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2002 DIGILAW 273 (MP)

Santosh Kumar Jaiswal v. Vivek Jain

2002-03-06

NARAIN SINGH AZAD

body2002
ORDER 1. The petitioner seeks quashment of order dated 16.10.1999 passed by CJM Katni, wherein he refused to take cognizance of any offence against non-applicants No.1 to 4, on consideration of police report, on petitioner's complaint for offences punishable under sections 408, 420, 467 and 468/34, IPC, on the ground that the dispute appears to be of civil nature, and the order dated 11.7.2001 passed by first ASJ, Katni in Criminal Revision No. 3/2000 wherein the petitioner's challenge to the order dated 16.10.1999, passed by CJM, Katni, stood disallowed and rejected. 2. This petitioner filed a complaint against non-applicants No. 1 to 4 for offences punishable under sections 408, 420, 467 and 468/34 and 120B of the IPC, in the Court of CJM, Katni, the copy of which is marked as Annexure A-1. On receipt of this complaint, the learned CJM, Katni sent the same to TI, Katni for investigation under section 156 (3) of the CrPC. The photocopy of this order is marked as A-3. On 23.8.1999, the learned CJM received the Investigation report from TI, Katni, which is marked as A-2. It is found informed by TI, Katni, in this report dated 22.8.1999 that the non-applicants are found to have committed offences punishable under sections 420, 467 and 468/34, IPC. TI, Katni annexed to this report various documents which were secured by him during the course of investigation and the statements of nine witnesses. On consideration of this report, the learned CJM sought explanation from TI, Katni on five points which he detailed in his order dated 21.9.1999. TI, Katni submitted his explanation dated 27.9.1999, which is marked as Annexure P-4. Thereafter, on consideration of arguments advanced on behalf of the petitioner, and the police report, the learned CJM, Katni dismissed the petitioner's complaint by well reasoned order dated 16.10.1999. 3. It is argued on behalf of the petitioner that the learned CJM did not examine even the complainant before discarding the police report and passing the order of dismissal of complainant and thus, committed patent illegality which is liable to be cured in exercise of inherent powers by this Court. It is also submitted by the learned counsel for the petitioner that the revisional Court also erred in not allowing petitioner's challenge in Criminal Revision No. 3/2000 and hence, the order dated 11.7.2001 passed by first ASJ, Katni is also liable to be set aside. 4. It is also submitted by the learned counsel for the petitioner that the revisional Court also erred in not allowing petitioner's challenge in Criminal Revision No. 3/2000 and hence, the order dated 11.7.2001 passed by first ASJ, Katni is also liable to be set aside. 4. It is found explained by Hon'ble the Supreme Court in Suresh Chand Jain v. State of M.P., reported in 2001 (1) JLJ 395 = AIR 2001 SC 571 , in para 10 of the aforesaid pronouncement that before taking cognizance of offence, if the Magistrate directs investigation under section 156 (3), CrPC, he is not required to examine the complainant on oath. It is further found explained in para 9 at page 573 that the investigation referred to in sub-section (1) of section 202 of the CrPC is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. 5. Then on receipt of the investigation report, the Magistrate is not obliged to accept the same and it is provided in section 203 of the CrPC that after considering the result of investigation as ordered under sub-section (1) of section 202 of the CrPC if the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and in every such case, he shall briefly record the reasons for so doing. The scheme of enquiry provided under Chapter XV of the CrPC does not contain any such provision, requiring the Magistrate to record the statement of complainant or his witnesses before dismissal of complaint under section 203 of CrPC in case on considering the result of the investigation, he• forms an opinion that there is no sufficient ground for proceeding. Secondly, in sub-section (1) of section 202 of CrPC, the Magistrate is required to choose either of the two courses for collecting the evidence i.e. on enquiry by himself or an investigation by police officer. Once he exercises the option, he is required to consider the evidence collected under that mode only, as provided in section 203 of the Code of Criminal Procedure. Once he exercises the option, he is required to consider the evidence collected under that mode only, as provided in section 203 of the Code of Criminal Procedure. For convenience, sub-section (1) of section 202 of CrPC and section 203 of CrPC are being reproduced which run as under: "202 (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 section 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 Sessions; 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 section 200." "203. 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 section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in very such case he shall briefly record his reasons for so doing." 6. Thus, the learned CJM, Katni is not found to have committed any patent illegality in dismissing the complaint of the petitioner, on consideration of police report, for which he ordered under section 202 (1) of CrPC, at the initial stage on receipt of the complaint because the Criminal Procedure Code does not require the Magistrate to utilise both the courses of collecting evidence provided under section 202 (1) of the CrPC. 7. Consequently, this petition does not merit which is, accordingly, disallowed and rejected.