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2004 DIGILAW 403 (PAT)

Ram Ashish Chaudhary v. Mahanth Prasad

2004-04-07

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. The present application has been filed for quashing the order dated 5.2.2002 passed in Complaint Case No. 1101 (C) of 2001 passed by the Chief Judicial Magistrate, Gopalganj, dismissing the complaint case under Section 203 of the Code of Criminal Procedure. The petitioner also seeks quashing of the consequential order dated 19.5.2003 passed in Cr. Rev. No. 104/2002 passed by the District and Sessions Judge, Gopalganj affirming the said order. 2. The case of the petitioner is that Gopalganj PS Case No. .15/2001, dated 15.1.2001 was registered under Sections 147, 148, 149, 504 and 436 of the Penal Code. Wherein the petitioner was the informant. The police submitted Final No. of 2001, dated 21.1.2001 that the case appeared to be false and recommend proceedings under Sections 182 and 211 of the Penal Code against the informant. Thereafter a protest petition was filed by the petitioner on 26.3.2001. The learned Chief Judicial Magistrate Gopalganj examined the complainant on solemn affirmation on 15.9.2001, took cognizance of the case and proceeded to hold enquiry under Section 202 of the Code of Criminal Procedure. 3. Learned Chief Judicial Magistrate examined three PWs during enquiry under Section 202 of the Code of Criminal Procedure. Thereafter the learned Chief Judicial Magistrate proceeded to dismiss the complaint under Section 203 of the Code of Criminal Procedure. Aggrieved thereby the petitioner referred Cr. Rev. No. 104/2002 before the District and Sessions Judge.Gopalganj who affirmed the order of the Chief Judicial Magistrate dismissing the complaint. 4. Counsel for the petitioner contends that since offence under Section 436 of the IPC was triable exclusively by the Court of Session the learned Chief Judicial Magistrate had no option but to commit the case to the Court of Sessions and that he could not dismiss the case after having taken cognizance by meticulous examination, as a trial Court, of the evidence led before him during the course of enquiry under Section 202. Learned counsel for the petitioner submits that the Magistrate was only required to commit the case to the Court of Sessions which would have then proceeded in accordance with law. Learned Counsel for the petitioner in support of the preposition that the learned Magistrate could not have entered into meticulous examination of the evidence as a trial Court, in an enquiry under Section 202, relies upon an unreported judgment of this Court in Cr. Learned Counsel for the petitioner in support of the preposition that the learned Magistrate could not have entered into meticulous examination of the evidence as a trial Court, in an enquiry under Section 202, relies upon an unreported judgment of this Court in Cr. Appeal No. 9 of 1992. In the context of examination of this case it is relevant to set out Section 192 (1) and 202 (2) of the Code of Criminal Procedure: "192(1) Making over of cases to Magistrates.(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry of trial to any competent Magistrate Subordinate to him. 202. Postponement of issue of process.(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 exclusivity by the Court of Session; or (b) where the complaint had not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath : 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." 5. It would thus appear that the Magistrate in an inquiry under sub-section (1) of Section 202 may if he thinks fit take evidence of witnesses on oath. The purpose of inquiry under Section 202 is only to ascertain whether process should be issued or not on the basis of materials which surfaced during inquiry. It would thus appear that the Magistrate in an inquiry under sub-section (1) of Section 202 may if he thinks fit take evidence of witnesses on oath. The purpose of inquiry under Section 202 is only to ascertain whether process should be issued or not on the basis of materials which surfaced during inquiry. There would be a vital distinction between meticulous examination as a trial Court of the evidence which is led during such inquiry, discussion of such evidence and consideration of such evidence to decide upon the merits of the case. As distinct from this the Magistrate is entitled under Section 202 to engage in the extremely limited scope of ascertainment of the truth or falsehood of the allegations placed before the Court on the basis of materials placed before it by the complainant for the limited purpose of finding out whether prima facie case for issuance of process is made out or not. In accordance with para 9 of this very judgment relied upon by the petitioner the Magistrate in the present case can certainly not be said to have held a full dressed rehearsal or trial by meticulous examination of the evidence led during such enquiry. The Magistrate has quite simply recorded his dissatisfaction with the statements made before him during the course of enquiry and that he was not satisfied for the issuance of process in the said enquiry. The factual foundation for the aforesaid judgment relied upon by the petitioner being very different the same is not applicable in the present case. 6. In the case of Kewal Krishna v. Suraj Bhan, reported in AIR 1980 SC 1780 , the Supreme Court has held that in an enquiry under Section 202 a Magistrate is required to see if there is "sufficient ground for proceeding" against the accused. The Magistrate is not required to weigh the evidence as a trial Court. It is only if there is prima facie evidence in support of the allegations in the complaint the Magistrate may proceed to issue process. In the present case in hand, the Magistrate during inquiry was not satisfied with the depositions made by the witnesses to persuade him to issue process. In other words, the Magistrate did not lack in jurisdiction to pass the present order in an inquiry under Section 202. In the present case in hand, the Magistrate during inquiry was not satisfied with the depositions made by the witnesses to persuade him to issue process. In other words, the Magistrate did not lack in jurisdiction to pass the present order in an inquiry under Section 202. The objection of the Counsel for the petitioner is that the Magistrate exceeded his jurisdiction by entering into meticulous examination of the materials in the from of trial Court. 7. In an enquiry under Section 202 of the Code of Criminal Procedure the Magistrate has a discretion to record evidence of witnesses on oath. Then next stage of holding inquiry is passing of appropriate order of either dismissal of the complaint of issuance of process. Section 203 specifically provides that after considering the statement on oath of the complainant and the witnesses and as a result of inquiry of investigation, if any, under Section 202 a Magistrate is of the opinion that there is no sufficient ground for proceeding he shall dismiss the complaint. He is only required to briefly record his reasons for doing so. In other cases, he is required to issue process. It is thus an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have fell upon the mere perusal of the complaint and consideration of the complainants evidence on oath. The requirement to commit the case to the Court of Sessions for trial arises after the satisfaction of the Magistrate under Section 202 during an injury. This would be a position that would emerge from the judgment of the Supreme Court reported in 2000 Cr LJ 930 also. 8. In the aforesaid facts and circumstances, this Court is satisfied from the impugned orders that the Magistrate did not enter into meticulous examination and shifting of evidence as a trial Court and arrived at a finding of acquittal or guilt of the accused. The Magistrate simply held an inquiry under Section 202 for the purpose of ascertaining whether process should be issued nor not. If he was satisfied he would then be required to commit the case to the Court of Sessions. The Magistrate simply held an inquiry under Section 202 for the purpose of ascertaining whether process should be issued nor not. If he was satisfied he would then be required to commit the case to the Court of Sessions. Merely for the reason that he took cognizance and Section 436 IPC being one of the charges, the Magistrate was not straightaway mandatorily required to commit the case to the Court of Sessions straightaway. 9. For the reasons as aforesaid, there is no infirmity in the original order dated 5.2.2002 as also the revisional order dated 19.5.2003. 10. This application is accordingly dismissed.