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2004 DIGILAW 106 (PAT)

Md. Ghiyas @ Gyas v. State Of Bihar

2004-01-23

INDU PRABHA SINGH

body2004
Judgment 1. This is an application for under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 28.3.2003 passed by Shri A.K. Sinha, Judicial Magistrate, Ist Class, Katihar in C.A. No. 335 of 2001 by which the learned Magistrate after finding that a prima facie case against the petitioner under Section 376 of the Indian Penal Code was made out ordered for issue of the process against him. 2. From the prosecution case it appears that the allegation against the petitioner is that he caught hold of opposite party No. 2, Anokha Khatoon, in her field on 10.3.2001 at about 3.30 p.m. and committed rape on her. Opposite party No. 2 raised alarm on which several persons including her mother, sister and brother reached there. A panchayati was held in the matter and a fine of Rs. 5051/- was imposed on the petitioner. The punches however, kept delaying the matter and, therefore, a complaint petition was filed as late as on 17.3.2001 before the learned Chief Judicial Magistrate, Katihar who made over the complaint petition to Shri S.P. Pandey, Judicial Magistrate, Ist Class for enquiry or disposal. The complainant- opposite party No. 2 was examined on oath. Some of the witnesses named in the complaint petition were also examined. Thereafter a petition was filed in the Court by opposite party No. 2 to the effect that witness Nos. 4 to 6 named in the complaint petition are not willing to depose in the case and hence the other witnesses named therein may be examined. But order dated 17.7.2002 the learned Magistrate directed opposite party No. 2 to bring witnesses on the next date. Thereafter the father and uncle of opposite party No. 2 were examined. The learned Magistrate on the consideration of the complaint petition and the evidence of the witnesses found that a prima facie case under Section 376 of the Indian Penal Code was made out and he directed the complainant-opposite party No. 2 to file requisites and the list of the witnesses within 15 days. The case was adjourned to 16.4.2003. However, before this, on 3.4.2003, the list of the witnesses was filed and summons to them were issued. 3. The petitioner has contended in this petition that the entire prosecution case is false. The case was adjourned to 16.4.2003. However, before this, on 3.4.2003, the list of the witnesses was filed and summons to them were issued. 3. The petitioner has contended in this petition that the entire prosecution case is false. The elder brother of the petitioner had filed an information petition on 15.5.2001 against opposite party No. 2, her father, mother and other relatives in which he apprehended the false implication of his family members in a false case. The family members of opposite party No. 2 were putting undue pressure on the elder brother of the petitioner to marry the petitioner with opposite party No. 2. It was alleged that opposite party No. 2 had illicit relationship with the petitioner and she had become pregnant. On medical examination no pregnancy was found. In the meantime, the petitioner was married on 14.3.2001. The falsity of the complaint case would become clear from the fact that three witnesses named in the complaint petition were not willing to be examined on behalf of the opposite party No. 2 and they have swearn affidavits to that effect. The learned Magistrate, however, without taking into consideration these facts issued process against the petitioner. No case under Section 376 of the Indian Penal Code, as alleged in the statement of opposite party No. 2 was made in solemn affirmation. The prosecution evidence will not stand the test of the trial and, therefore, the process issued against the petitioner to face the trial is bad and unjustified. On these grounds it has been contended that the case may be admitted and the record of the case may be called for and after hearing the impugned order may be quashed. 4. I have heard the parties in detail at the admission stage itself. At the out set it may be stated that various grounds have been taken in this petition disclosing the evidence to be adduced by the petitioner in course of the trial. On behalf of opposite party No. 2 it has been submitted that at this stage of taking of cognizance those matters need not be gone into because they have to wait till the hearing of the case. It is well settled that at the state of enquiry under Section 202 of the Code the accused has got no locus standi and cannot be heard. It is well settled that at the state of enquiry under Section 202 of the Code the accused has got no locus standi and cannot be heard. In this connection a reference may be made to the case of Smt. Nagawwa V/s. Veeranna Shialingappa Konjalgi and others, AIR 1976 SC 1947 . In this decision examples have been given to show under what circumstances the Magistrate has to consider the grounds whether the process is to be issued or not. In the present case no such circumstances exists. 5. Before proceeding any further I would like to say that as stated in the present petition the Chief Judicial, Katihar on the receipt of the complaint petition and after hearing the learned counsel for the complainant-opposite party No. 2 made over the case to the Court of Shri S.P. Pandey, Judicial Magistrate, Ist Class, Katihar for enquiry and disposal by his order dated 19.3.2001. This order appears to have been passed under Section 192 of the Code. An order under Section 192 of the Code can only be passed after taking cognizance of the offence as will become clear from the language of this section. Since the case was transferred by the learned Chief Judicial Magistrate to another Judicial Magistrate for enquiry or trial obviously in such a situation the presumption of law would be that the learned Chief Judicial Magistrate had already taken cognizance of the offence before transferring the case to the Court of the learned Judicial Magistrate under Section 192 of the Code. Hence it is clear that the cognizance has already been taken at the time when the impugned order was passed. A perusal of the impugned order will show that five PWs were examined by the learned Magistrate in course of the enquiry after which he found that a prima facie case under Section 376 of the Indian Penal Code was made out against the petitioner. It is important to note that by the impugned order the learned Magistrate had not issued any process against the petitioner as alleged in paragraph Nos. 1 and 15 of the present application. He had simply asked the complainant-opposite party No. 2 to furnish the list of witnesses in the Court which was complied with. As such there is no foundation in the impugned order to show that any process was issued against the petitioner. 6. 1 and 15 of the present application. He had simply asked the complainant-opposite party No. 2 to furnish the list of witnesses in the Court which was complied with. As such there is no foundation in the impugned order to show that any process was issued against the petitioner. 6. On behalf of the petitioner it has been submitted that it was mandatory on behalf of the learned Magistrate holding enquiry under Section 202 of the Code to examine as the witnesses named in the complaint petition as the allegation made therein disclosed a Session triable offence. In this connection he has drawn my attention to proviso to sub-section (2) of Section 202 of the Code which runs as follows : "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 examine them on oath." Relying on this provision of law it has been submitted that in a case exclusively triable by the Court of Session the Magistrate has no option but to examine all the witnesses of the complainant. This sub-mission has been made in connection with the fact that as per this petition PWs 4 to 6 named in the complaint petition had declined to depose in the case for the prosecution and they had sworn affidavits also to that effect (Annexures 4 series). Under the circumstances it has been submitted that the procedure followed by the learned Magistrate is not correct. So far as the facts of the present case are concerned it appears that by the impugned order the learned Magistrate has asked the complainant to give the list of witnesses to be examined in the Court. It has been submitted that subsequently the complainant filed a petition giving up PWs 4 to 6 since they were gained over by the accused. However, in the impugned order there is no mention about it. 7. In support of this contention the learned counsel for the petitioner has placed reliance on the case of Rosy and another V/s. State of Kerala and others, 2000 (1) East Cr C 375 (SC) : (2000) 2 SCC 230 . However, in the impugned order there is no mention about it. 7. In support of this contention the learned counsel for the petitioner has placed reliance on the case of Rosy and another V/s. State of Kerala and others, 2000 (1) East Cr C 375 (SC) : (2000) 2 SCC 230 . It has been submitted that in this decision it has been held that the proviso of Section 202 (2) of the Code is mandatory in nature and failure to comply with the same will vitiate further trial of the case. However, in this decision delivered by Honble Mr. Justice K.T. Thomas and Honble Mr. Justice M.B. Shah of the Honble Supreme Court, it appears that M.B. Shah, J. had held that the provision of proviso to Section 202 (2) of the Code is discretionary and omission to follow it would not vitiate further trial unless it is established that prejudice was caused to the accused. It has been further held that the question of complying with the proviso to Section 202(2) would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and further decides to take evidence of witnesses on oath (emphasis supplied). In the present case, however, the cognizance had already been taken. Hence facts of the two cases are different. As against it K.T. Thomas, J. has held that the proviso to Section 202(2) is mandatory in nature but omission to follow it will not by itself vitiative of the proceedings and if objection is raised at a belated stage, the decision has to be taken in the light of Section 465 of the Code. This section provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal confirmation or revision on account of any error, omission or irregularity in the complaint, order, summons, warrant, judgment etc. or other proceedings under this Code. In this case both the Honble Judges have dictated separate judgments. From the facts of the said case it would appear that the Sessions Judge has made reference to the High Court under Section 395(2) of the Code while the accused had filed criminal revision petition against the reference. or other proceedings under this Code. In this case both the Honble Judges have dictated separate judgments. From the facts of the said case it would appear that the Sessions Judge has made reference to the High Court under Section 395(2) of the Code while the accused had filed criminal revision petition against the reference. The High Court heard both the matters together and directed the Magistrate to conduct a fresh inquiry in terms of the proviso to Section 202 (2) of the Code by examining all the witnesses and thereafter to commit the case to the Court of Session. Challenging that order the appellants contended that the proviso to Section 202 (2) of the Code was mandatory and that therefore, the High Court ought to have discharged them. In paragraph 22 of the judgment M.B. Shah, J. observed as follows : "22. Hence, the appeals are allowed, the impugned order passed by the High Court is set aside and the reference made by the Sessions Judge is answered in the aforementioned terms. The Sessions Court is directed to complete hearing of arguments and dispose of the case on merits in accordance with law." 8. From this it would appear that the order passed by the High Court was set aside and the Sessions Court was directed to proceed further by completing hearing of arguments and to dispose of the case on merit in accordance with law. In paragraph 20 of this decision in its clauses (ii)(c) it has been held that non-compliance with the provision of proviso to Section 202 (2) of the Code would not, however, vitiate further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. 9. In the separate judgments delivered by Thomas. J. (partly concurring) in paragraph 47 he has observed that proviso to Section 202(2) of the Code casts a compelling duty on the Magistrate to perform his duties in such cases. However, it has further been added that the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. However, it has further been added that the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. In paragraph 48 it has been further observed that if the Magistrate omits to comply with the above requirement that would not by itself vitiate the proceedings. Finally in paragraph 49 the following observation has been made : "49. With all the above reasons I agree with my learned brother that the impugned order passed by the High Court is to be set aside and the Sessions Judge be directed to dispose of the case on merits in accordance with law." 10. From this decision also it would appear that the direction as contained in proviso to Section 202 (2) of the Code is not such that its non-compliance will vitiate the proceedings in the case. Though the Honble Judges have differed on the point whether this proviso is mandatory or discretionary they have agreed that it will not vitiate the trial of the case. 11. From the facts of the present case it would, however, appear that by the impugned order no process has been issued to the present petitioner and before transfer of the case under Section 192 of the Code obviously the cognizance has already been taken by the learned Chief Judicial Magistrate. Hence the facts of this case are also different from the facts of the case of the decision cited above. 12. For the reasons stated above, I do not think that this case is fit for admission. It is, accordingly, rejected. Case rejected.