned magistrate were to reach the opinion that there is sufficient ground for proceeding against the accused he has to issue process for the appearance of the accused and then proceed to determine the complaint in accordance with law". If the learned magistrate were to reach the opinion that there is sufficient ground for proceeding against the accused he has to issue process for the appearance of the accused and then proceed to determine the complaint in accordance with law". ( 4 ) IN view of the said finding this court remanded the matter to the learned magistrate setting aside the order which has been passed by him with the following directions:"the learned magistrate is directed to proceed with the complaint in accordance with law considering the question on the basis of the material as to whether the respondent and her son had seen siddaramesh in the casualty room before P. W. 7 went and examined siddaramesh. He may peruse the relevant entries in the accident register maintained in the hospital to ascertain the material timings and other matters bearing on the consideration and determination of the question. It would be open to the respondent to assist the learned magistrate in examining the question. The learned magistrate shall take up the complaint for consideration and determination, in accordance with law and in the light of the observations made in the body of the orders, on 7-10-1994. The respondent may appear on the aforesaid date at 11 a. m. with her counsel before the learned magistrate to assist him in the consideration and determination of the complaint". ( 5 ) AFTER the remand order the learned magistrate took the case on file and summoned the accident register from the general hospital, gulbarga, he however rejected an application filed by the complainant for summoning p. ws. 6 and 7 for re-examination on the ground that they could not be recalled for the purpose of filling up the lacuna. After examining the accident register, hearing the arguments of the learned counsel for the parties and on the basis of the material available on record the learned magistrate came to the conclusion that no prima facie case is made out against the accused by the complainant to register the case and issuing the process. Hence the learned magistrate dismissed the complaint. Being aggrieved by the said order the complainant had preferred this revision petition. Hence the learned magistrate dismissed the complaint. Being aggrieved by the said order the complainant had preferred this revision petition. ( 6 ) IN the grounds urged in the revision petition the complainant has contended that the learned magistrate has erred in giving a finding that the deceased was not capable of making a dying declaration, which was beyond his jurisdiction at this stage. It is contended in this regard the learned magistrate has not correctly understood the scope and implication of the remand order passed by this court in criminal petition No. 236 of 1989. It is contended in such a serious case the learned magistrate ought to have given an opportunity to the complainant to recall p. ws. 6 and 7 as prayed for. It is contended that taking into consideration the grave nature of the offence and the evidence placed before the court the learned magistrate ought to have issued process to the accused and proceeded with the matter. ( 7 ) SINCE there was delay in filing the criminal revision petition, the learned counsel for the complainant had filed it along with an application for condonation of delay i. A. No. 1. By an order dated 8-8-1995 this court dismissed la. No. 1 and consequently the revision petition also. Being aggrieved by the said order the complainant preferred a special leave petition in s. l. p. No. 3978 of 1995 in the supreme court. The Supreme Court allowed the said petition and remanded the matter back to this court with the following directions:"we are of the view that in the facts and circumstances of. This case, the high court should not have dismissed the application for condonation of delay in filing the revision petition before the high court. We send back the case to the high court for hearing the revision petition on merits". ( 8 ) I have heard the learned counsel Sri a. k. subbaiah, for the complainant-petitioner, Sri g. s. vishveshwara, the learned counsel for the first respondent-accused and the learned high court government pleader Sri b. h. sathish, for the 2nd respondent-state and have perused the records. ( 8 ) I have heard the learned counsel Sri a. k. subbaiah, for the complainant-petitioner, Sri g. s. vishveshwara, the learned counsel for the first respondent-accused and the learned high court government pleader Sri b. h. sathish, for the 2nd respondent-state and have perused the records. ( 9 ) BRINGING to the notice of this court the scope of the Provisions under sections 202 to 204, the learned counsel for the petitioner argued that what the trial court ought to have seen at this stage is whether or not there is sufficient ground for proceeding. He argued the learned magistrate instead of considering this question has proceeded to decide the issues involved in the matter and has written an order as though acquitting the accused of the offences alleged, and therefore the impugned order cannot be sustained. With regard to the scope of sections 202 to 204 the learned counsel for the petitioner relied upon two decisions in Smt. Nagawwa v Veeranna Shivalingappa Konjalgi and others , it has been held as follows:"at the stage of issuing process the magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the high court go into this matter in its revisional jurisdiction which is a very limited one". It is not the province of the magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the high court go into this matter in its revisional jurisdiction which is a very limited one". "in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside: (1) whether the allegations made by the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made by the complainant are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceedings against the accused; (3) where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as want of sanction or absence of a complaint by legally competent authority and the like". ( 10 ) IN Debendra Nath Bhattacharyya and others v State of West Bengal and another , It has been held as follows:" (I) an order of dismissal of a complaint under Section 203, Cr. P. C. , 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. If, however, a bare perusal of a complaint or the evidence led in support of it shows that the essential ingredients of the offences alleged are absent or that the dispute is only of 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 of Criminal Procedure Code. (ii) what the magistrate has to determine at the stage of issue of process, is not the correctness or the probabilities of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case, on the assumption that what was stated in the complaint could be true. (ii) what the magistrate has to determine at the stage of issue of process, is not the correctness or the probabilities of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case, on the assumption that what was stated in the complaint could be true. 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 that stage, could only be to determine whether there are sufficient grounds for proceeding further or not. The mere existence of some grounds which could be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. Such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation". relying upon these decisions the learned counsel for the petitioner argued that the learned magistrate in the impugned order has ignored these principles and has examined the issues on their merits and has come to a conclusion that they do not establish the case of the complainant, which is erroneous. The learned counsel argued that the learned magistrate has totally ignored the voluminous evidence placed on record by the complainant. The learned high court government pleader for the 2nd respondent supported the arguments of the learned counsel for the petitioner. He also submitted that the material on record clearly implicate the respondent 1. ( 11 ) PER contra, the learned counsel for the first respondent argued that the learned magistrate has rightly considered the evidence placed on record and has come to the correct conclusion that there are no grounds to proceed against the first respondent. He pointed out that there is a delay of one and half years in filing the complaint. He submitted in the first order passed by this court in criminal revision petition No. 176 of 1986 on 27-1-1987, this court found that the material on record was insufficient to issue process to the first respondent and therefore remanded the matter. It is contended by virtue of two remand orders passed by this court the probability of dying declaration alone was to be considered and the scope of enquiry after remand was only this. He argued that the evidence of p. ws. It is contended by virtue of two remand orders passed by this court the probability of dying declaration alone was to be considered and the scope of enquiry after remand was only this. He argued that the evidence of p. ws. 6 and 7 which was recorded subsequent to the first order of remand does not at all implicate the first respondent and their evidence goes to show that it is impossible to believe that the deceased could have made a dying declaration. He submitted that the evidence of p. ws. 1 and 2 discloses that they could not have come to the spot before siddaramesh died. He argued if on the face of it the incident is highly improbable then process is not to be issued. He pointed out that the witness doddappa, whose statement is recorded under Section 164, Cr. P. C. is not examined in court and the evidence relating to the motive is irrelevant. The learned counsel for the petitioner replying to the arguments of the learned counsel for the 1st respondent, submitted that the remand order passed by this court does not exclude the other material on record. He submitted that even this court has found that the material regarding dying declaration is probable and remanded the matter only for the purpose of the magistrate further examining that aspect, in order to satisfy himself that there are sufficient grounds for proceeding against the first respondent. In view of these arguments of the learned counsels for the respective parties and the guidelines set at in the decision in Smt. Nagawwa's case, supra and debendra nath bhattacharyya's case, supra, which I have already referred to above, it has become necessary for this court to make a reappraisal of the material on record in order to come to the conclusion whether or not there is sufficient ground for proceeding against the first respondent within the meaning of Section 202, Cr. P. C. before proceeding to do so, two more arguments advanced hy the learned counsel for the petitioner have to be considered. P. C. before proceeding to do so, two more arguments advanced hy the learned counsel for the petitioner have to be considered. As submitted by him it is rather difficult to accept the arguments of the learned counsel for the first respondent that the two remand orders passed by this court exclude the other evidence on record and the scope of the enquiry after the second order of remand particularly, is only to find out whether the contention of the complainant that the deceased made a dying declaration as alleged by her is probable or not and can be taken into consideration at this stage. In para 6 of the first remand order passed by this court in criminal revision petition No. 176 of 1986, dated 27-1-1987 it has been observed as follows:"although the magistrate had proceeded to record the statement of all the witnesses cited in the complaint and thereafter issued process, in keeping with the Provisions contained in proviso to Section 202, cr. P. c. but, in the given facts and circumstances of the case, when charge of serious offence were sought to be made against a police officer like superintendent of police, it was also necessary for the magistrate, before issuing process, to have examined annarao banderwad and/or the doctor who treated deceased to ascertain what was the State of mental condition of the deceased when he was removed to the hospital; whether he has conscious and able to make statement. Because that would have been more helpful not only in ascertaining the truth of the statement regarding dying declaration said to have been made by the deceased before p. ws. 1 and 2, but also helpful to the sessions judge committal of the case to form his opinion as to the nature of the offence made out". ( 12 ) FURTHER in para 7, this court observed as follows: "mr. Appa rao, learned counsel for the respondent-complainant, however, submitted that having regard to the fact that, as stated by P. W. 4, during investigation itself when it had transpired that the accused-petitioner had hand in the commission of the offence, it was not necessary for the magistrate to examine them. Appa rao, learned counsel for the respondent-complainant, however, submitted that having regard to the fact that, as stated by P. W. 4, during investigation itself when it had transpired that the accused-petitioner had hand in the commission of the offence, it was not necessary for the magistrate to examine them. Although it would appear from his statement on oath recorded by the magistrate that when the sub-inspector, alleged to be concerned with the offence, had moved for bail before the high court, P. W. 4 had filed objections to his release on bail, on the ground that in the statement recorded under Section 164, cr. P. c. one doddappa had given evidence implicating the s. p. narayan, also, but it does not appear that implication was on the basis of such statement in the nature of dying declaration said to have been made by the deceased". ( 13 ) NO where in the order the court has expressed the opinion that the evidence placed on record in the trial court before the magistrate was insufficient to hold that there was sufficient ground for proceedings against the first respondent. The observations made by this court in the first remand order which are quoted above only go to show the anxiety of this court that when serious allegations of this nature are made against a high ranking police officer like the superintendent of police, the court must have all the material available on record before coming to a conclusion either way, under Section 203 or under Section 204, Cr. P. C. this court therefore directed the magistrate to summon annarao banderwad and the doctor who first examined and treated the deceased and dispose of the complaint in accordance with law. ( 14 ) EVEN in the second remand order in criminal petition no. 236 of 1989, dated 12-9-1994 no where this court has observed that the material on record is not sufficient or has to be discarded so far as the first respondent is concerned. In this regard para 30 of the order at page 15 may be seen. It reads as follows:"there appears to be some force in the submission made by Sri g. s. vishveshwara that the question as to whether the respondent and her son had seen siddaramesh before P. W. 7 went and examined was not examined by the learned magistrate. In this regard para 30 of the order at page 15 may be seen. It reads as follows:"there appears to be some force in the submission made by Sri g. s. vishveshwara that the question as to whether the respondent and her son had seen siddaramesh before P. W. 7 went and examined was not examined by the learned magistrate. Needless to state that the question having a very important bearing on the formation of the opinion by the learned magistrate, as to whether the allegations made in the complaint and the statements made by the respondent and her witness on oath and the result of the inquiry would show about the existence of sufficient ground to proceed against the accused for the offence of murder". ( 15 ) FURTHER in para 31 of the order it has been observed as follows:"of course the fact that p. ws. 6 and 7 have not spoken to the arrival of the respondent and her son at the hospital and their seeing siddaramesh and the fact that p. w, 7 does not speak to the presence of the respondent and her son near siddaramesh when he was with him (siddaramesh), cannot render the evidence of the respondent and her son about the dying declaration unworthy of credit much less ex facie". ( 16 ) LASTLY, in para 32 in the operative portion of the order this court has observed as follows:"the learned magistrate is directed to proceed with the complaint in accordance with law considering the question on the basis of the material as to whether the respondent , and her son had seen siddaramesh in the casualty room before P. W. 7 went and examined siddaramesh". if the entire matter was not open before the learned magistrate, this court would not have made the observations as quoted above. Therefore the argument of the learned counsel for the first respondent that the scope of the enquiry after the remand order is limited to examine the question of dying declaration alone is not correct and cannot be accepted. ( 17 ) AS rightly argued by the learned counsel for the petitioner a perusal of the impugned order goes to show that the approach of the trial court to the matter is not proper and it has not kept in mind the scope of enquiry under Section 202, cr. ( 17 ) AS rightly argued by the learned counsel for the petitioner a perusal of the impugned order goes to show that the approach of the trial court to the matter is not proper and it has not kept in mind the scope of enquiry under Section 202, cr. P. c. in para 4 of the impugned order the learned magistrate has observed that the complainant's case is improbable because on the way from the place of incident to the hospital the deceased has not made known the name of the assailant/assailants to P. W. 6. But the complainant has no such case at all. It is not the case of the complainant that any dying declaration was made by the deceased on the way before P. W. 6. Her specific case is that immediately after the incident when she came to know about it by a telephone call from her neighbour's daughter she rushed to the hospital along with her son P. W. 2 and found her husband alive and in a speaking condition in the casualty room and when she enquired he told her that it is the first respondent who got him assaulted and she should not leave him. It is her case that she reached the hospital by about 10. 45 p. m. and her husband died after about 15 minutes by about 11. 00 p. m. it is her case that the deceased made the dying declaration between the period she came to the hospital and the casualty ward to see him and the time when the doctor P. W. 7 came to treat him, which might have taken 10 to 15 minutes. It is exactly this question which this court wanted the learned magistrate to examine by the remand order and consider whether it also supports the other evidence on record in order to arrive at a proper conclusion under Section 202, cr. P. c. without giving much importance to this aspect. The learned magistrate seems to have diverted his attention on some of the other aspects and has come to the conclusion that the complainant has not established a prima facie case, which is not what is required under Section 202, cr. P. c. without giving much importance to this aspect. The learned magistrate seems to have diverted his attention on some of the other aspects and has come to the conclusion that the complainant has not established a prima facie case, which is not what is required under Section 202, cr. P. c. in para 5 of the impugned order the learned magistrate has observed as follows:"even impartial party who are called to investigate i. e. , c. o. d. or c. b. i. , have also not filed complaint against the accused of this complaint. This case was handed over to three persons/authorities i. e. , police, c. o. d. and c. b. i. they have not made out case of any one of the Section alleged against the accused and not filed the charge-sheet. Of course, the complainant has complained that the deceased was murdered at the instigation and active involvement of the accused, and in spite of her statement, the investigating officers have not involved the accused and accused has not been charge-sheeted along with 11 accused persons for trial". at the end of para 5 he has expressed as though even the further examination of P. W. 2 recorded on 6-9-1988 by the presiding officer as per the remand order was erroneous and ought not to have been done, on the ground that it amounts to filling up lacuna in the complainant's case. In spite of the direction given by this court in the second remand order that it is open to the complainant to be present in court and assist the court in examining the point involved, when the complainant appeared and requested the court to recall p. ws. 6 and 7 for further examination, the learned magistrate refused such a request again on the ground that it would fill up the lacuna in the complainant's case, which he ought not to have done. Again in para 9 of the impugned order the learned magistrate has observed as follows:"therefore, reassessing this point by these evidences, this court is not found any material or important point in this complaint to bring the prima facie against the accused". Again in para 9 of the impugned order the learned magistrate has observed as follows:"therefore, reassessing this point by these evidences, this court is not found any material or important point in this complaint to bring the prima facie against the accused". i therefore find that there is much force in the criticisms made by the learned counsel for the petitioner regarding the impugned order that the learned magistrate has not kept in mind the scope of the enquiry under Section 202, cr. P. c. , and what is required to be examined at that stage. ( 18 ) NOW with regard to the material placed on record before the lower court, first of all we have the evidence of p. ws. 1 to 7. P. w. 1, Smt. Annapurna, is the wife of the deceased. The deceased was a journalist. The motive for the offence alleged is that he has written derogatory articles in his paper about the working of the police in gulbarga city, particularly with reference to the character and conduct of the first respondent. P. w. 1 has spoken in her evidence on that aspect and has also produce various press cuttings in that regard which are marked as exhibits in the case. It is the complainant's case that on account of these writings the police of gulbarga city particularly of brahmapur police station and the first respondent had much grievance against the deceased and as a revenge they involved him in nearly 30 criminal cases, have physically attacked him on more than one occasion, and were trying to do away with his life. The documents produced on record by the complainant with regard to the alleged motive support her case. In her evidence she has referred to the incident on 26-8-1983 when certain police officers from brahmapur police station took her husband on the street all the way assaulting him and she was able to see him only at 5. 00 p. m. on that day with injuries in the hospital she has stated that this was done at the instance of the first respondent. It may be mentioned here that some of the persons who are responsible for this incident whose names have been given by her are the accused in the charge-sheet which has been field by the c. b. i, in connection with the murder of the deceased. It may be mentioned here that some of the persons who are responsible for this incident whose names have been given by her are the accused in the charge-sheet which has been field by the c. b. i, in connection with the murder of the deceased. She has stated after the incident dated 26-8-1983 the deceased began to write more and more about the first respondent in his paper. In para 5 of her deposition she has stated that her husband was complaining to the various authorities including the governor of Karnataka against the first respondent informing them about danger to his life, by him. She has produced copies of some of those letters and they have been marked as exhibits in this case. They corroborate the evidence of the complainant. In para 6 she has stated that, apprehending serious danger to his life by the first respondent her husband spoke to one of his colleagues khadri shamanna, and also to the secretary, d. g. p. , at Bangalore, on phone and the deceased himself has recorded the conversation in an audio cassette which has been produced in the court at m. o. 1 and has been placed before the lower court at the time when the first order came to be passed. In para 8 of her deposition P. W. 1 has stated that at the instance of the first respondent the corporation authorities issued a notice to her husband to vacate the building wherein he was running the newspaper and on account of it her husband had to file a suit and obtain a stay order and ultimately the said show-cause notice was quashed by this court. She has stated her husband used to tell her that he is apprehending danger to his life by the first respondent. ( 19 ) IN para 9 of her deposition, she has spoken about the dying declaration said to have been made before her and her son P. W. 2 by the deceased. According to the allegation in the complaint petition the incident is said to have taken place at about 10. 00 p. m. on 14-2-1984 (see ink page 10 of the paper book ). According to the allegation in the complaint petition the incident is said to have taken place at about 10. 00 p. m. on 14-2-1984 (see ink page 10 of the paper book ). In para 9 of her deposition P. W. 1 has stated within five to ten minutes of the incident she received a phone call from dhakshayani daughter of annarao banderwad a neighbour about the incident, and she asked her to go to the hospital immediately. She has stated she took an auto along with her son P. W. 2 and reached the hospital by 10. 45 p. m. she has stated she found her husband in the casualty room and weeping when she asked him as to what had happened, he informed her that the first respondent got him assaulted with the assistance of some persons in his presence and she should not leave him. In para 10 she has stated after 5 or 10 minutes or so her husband expired. In paras 12 and 13 of her deposition she has stated that she informed about what her husband told her to several police officers, but none of them took any action or recorded her statement. In para 16 she has stated that one of the investigating officers from the c. b. i. chawan, found there was material against the first respondent also and he mentioned about it while filing objections to a bail petitioin of a co-accused. She has produced a certified copy of the said objection statement at ext. P-22. A perusal of ext. P-22 goes to show that the investigating agency found material against the first respondent also regarding the conspiracy to do away with the life of the deceased. The learned counsel for the first respondent argued that it is only hearsay since the investigating officer in filing the objections has only acted upon the records and he has no personal knowledge in the matter. While it is true that the investigating officer had no personal knowledge, what he found as the result of the investigation would be material. Therefore, it cannot be said that the ext. P-22 cannot be looked into at all. In para 17 of her deposition P. W. 1 has tried to explain the delay in filing the private complaint. While it is true that the investigating officer had no personal knowledge, what he found as the result of the investigation would be material. Therefore, it cannot be said that the ext. P-22 cannot be looked into at all. In para 17 of her deposition P. W. 1 has tried to explain the delay in filing the private complaint. She has stated that only after the charge-sheet was filed in the case she came to know that the first respondent had not been sent for trial and thereafter she consulted her Advocate and filed the private complaint. Whether the explanation offered by her can be accepted or not is not a question which has to be considered at this stage. The fact remains that she has offered an explanation for the delay. In her further examination recorded on 6-9-1988, P. W. 1 has stated that after the deceased made the statement before her, the doctor came to the casualty ward. ( 20 ) P. W. 2 kranthi kumar, who is the son of P. W. 1 has alsostated in his evidence that immediately after receiving the phone call from the neighbour on that night himself and his mother reached the hospital in an auto by about 10. 45 p. m. , he has stated that he saw his father admitted in the casualty room in the hospital and he was laying on a stretcher. He has stated he told them that the first respondent in his presence got him assaulted by some persons. In his further examination recorded on 6-9-1988, he was stated that after his father informed about the incident, the doctor came in the casualty ward later on. This witness has also spoken about the motive for the offence and the involvement of the first respondnet, the apprehension about the danger to the life of his father as expressed by his father and the complaint his father has made in that regard to several authorities against the first respondent. Both p. ws. 1 and 2 have stated in their evidence that after the death of siddaramesh the first respondent who came to the hospital, went inside the casualty room and after some time he came out and threatened P. W. 1 stating that he had finished with her husband and if she revealed about it before anybody the same fate will follow her and her children. The learned counsel for the petitioner argued that it amounts to an extra-judicial confession and can be relied upon. Considering the relationship of P. W. 1 and P. W. 2 before whom the first respondent is said to have made the extra-judicial confession with the deceased, it is rather difficult to accept the contention of the learned counsel for the petitioner at this stage. ( 21 ) P. W. 3, Dr. M. s. nagalakshmi, is the doctor who has conducted the post-mortem examination, over the dead body of the deceased. She has stated that she has conducted the post-mortem between 11. 45 p. m. to 1. 30 p. m. she has stated there was an incised wound on the left perietal region and a punctured wound over the back on the left side, the remaining injuries were abrasions and contusion. She is of the opinion that injury No. 5, that is, punctured wound on the back of the deceased is sufficient to cause the death of the injured. She has been recalled and has been further examined on 2-6-1988. At that time she has stated that looking to the nature of injuries on the dead body she is unable to say whether the deceased was in a position to speak immediately prior to his death. She has stated that looking to the nature of injuries on the dead body she is of the opinion that the deceased would have been alive for about 15 minutes after the incident. This does not appear to be correct because the material on record goes to show that while the incident took place at about 10. 15 or 10. 30 p. m. , the deceased was alive till about 11. 00 p. m. ( 22 ) P. W. 6, annarao, is the neighbour of the deceased who removed him to the hospital immediately after the incident. He has stated in his evidence that the deceased was asking for water while he was being removed to the hospital room also, and then he was silent in the room. This evidence to some extent, corroborates the evidence of p. ws. 1 and 2 that when they came to the casualty ward immediately after receiving information on phone, siddaramesh was alive. ( 23 ) P. W. 4, r. r. k. chawan, is one of the investigating officers. This evidence to some extent, corroborates the evidence of p. ws. 1 and 2 that when they came to the casualty ward immediately after receiving information on phone, siddaramesh was alive. ( 23 ) P. W. 4, r. r. k. chawan, is one of the investigating officers. He has spoken about the objections filed by him to the bail petition of the other accused as per ext. P-22. P. w. 5, chidambar is an Advocate who defended the deceased against the show-cause notice issued by the gulbarga corporation asking him to show-cause why he should not be evicted from the premises where he was running the paper. He has stated the original notice issued to the deceased in that connection goes to show that a copy of it has been marked to the superintendent of police, gulbarga and at that point of time the first respondent was the superintendent of police, gulbarga. A copy of the said notice dated 18-10-1983/26-10-1983 has been produced on record. The evidence of this witness relates to the motive for the alleged offence as against the first respondent. ( 24 ) P. W. 7, Dr. T. m. nataraj, is the medical officer who has first seen the deceased and treated him. He has stated in his evidence that by about 11. 00 p. m. on that day annarao banderwad approached him in the hospital informing that he has brought the kranti editor siddaramesh and he has been assaulted and injured. He has stated that he instructed the ward boy to bring him, the injured was taken into the casualty room by the ward boy and he attended on the injured in the casualty room. He commenced to examine him by 11. 00 p. m. he has stated within 5 or 10 minutes after annarao banderwad gave the information the injured was shifted to casualty room. He has stated on observing him he found his general condition to be very bad, he was gasping and profusely bleeding. His blood pressure was not recordable. He treated him as an emergency patient and injected him with adrenaline liquid. The patient had an incised wound on the back. The learned counsel for the first respondent relied on these statements of this witnessses and submitted that the alleged dying declaration is highly improbable and almost impossible looking to the condition of the patient as stated by this witness. The patient had an incised wound on the back. The learned counsel for the first respondent relied on these statements of this witnessses and submitted that the alleged dying declaration is highly improbable and almost impossible looking to the condition of the patient as stated by this witness. But in the very next sentence the witness has stated that he cannot give the exact period for which the injured could have been conscious in cases of such injuries as sustained by him. He cannot give it even approximately. He has stated that persons with injuries like that of siddaramesh are not likely to loose consciousness earlier than those who have sustained injuries like head injuries. He has stated that he did not notice any head injuries on siddaramesh. He has further stated that he has observed some patients being conscious for some time, who had sustained similar injuries as those of siddaramesh. He has also come across patients who have survived after sustaining similar injuries. He has stated the injuries were about six hours old and when he first observed the blood was still oozing. He has stated siddaramesh died by 11. 15 p. m. and he treated him for 15 minutes. It goes to show that this witness came into the casualty room at 11. 00 p. m. it is in the evidence of both P. W. 1 and P. W. 2 that they reached the hospital by an auto at 10. 45 p. m. and immediately they met the siddaramesh in the casualty ward and he was alive at that time. Even the evidence of P. W. 6 annarao, goes to show that when the patient siddaramesh was being shifted into the casualty room on the stretcher on the way he was asking for water, thereby indicating that the patient was alive and was able to talk even at that time. These facts support the argument of the learned counsel for the petitioner that the case of the complainant that siddaramesh made the dying declaration is not improbable or impossible. ( 25 ) IN answer to a court question this witness has stated in his evidence that the injured was not in a position to talk by the time he attended him to examine him immediately. ( 25 ) IN answer to a court question this witness has stated in his evidence that the injured was not in a position to talk by the time he attended him to examine him immediately. This is not inconsistent with the plea of the complainant that a dying declaration was made, because, as we have seen from the above discussion, the evidence of p. ws. 1, 2 and 6 goes to show that at 10. 45 p. m. p. ws. 1 and 2 went into the casualty room where siddaramesh had been admitted and he was alive at that time. We have also seen that P. W. 7 came into the casualty room for the first time for treating the patient at 11. 00 p. m. and he died after 15 minutes after the treatment. The doctor has stated that he cannot say for how long siddaramesh was conscious after sustaining the injuries. It is every important to note that he has not stated in his evidence that siddaramesh was unconscious when he saw him for the first time though he has stated that his general condition was poor and he was not in a position to speak. He has stated in his evidence that he had tried to ascertain whether the injured was in a position to talk, but he was not in a position to talk. The learned counsel for the first respondent relied on this answer also. This answer is also not inconsistent with the stand taken by the complainant because, that condition is only from the time when the witness entered into the casualty room at 11. 00 p. m. there is nothing in the evidence of P. W. 7 to suggest that earlier to 11. 00 p. m. the injured was unconscious or was not in a position to speak. In this regard the learned counsel for the petitioner relied upon two decisions. In Prakash and another v State of Madhya Pradesh, it has been held as follows:"murder conviction on basis of dying declaration victim alive for about half an hour after assault absence of medical evidence to indicate that he was not in a position to make dying declaration victim knowing assailants reasonable to expect that he would give names of assailants to his family members at first opportunity dying declaration could be relied upon". submitting that there is no inconsistency between the evidence of p. ws. 1, 2 and 6 on the one hand and the evidence of P. W. 7 on the other hand, the learned counsel for the petitioner relied upon the decision in Piara Singh and others v State of Punjab, in the said decision it has been held as follows:"where there is a glaring inconsistency between direct evidence and the medical evidence in respect of the entire prosecution story, that is undoubtedly a manifest defect in the prosecution case. This however is not the position here. There is no inconsistency between the direct and the medical evidence. What has happened is that two experts, namely, Dr. Jatinder singh and Dr. Paramjit singh had differed in their opinions. The high court rightly observed that in view of difference of opinion between the two experts the evidence of Dr. Jatinder singh must be preferred as eye-witnesses whose evidence is both reliable and trustworthy and is also supported by other circumstances proved in the case". further, quoting from a decision of the Calcutta high court, the Supreme Court has observed as follows:"in the Case of the Queen v Ahmed Ally , a division bench of the Calcutta high court in a somewhat similar situation observed as follows: "dr. Duncan may have given his evidence like an intelligent man, but it is not the proper way to try a case to rely on mere theories of medical men, or skilled witnesses of any sort against facts positively proved". "the evidence of a medical man, or other skilled witness, however eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, however confidently he may speak, is ordinarily a more fallible. Human knowledge is limited and imperfect". these two decisions fully support the arguments of the learned counsel for the petitioner and go to show that the theory of dying declaration put forward by the 'complainant is not im- probable. There is no reason to throw away such a contention of the complainant at this stage. ( 26 ) NO doubt, in para 6 of the impugned order the learned magistrate has observed that p. ws. 6 and 7 have not spoken about the presence of the complainant and her son in the casualty room at any time after siddaramesh was admitted into the casualty room. ( 26 ) NO doubt, in para 6 of the impugned order the learned magistrate has observed that p. ws. 6 and 7 have not spoken about the presence of the complainant and her son in the casualty room at any time after siddaramesh was admitted into the casualty room. The learned magistrate has expressed that therefore the deceased giving dying declaration before the complainant and her son is not a believable fact. The learned magistrate has clearly erred in giving such a finding at this stage. As rightly submitted by the learned counsel for the petitioner, whether the fact that p. ws. 6 and 7 have not spoken about the presence of p. ws. 1 and 2 in the casualty room, is fatal to the theory of dying declaration pleaded by the complainant is a question that has to be answered at a latter stage of trial and not at this stage. This fact at this stage does not destroy the complainants case. It may have an effect on the credibility of p. ws. 1 and 2 at the regular trial. ( 27 ) UNFORTUNATELY, in para 6 of the impugned order the learned magistrate has made the mistake of saying that the complainant has not pleaded the fact that her husband made a dying declaration in the complainat petition. It is not correct. Such a case has been specifically put forward by the complainant in the complaint petition (see page 11 of the paper book ). ( 28 ) REFERRING to the accident register which was summoned subsequent to the second remand Order, in para 10 of the impugned order the learned magistrate has observed that in the accident register there is an entry which shows that the patient was brought to the hospital at 11. 00 p. m. the patient was examined at that time, his condition is mentioned and it is also mentioned that he expired at 11. 15 p. m. the learned magistrate has also observed that in the accident register the name of P. W. 6, annarao is mentioned. He has further observed that if the complainant and P. W. 2 were to be present at that time their names also would have been included along with the name of P. W. 6 in the accident register. He has further observed that if the complainant and P. W. 2 were to be present at that time their names also would have been included along with the name of P. W. 6 in the accident register. This reasoning is not correct, in as much as it is not the case of the complainant at all that p. ws. 1 and 2 came along with P. W. 6 or simultaneously to the hospital. It is her clear case that after receiving the telephone message about the removal of her husband from the spot of incident to the hospital, herself and her son P. W. 2 came in an auto and reached the hospital at 10. 45 p. m. the time factor namely the patient was examined at 11. 00 p. m. mentioned in the accident register is not conclusive because P. W. 7 himself has stated in his evidence that after he received information about bringing the patient to the hospital from P. W. 6, he p. sked the ward boy to remove the patient to the casualty room and it was done in 5 or 10 minutes and then he went into the casualty room. What is important to see is the absence of the names of p. ws. 1 and 2 in the accident register does not destroy the complainant's case at this juncture. ( 29 ) NOW having in view, the facts of the case and the evidence placed on record by the complainant and applying the criteria evolved in the decision in Smt. Nagawwa's case, supra and debendra nath bhattacharyya's case, supra, which have been referred to above in paras 10 and 11, it may be seen that it is not a case in which it can be said that there are no sufficient grounds for proceeding with the matter, within the meaning of Section 202 (1), Cr. P. C. as rightly submitted by the learned counsel for the petitioner the learned magistrate while passing the impugned order has not kept in mind these criteria and has dealt with the matter as though at the time of the final decision of the case. The impugned order therefore cannot be sustained and has to be set aside. ( 30 ) FOR the reasons stated above the revision petition is allowed and the impugned order is hereby set aside. The impugned order therefore cannot be sustained and has to be set aside. ( 30 ) FOR the reasons stated above the revision petition is allowed and the impugned order is hereby set aside. The learned magistrate is directed to take the case on record and issue process to the first respondent under Section 204, Cr. P. C. and proceed to dispose of the matter in accordance with law, bearing in mind the offences for which the complaint-petition has been filed and the Provisions under chapter 16, Cr. P. C. --- *** --- .