Shrinath Singh v. State of Bihar — 1997 DIGILAW 299 (PAT)

JUDGMENT I. P. Singh, J. This is an application under sections 397 and 398 of the Code of Criminal Procedure, 1973 (in short the 'Code'). It is directed against the order dated 22.8.1987 passed in Case No. 5-c/1987 by Shri H. Mochi, Judicial Magistrate, 1st Class, Munger by which the learned Magistrate was pleased to dismiss the complaint petition filed by the petitioner against opposite party nos. 2 to 15. 2. The prosecution case, in short, is that in between the night of 9/10th January, 1987 the petitioner along with his son Nanda Singh and other persons, namely, Muneshwar Singh, Bholi Singh and Bishun Rajak were irrigating the wheat field of Krishna Mandal. At about 11 P.M. the opposite party nos. 2 to 15 came there. Out of them opposite party nos. 2 to 13 happened to be the members of the police force. They ordered for the arrest of the aforesaid four persons. They were apprehended and put on a Jeep which left for Tarapur Police Station. The petitioner informed Dinesh Singh who was also engaged in irrigating nearby field. The villagers were also informed about this un-called for and illegal arrest of four persons. However, on hearing the sound of firing the petitioner and the villagers went to Belhar village where they found that all the four persons were shot dead by the police force. When the petitioner started crying he was threatened by the opposite party nos. 2 to 13. In the morning the petitioner went to the police station for lodging the F.I.R. but the police refused to oblige. The petitioner sent the copy of the F.I.R. to the Superintendent of police through registered post. When no action was taken the petitioner filed a complaint petition before the learned Chief Judicial Magistrate, Munger. 3. The alleged motive behind this occurrence was that Krishna Mandal got some land in village in question (Sesural). This was resented by apposite party nos. 14 and 15. On 23.11.1986 they along with others committed the theft of the pumping machine of Krishan Mandal for which a case was lodged and in that case petitioner cited Muneshwar Singh and Bishnndeo Rajak as his witnesses. The petitioner and these persons were looking after cultivation of Krishna Mandal. Opposite party nos. 14 and 15 resented the same this led to then ghastly incident. 4. The petitioner and these persons were looking after cultivation of Krishna Mandal. Opposite party nos. 14 and 15 resented the same this led to then ghastly incident. 4. The petitioner filed a complaint petition (Case No. 5-e/87) before the learned Chief Judicial Magistrate with respect to the alleged occurrence. He was examined on oath and thereafter the case was transferred to the court of the learned Magistrate named above and an enquiry under section 202 of the Code was ordered. Seven witnesses were examined on behalf of the petitioner complainant who fully supported the case of the prosecution. From their evidences a prima facie case against the opposite party nos. 2 to 15 was made out. The learned Magistrate by the impugned order dismissed the complaint petition under section 203 of the Code. It is against this order that the present revision application has been filed with a prayer that the impugned order be quashed and further enquiry be ordered. 5. It has been contended ha in the enquiry under section 202 of the Code he P.Ws. examined before the learned Magistrate had fully supported the case of the prosecution. It has also been pointed out that while passing the order under section 203 of the Code the learned Magistrate was not authorised under law to look into any extraneous matter such as the tiling of the FIR by some body elas even if it related to the alleged occurrence. It is well settled in law that when the complainant was examined on solemn affirmation the cognizance was already taken by the learned Magistrate in the eves of law. The allegations were very serious in nature and the delay, if any, in loding the complaint petition has been properly explained by the petitioner. In any view of the matter at this stage the delay in filing the case can not result in the dismissal of the complaint petition under section 203 of the Code. On these grounds the aforesaid prayer bas been made for setting aside the impugned order and for ordering further enquiry under section 898 of the Code. 6. I have heard the learned counsel for the parties in detail. I have also perused the impugned order passed by the learned Magistrate. From this order it appears that the learned Magistrate found that P.Ws. 1 to 4 examined before him had fully supported the case of the prosecution. 6. I have heard the learned counsel for the parties in detail. I have also perused the impugned order passed by the learned Magistrate. From this order it appears that the learned Magistrate found that P.Ws. 1 to 4 examined before him had fully supported the case of the prosecution. He also refers the evidence of the complainant PW 5 who is the mother of the deceased Muneshwar Singh. According to her the police had arrested her son while he was irrigating the field of Krishna Mandal. The mothers of Bholi Singh and Dinesh Singh also told her about the arrest of their sons. PW 7 is the mother of the deceased Bishun Deo Rajak. She has also fully supported the case of the prosecution. It, however, appears from page 5 of the impugned order that the learned Magistrate had referred to the copy of the FIR relating to the another occurrence said to have taken place on 23.11.1986. The FIR lodged by the police relating to the present occurrence (Tarapur P.S. Case No. 4/87) was also referred to by the learned Magistrate according to which 4 dacoits (whose named were not disclosed) were killed in a encounter with the police on the bank of the aforesaid river. The learned Magistrate has taken these two F.I.Rs. into consideration and found that the prosecution case as disclosed in the complaint petition was improhable. On these grounds amongst others he dismissed the complaint petition under section 203 of the Code as stated above. 7. At the time of hearing the learned counsel for the petitioner has drawn my attention to the true scope of section 203 of the Code and has pointed out that while passing the order under this section no extraneous material can be looked into or referred to by the learned Magistrate. Also it has been contended that the learned Magistrate can not base his conclusion on extraneous materials and dismiss the complaint petition. The law on this point appears to be well settled and since the parties raised contentions on this score I think it proper to examine the same in detail. 8. In this connection reference may be made to the case of Chandra Deo Singh Vrs. Prokash Chandra Dose (A.I.R. 1963 S.C. 1480). This was a case under the old Code. However, there has been no change in section 203 in the New Code also. 8. In this connection reference may be made to the case of Chandra Deo Singh Vrs. Prokash Chandra Dose (A.I.R. 1963 S.C. 1480). This was a case under the old Code. However, there has been no change in section 203 in the New Code also. In this case the position of the accused in an enquiry under section 202 of the Code has been properly summerised. It has been held that the accused does not come in picture al all till the process is issued, though of course he is not preeluded from being present during inqury either in person or through counselor agent with a view to be formed what is going on. Since, however, the question for consideration under section 202 of the Code is whether be should be caned upon to face the accusation, he has no right to take part in the proceeding nor the Magistrate has any jurisdiction to permit him to do so. Also it was held that permitting an accused to intervene during the enquiry under section 202 of the Code would frustrate its very object and that is why the legislature has made no specific provision permitting an accused to take part in an enquiry. Also it was observed in this case that what ever defence the accused may have will only be enquired into at the trial and not at the stage of the enquiry under section 202 of the Code. No witness at the instance of the accused can be examined at this stage. Thus, clearly broad parameter of enquiry under section 202 of the Code vis-a-vis the position of the accused has been laid down in this decision. It was further held in this case that it was not open to the Magistrate to consider the statements recorded during investigation by the police on the basis of the another FIR lodged or on the basis of any evidence adduced before the Magistrate in another enquiry arising out of the complaint petition filed by one of the accused. It was held that all these were extraneous before him. It was held that all these were extraneous before him. Thus, the law on this point has been laid down very clearly which does not leave any room for doubt that in course of the enquiry under section 202 of the Code the Magistrate can not take into consideration the another FIR either lodged by the police or by one of the accused or any other material brought on recorded by them. Under law the Magistrate has to confine himself to the materials produced before him by and on behalf of the complainant to decide whether or not process should be issued against the accused. 9. In this connection a reference may also be made to the case of Smt. Nagawwa Vrs Shivalingappa Konjalgi ( AIR 1976 SC 1947 ) in which also the scope of an enquiry under section 202 of the code as also the scope of issuing or process under section 204 of the code were considered by the Hon'ble Supreme Court. It was clearly held in this case that in an enquiry under section 202 of the Code the accused has got no locus standi and he can not be heard. Also it was observed in it that the scope of enquiry under section 202 of the Code is extremely limited only to the ascertainment of the truth or falsehood of the allegations made before the court on the basis of the materials placed by the complainant for the limited purpose of finding out whether a prima facie case for issue of process has been made out or not. It is only when the Magistrate finds that the allegations made in the complaint petition and the statements of the witnesses at their face value make out absolutely no case against the accused, he may refuse to issue the process against the accused persons. 10. From the aforesaid authorative pronouncements of the Hon'ble Supreme Court it becomes clear that the learned Supreme Court it becomes clear that the learned Judicial Magistrate could not have dismissed the complaint petition under section 203 of the Code by passing the impugned order since from the reading of the impugned order itself it be comes clear that P.Ws. examined before him under section 202 of the Code had fully supported the cass of the prosecution. examined before him under section 202 of the Code had fully supported the cass of the prosecution. However, by being influenced by the FIR lodged by the police or any case lodged with respect to another incident he thought it proper to dismiss the complaint petition. As stated above the law clearly lays down that no extraneous consideration should be allowed to influence the discrition of the Magistrate while passing an order for the issue of procees against the accused persons under section 204 of the Code. 11. From the detailed discussions made above it becomes perfectly clear to me that the impugned order is liable to be quashed. Accordingly, the impugned order passed by the learned Magistrate dismissing the complaint petition of the petitioner under section 203 of the Code is quashed and further enquiry under section 398 of the code is ordered. The learned Magistrate is directed to proceed in the matter in the light of the observations made above and pass necessary order in this regard.