Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 364 (JK)

Amrik Singh v. Ashok Kumar

2005-12-19

Y.P.NARGOTRA

body2005
1. "Whether a Magistrate, after having taken cognizance and issued process in terms of Sec.204 Cr.P.C. against an accused on a private complaint, can, on the application of the accused, drop the proceedings?" is the question involved in this petition. The facts shortly put are that the petitioner herein filed a complaint against the accused-respondent for commission of offence U/S 420 RPC in the court of Chief Judicial Magistrate Doda on 20.7.2001. Learned C.J.M. took cognizance for the offence U/S 420 RPC and issued the process for appearance of the accused. Trial Court directed the complainant to produce his evidence. However, before the trial court could record the evidence of the complainant, the accused moved an application on 18.3.2002 seeking dropping of the proceedings on the ground that the dispute involved was of a civil nature. Learned C.J.M. allowed the prayer of the accused, and dismissed the complaint and discharged them. The complainant-petitioner questioned the legality of the order of the learned C.J.M. before the learned Addl. Sessions Judge Doda, however he by his order dated 24.8.2004 dismissed the revision petition and upheld the order of the trial court, hence the petitioner is challenging the order of the trial court as well as that of the Sessions Court by way of the present petition. 2. The contention of learned counsel for the petitioner is that the trial court was not legally competent to dismiss the complaint without recording evidence. According to Mr. Thakur the order of the trial court whereby the complaint has been dismissed, after having issued the process, amounts to reviewing of its own order for which the trial court had no power under any of the provisions of the Code of Criminal Procedure. He submits that the order of the learned Sessions Judge is also erroneous in law On the other hand the contention of Mr. Wazir learned counsel for the accused-respondent is that process was issued against the accused for the fence U/S 420 RFC. The procedure to be followed for trial of the said offence was the procedure prescribed for trial of warrant cases on a private complaint. He argues that in terms of sub-sec.2 of sec.253 Cr.P.C. trial court was competent to hear the accused and could for reasons to be recorded drop the proceedings and discharge the accused.. According to Mr. The procedure to be followed for trial of the said offence was the procedure prescribed for trial of warrant cases on a private complaint. He argues that in terms of sub-sec.2 of sec.253 Cr.P.C. trial court was competent to hear the accused and could for reasons to be recorded drop the proceedings and discharge the accused.. According to Mr. Wazir the orders of the trial court and the Sessions Court are perfectly legal and do not call for any interference. 3. The question whether a Magistrate possesses the power to drop the proceedings midway came up for consideration before a two Judges Bench of the Supreme Court in case titled K.M. Mathew vs. State of Kerala, reported in AIR 1992 SC 2206. Their lordships observed as under:- "If one reads carefully the provisions relating to trial of summons cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates that the proceedings before the Magistrate commence upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused." 4. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused." 4. Thus by this judgment the Supreme Court held that the Magistrate possesses jurisdiction to drop the proceedings on the application of the accused after he enters appearance in response to the summons issued by a Magistrate. However in Adalat Parsed v. Rooplal Jindal, 2004 AIR SCW 5174 a larger Bench of the Supreme Court while dealing with identical question considered the judgment rendered in Mathews case (supra). Their lordships observed: - " 12.Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present if any. If on such examination of the complainant and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses has not made out sufficient ground for proceeding. Per contra if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at the stage has materials to proceed, he can proceed to issue process under section 204 of the Code. 13. Section 202 contemplates postponement of issue of process. It provides that if the Magistrate on receipt of the complaint if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs 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, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under section 203 of the Code. 14. 14. But after taking cognizance of the complaint and examining the complainant and the witnesses, if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathews case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under section 200 and 202 and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the Court and making an application for dismissal of the complaint under section 203 of the Code for a reconsideration of the material available on record is impermissible because by then section 203 is already over and the Magistrate has proceeded further to section 204 stage. 15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking section 482 of Code. 16. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking section 482 of Code. 16. Therefore in our opinion the observation of this court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously no specific provision of law is required would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion that the view of this court in Mathews case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law." 5. In Adalat Parsads case the Supreme Court thus over-ruled the view expressed in Mathews case and held that after taking cognizance and issuing process the Magistrate possesses no jurisdiction to drop the proceedings and discharge the accused. It may be pointed out here that in Adalat Rams case the complaint had been for commission of offences U/Ss 120A,B) 405,406,415,420,463,465&468 IPC and therefore the procedure for trial of said offences to be followed was the procedure prescribed for trial of warrant cases. Mr. Wazir learned counsel for the respondent submits that the view expressed by the Supreme Court in Adalat Parsads case was in the context of warrant case whereas in Mathews case the complaint involved offences which were to be tried as summons case. He submits that the ratio of Adlat Parsads case would not apply to a summons case. As regards the summons case the judgment of Mathews case still holds the field. 6. There is no merit in the contention of Mr. Wazir. In Subramanium Sethuramanvs. State of Maharashtra, reported in 2004 AIR SCW 53 25 a contention was raised that the principles laid down by the Supreme Court in Adlat Parsads case may require reconsideration because in that case the Supreme Court had proceeded on the basis as it was a summons case but in reality it was a warrant case covered by Chapter 29 of the Code. Their lordships repelled the contention and held that the judgment in Adalat Parsads case does not require reconsideration by observing that:- "From the above it is clear that the Larger Bench of this Court in Adalat Parsads case did not accept the correctness of the law laid down by this court in K.M.Mathews case. Therefore, reliance on K.M. Mathews case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Parsads case requires reconsideration be accepted." 7. Their lordships thus affirmed the view expressed in Adalat Parsads case.Mr. Wazir still argues that the view taken by the Supreme Court in Adalat Parsads case should be held per quarium and not binding on this court for the reason that it runs contrary to the statutory provisions made in sub-sec.(2) of sec.253 of J&K Cr.P.C. Sec.253 reads as follows:- "253-Discharge of accused -(1) If upon all the evidence referred to in section 252 and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." 8. Mr. Wazir submits that sub-section(2) confers unfettered powers upon the Magistrate for discharging the accused at any previous stage of the case if for reasons to be recorded by such Magistrate he considers the charge to be groundless and that stage can be even before the recording of the evidence of the complainant. 9. For trial of warrant cases instituted otherwise than on police report U/S 252 after the accused appears or is brought before the Magistrate such Magistrate is bound to hear the complainant and take all such evidence as may be produced in support of the prosecution. Under sub-sec(l) of Sec.253 if upon taking of the evidence referred to in sec.252 and making such examination if any of the accused as the Magistrate thinks necessary he finds that no case against the accused has been made out which if uncounted would warrant his conviction, the Magistrate can discharge him. Under sub-sec(l) of Sec.253 if upon taking of the evidence referred to in sec.252 and making such examination if any of the accused as the Magistrate thinks necessary he finds that no case against the accused has been made out which if uncounted would warrant his conviction, the Magistrate can discharge him. However, sub-section (2) of sec.253 envisages that nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by such Magistrate; he considers the charge to be groundless. In the first flush the contention of Mr. Wazir appears to be attractive but when closely examined it loses its weight. The expression "any previous stage of the case" used in sub-section (2) of sec.253 if given wider meaning would mean that a Magistrate would be entitled to discharge the accused before recording evidence after the accused enters appearance. An anomalous situation would crop up because when the Magistrate issues process U/S 204 Cr.P.C on a complaint instituted otherwise than on a police report it implies that the Magistrate is prima facie satisfied that the complaint involves charges which are not groundless and then at a subsequent stage only after hearing the accused if he finds that the complaint involves charges which are groundless it would tantamount to reviewing his own order. Admittedly there is no provision in the Code of Criminal Procedure, which permits a Criminal Court to review its own order and to the contrary section 369 Cr.P.C. envisages a complete bar, which prohibits a Criminal court from reviewing its own order, after the same has been signed except to correct clerical error. Keeping this in view in my considered opinion the words "at any stage of the case" can be and must be interpreted to mean a stage arrived after recording of some evidence. A Magistrate can consider the question of discharge of the accused only after recording some of the evidence of the complainant. Keeping this in view in my considered opinion the words "at any stage of the case" can be and must be interpreted to mean a stage arrived after recording of some evidence. A Magistrate can consider the question of discharge of the accused only after recording some of the evidence of the complainant. For instance if a complainant in his evidence admits such facts or brings on record such facts on the basis of which it can be said that charge against the accused is groundless or that there is legal bar to the continuation of the complaint then the Magistrate can truncate the proceedings and on the basis of evidence recorded he can record the order of discharge of the accused. In the present case admittedly the trial court recorded no evidence of the complainant before dropping the proceedings and discharging the accused. The proceedings have been dropped after issuance of process against the accused. Therefore the impugned order of the learned trial court cannot be legally sustained. The order of the learned Sessions court is also bad in law. 10. For the reasons stated above the revision petition is allowed and the order dated 31.10.2002 passed by learned C. J.M. Doda and order dated 24.8.2004 passed by learned Addl.Sessions Judge Doda are set aside and the case is remitted back to C. J. M. Doda for proceeding with the trial of the case in accordance with law. Copy of this judgment be sent to both the courts below. Learned counsel for the parties is directed to cause the appearance of the complainant and the accused before the trial court on 06.2.2006.