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2000 DIGILAW 1280 (PAT)

Mostt. Sibia Devi v. Prahlad Rajak

2000-11-30

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. This revision application is directed against the order dated 22.7.1997 passed by the Chief Judicial Magistrate, Nalanda at Biharsharif in Complaint Case No. 291/C of 1990 under which the learned Magistrate, after inquiry into the complaint-petition filed by the petitioner, had dismissed the same under Sec. 203 of the Code of Criminal Procedure ("the Code", in short). 2. Before dwelling upon the arguments that have been advanced certain facts may be noticed. 3. The complainant Sibia Devi filed a complaint-petition against all the 12 opposite parties which also included some Police Officers alleging therein that on 26.5.1990 she saw vehicles including tractor coming to the village and accused-persons alongwith certain unknown persons with spade, Gaita, iron rods etc. in hands came down out of which she identified Sitara Khan, a Police Officer. This Sitara Khan named certain persons and said that their houses should be searched. The Officer also ordered that the articles of those houses should also be taken away. The allegation is that thereafter, they entered into various houses, destructed portions of the house and took away large number of articles including grains and ornaments, as per Annexure-2 to the complaint-petition and then went away. The Harijan accused (Opposite Party Nos. 7 to 12) also started taking the grains and keeping that in their houses. 4. After examination of the complainant on solemn affirmation, the learned lower Court postponed issuance of process and directed for conduct of inquiry in which 8 witnesses were examined on behalf of the complainant and, thereafter, by order dated 22.7.1997 the learned Magistrate dismissed the complaint. While dismissing the complaint-petition, the learned lower Court appears to have relied upon following points: (I) Though many other persons were said to be aggrieved persons but all the witnesses who have been examined except one, were women. (II) All the accused persons were Government servants and they were on official duty but no sanction order under Sec. 197 of the Code was obtained by the complainant. Learned Court also mentioned that it was admitted fact that a dacoity was committed in the village on the date of occurrence for which the accused, persons were conducting investigation in the village by searching the houses. 5. It may also be noticed that this application against opposite party Nos. Learned Court also mentioned that it was admitted fact that a dacoity was committed in the village on the date of occurrence for which the accused, persons were conducting investigation in the village by searching the houses. 5. It may also be noticed that this application against opposite party Nos. 1, 3, 4, 5 and 6 stood dismissed for non-compliance of the peremptory order of this Court dated 18.11.1998. 6. The opposite parties, who were made accused in the complaint, petition can be placed in two categories, the first consisting of Opposite Party Nos. 1 to 6 who admittedly were public officials working in the Police Department whereas, also admittedly, Opposite Party Nos. 7 to 12 were not holding any Public Office. Obviously, the learned lower Court has committed error of record when it recorded that all the accused-persons were public officers. 7. In-so-far as Opposite Party Nos. 1 to 6 are concerned, this revision application having been dismissed as against 5 of them, the impugned order as against them has become final. This leaves only Opposite Party No. 2 A. Rahman, Deputy Superintendent of Police. 8. In so far as Opposite Party No. 2 Sri A. Rahman is concerned, none has appeared on his behalf to argue his case. 9. However, from the evidence of witnesses examined in course of inquiry under Sec. 202 of the Code, it will transpire that none of those witnesses had named A. Rahman. Against that, the argument on behalf of the petitioner was that the witnesses have supported the case of the complainant on other material points such as the accused-persons coming in the village, entering into the houses, indulging destruction of the houses and about looting away of the properties belonging to the inmates of those houses. It was argued that in view of such support since the complaint-petition mentioned the name of the accused who was also named by the complainant in her statement under solemn affirmation that was sufficient to summon this accused to face the trial. 10. It was argued that in view of such support since the complaint-petition mentioned the name of the accused who was also named by the complainant in her statement under solemn affirmation that was sufficient to summon this accused to face the trial. 10. Sec. 202 of the Code empowers any Magistrate who is authorised to take cognizance, if he thinks fit, to postpone the issuance of process against 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 purposes of deciding whether or not there is sufficient ground for proceeding. This stage comes after the complaint-petition has been filed and complainant, and the witnesses present, if any, have been examined under Sec. 200 of the Code. 11. Sec. 203 of the Code provides that if, after considering the statements on oath, (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Sec. 202 of the Code, Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. 12. It will, therefore, appear that for passing an order under Sec. 203 of the Code the Magistrate is not only to consider the statement on oath of complainant and also of the witnesses then present but also and the result of the inquiry or the investigation made under Sec. 202 of the Code and thereafter, the Magistrate is to come to a conclusion if there was sufficient ground for proceeding. If he finds that there is sufficient ground for proceeding the Magistrate will proceed under Sec. 204 of the Code or, otherwise, will dismiss the complaint. 13. Therefore, to argue that even if material points, by the evidence in course of inquiry or investigation, have not been substantiated even prima facie, the Magistrate is bound to order issuance of process under Sec. 204 of the Code on the basis of the averments in complaint-petition and statement of the complainant, that would intend to make the provision under Secs. 202 and 203 of the Code virtually redundant. This is particularly so when in the complaint-petition the complainant had claimed to identify only Sitara Khan out of public servants but didnt claim to have identified Opposite Party No. 2. 14. 202 and 203 of the Code virtually redundant. This is particularly so when in the complaint-petition the complainant had claimed to identify only Sitara Khan out of public servants but didnt claim to have identified Opposite Party No. 2. 14. it is true that cognizance is taken of offence but when it comes to issuance of summons or warrant of arrest under Sec. 204 of the Code the same is issued against an individual accused against whom the Court has found that there was ground for further proceeding. Therefore, prima facie evidence of involvement of such individual should come before he is summoned to face the trial. 15. Obviously, order under Sec. 202 of the Code is passed when the Magistrate finds that further materials are required before it could be decided as to whether to dismiss the complaint or to summon the accused. Therefore, when an inquiry is ordered under Sec. 202 of the Code, it is obvious that the materials provided under the complaint-petition and in the statement of the complainant under solemn affirmation the same have not been found sufficient by the Magistrate to order issuance of summons or warrant of arrest against the accused. 16. It is under such circumstance, that while deciding as to whether or not to proceed further against accused some further materials are required in course of inquiry. 17. In view of the aforesaid, when none of the witnesses of the complainant who have been examined in course of inquiry have named A. Rahman nor even had stated that an Officer in the rank of Dy. S.P. was present, I do not find that further inquiry could be ordered in-so-far as Opposite Party No. 2 A. Rahman is concerned. 18. Now coming to the case of the complainant against the accused Nos. 7 to 12 who are also Opposite Party Nos. 7 to 12, it will appear that the witnesses while supporting the case of the complainant broadly, had also named these accused opposite parties to have participated in the occurrence. Earned Counsel for the Opposite Party Nos. 7 to 12 has stated that as per evidence, they were only labourers, hence it could not be said that they had mens rea for committing the offence because, obviously, they were obeying those who had engaged them. Earned Counsel for the Opposite Party Nos. 7 to 12 has stated that as per evidence, they were only labourers, hence it could not be said that they had mens rea for committing the offence because, obviously, they were obeying those who had engaged them. Whether or not these opposite parties had intentionally participated in the occurrence for which prima facie evidence is available on record, is a question which cannot be decided at this stage but should be left to be decided in course of trial. From the evidence of the witnesses in the inquiry, it will also appear that some of the lady witnesses belonged to those houses also which were subject-matter of the complaint-petition. Some of the witnesses have named some of these opposite parties whereas witness No. 5 and 7 have named all of them. 19. Therefore, in-so-far as Opposite Party Nos. 7 to 12 Sheo Paswan, Bali Paswan, Ajay Paswan, Vijay Paswan, Rukhani Paswan and Indra Paswan are concerned, who are not holding any public office, the impugned order cannot be sustained. 20. In view of the aforesaid, the impugned order in-so-far as it relates to Opposite Party No. 2. A. Rahman that does not need any interference. 21. In-so-far as the case of aforesaid six accused/opposite parties is concerned, the impugned order cannot be sustained. 22. In the result this revision application is allowed in part and so far as Opposite Party Nos. 7 to 12, Sheo Paswan, Bali Paswan, Ajay Paswan, Vijay Paswan, Rukhani Paswan and Indra Paswan are concerned, the impugned order is hereby set aside and the matter is sent back to the learned lower Court for further inquiry in relation to these six opposite parties.