Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 710 (GAU)

Jahirul Islam Chowdhury v. State of Assam

2009-09-24

I.A.ANSARI

body2009
JUDGMENT Iqbal Ahmed Ansari, J. 1. The order, under challenge in the present revision, was passed, on 13.08.2009, by the learned Judicial Magistrate, Hojai, Sankardevnagar, in CR Case No. 66 of 2009, whereby the complaint, which the present Petitioner had filed, has been dismissed. 2. The material facts, giving rise to this revision, may be set out as under: (i) The Petitioner filed a complaint, in writing, in the Court of the learned Sub-Divisional Judicial Magistrate, Hojai, Sankardevnagar, against as many as six persons, alleging commission of offences by the said six persons under Sections 120-B/ 403/406/409/420/34 IPC, the case of the complainant being, in brief, thus: The accused Nos. 4, 5 and 6, are Junior Engineer, Assistant Engineer and Executive Engineer respectively under the Public Works Department (Road Division), Government of Assam, and these accused persons, in conspiracy with the remaining three persons, who were contractors under the said Department, have misappropriated as much as Rs. 1 crore, which had been sanctioned by the Government during the financial years, 2006-07, 2007-08, for repairing of Morajhar Debasthan Road, such misappropriation having been done without carrying out the work and by preparing false bills. (ii) The above complaint was made over to a learned Judicial Magistrate, who, having recorded, on 05.05.2009, complainant's statement under Section200 of the Code of Criminal Procedure (in short 'the Code'), postponed the issuance of process and fixed the complaint case, on 05.06.2009, for further inquiry in terms of Section 202 of the Code. Out of the five witnesses, whose names the complainant had mentioned, in his complaint, two were examined on 05.06.2009 and the case was fixed, for necessary order, on 22.06.2009. Though the complainant was present in the Court, the learned Magistrate passed an order, on 22.06.2009, fixing the case, for necessary order, on 14.09.2009. No order was passed on 14.07.2009 and, eventually, an order was passed, on 13.08.2009, observing to the effect, inter alia, that on perusal of the complaint, examination of the complainant and his witnesses, no prima facie case has been made out against the accused persons, named in the complaint, and, further, that the complainant has no locus standi to lodge the complaint. Aggrieved by the dismissal of his complaint, the complainant is, now, before this Court, with this revision. 3. I have heard Mr. I. Uddin, learned Counsel for the complainant-Petitioner, and Mr. V.S. Sinha, learned Additional Public Prosecutor, Assam. Aggrieved by the dismissal of his complaint, the complainant is, now, before this Court, with this revision. 3. I have heard Mr. I. Uddin, learned Counsel for the complainant-Petitioner, and Mr. V.S. Sinha, learned Additional Public Prosecutor, Assam. 4. While considering the present revision, it needs to be noted that when a Magistrate takes cognizance of an offence on the basis of a complaint, he is duty bound to examine, on oath, the complainant and the witnesses present, if any, except when the complaint has been made by a public servant acting or purporting to act in the discharge of his official duty or when a Court has made the complaint. This is the requirement of Section 200 of the Code. If on examination of the complaint and his witnesses, if any, present, the Magistrate is of the opinion that there is sufficient ground for proceeding, he shall issue summons for attendance of the accused if, according to the Magistrate, the case, made out, is a summons case. When, however, the Magistrate finds that the case, which the complainant has made out, is triable by warrant procedure, he may issue a warrant or, if he thinks fit, a summon for procuring attendance of the accused. 5. It may also be noted that when a Magistrate, on examination of a complainant and his witnesses, if any, present, is of the opinion that some inquiry is required to be held before a decision, as regards issuance of process, is taken, he is empowered to hold, in exercise of his powers under Section 202, an inquiry or direct an investigation to be made. The investigation, which may be so conducted, is for the purpose of enabling the Magistrate make up his mind as to whether there is sufficient grounds for proceeding or nor, for, when he forms the opinion that there is sufficient ground for proceeding, he has to issue process. No such direction for investigation can be given, when it appears to the Magistrate that the offence, complained of, is exclusively triable by a Court of Sessions. Moreover, if it appears to the Magistrate that the offence, complained of, is exclusively triable by a Court of Sessions, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. Moreover, if it appears to the Magistrate that the offence, complained of, is exclusively triable by a Court of Sessions, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. If the offence, complained of, is not exclusively triable by a Court of Sessions, the Magistrate may examine such witnesses as may be required in order to form an opinion as to whether process needs to be issued or not. 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, under Section 203, dismiss the complaint and, in every such case, he shall briefly record his reasons for so doing. On the other hand, if the Magistrate forms an opinion that there is sufficient ground for proceeding, he shall, according to Section 204, issue process for attendance of the accused. 6. Thus, the scheme of the Code is that a Magistrate must examine the complainant, on oath, and, if need be, complainant's witnesses, if any, present and, then, if required, the Magistrate may hold an inquiry or direct an investigation and, depending upon the result of the inquiry or investigates, as the case may be, either, as indicated above, dismiss the complaint or issue process against the person(s), who may appear to have committed the offence(s). 7. In the case at hand, what is important to note is that the complainant had given names of five witnesses. Had the learned Magistrate decided to issue process, examination of all the witnesses was not necessary. Though the Code does not make examination of all the persons, whom the complainant may have named as witnesses, necessary, it would be wholly unjust and highly improper to dismiss a complaint without examining all the witnesses of the complainant, for, the Magistrate cannot claim, before all such witnesses are examined, that examination of further witnesses would not disclose any relevant material. Such an approach would amount to pre-determining the result of the inquiry without completing the inquiry as envisaged under Section 202. 8. Such an approach would amount to pre-determining the result of the inquiry without completing the inquiry as envisaged under Section 202. 8. In the case at hand, since the learned Magistrate has, admittedly, not examined all the witnesses of the complainant, this Court does not wish to express any opinion as regards the question as to whether the processes ought to have been issued against those, who have been named in the complaint, as accused. Though the learned Magistrate has not clarified as to why he has concluded that the complainant has no locus standi, it may be pointed out that in a given case, a Magistrate may dismiss a complaint if sanction for prosecution is pre-requisite for taking cognizance of the offence, which the complaint may disclose, and, if in such a case, the complaint has been lodged without obtaining requisite sanction. Similarly, ordinarily, except in the cases, where there is a bar in taking of cognizance unless a complaint is made by a person specified by a statute, substantive or procedural, the locus standi of the complainant is not material. In short, thus, any one can set the law in motion unless the law itself provides otherwise. 9. In the case at hand, the offences, had the learned Magistrate found that any of the offences, made out by the complainant, was such, which he was not competent to take cognizance of without requisite sanction, the order dismissing the complaint ought to have so indicated. 10. If all the accused, named in the complaint, are not such persons, who could not have been proceeded against, without requisite sanction under Section 197 of the Code, there was no impediment, on the part of the learned Magistrate, to issue processes against them if the complaint and the statements of the complainant and his witnesses were such as would disclose commission of offence(s). 11. Because of the fact that this Court is interfering with the impugned order dismissing the complaint on the ground of procedural irregularities, no opinion, as regards merit of the case of the complainant, is being expressed so that the learned Magistrate may remain free, upon completion of the enquiry under Section 202 CrPC, to pass such order(s) as may be permissible in law. This Court must, however, point out that a Magistrate is not required to determine, under Section 204, if the case, lodged by the complainant, is true or not true, or, believable or not believable. What the Magistrate is required to determine is as to whether sufficient ground for proceeding with the complaint has been made out or not. If sufficient ground for proceeding with the complaint is made out, the Magistrate is bound to issue process in exercise of his powers under Section 204 CrPC. If, on considering the statements of the complainant and the witnesses, if any, and the result of the enquiry or investigation, which may have been carried out under Section 202, the Magistrate forms the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. However, while dismissing the complaint, the Magistrate, if I may reiterate, is duty bound to record, though in brief, the reasons for dismissing the complaint. 12. In the result and for the reasons discussed above, this Criminal Revision succeeds. The impugned order, dated 13.08.2009, dismissing the complaint, is hereby set aside and quashed and the learned trial Court is hereby directed to proceed with, and dispose of, the complaint in accordance with law. 13. Before parting with this revision, it may also be pointed out that issuing notices to those, who have been named as accused in the case, was not necessary, in the present case, for the purpose of exercise of revisional jurisdiction by this Court inasmuch as the processes have not yet been issued against any of the persons named as accused in the complaint and this Court expresses no opinion with regard to the question as to whether the materials, on record, disclose sufficient grounds for proceeding with the complaint or not. If and when processes, if any, are issued against all or any of the persons named as accused in the complaint, the person(s), so proceeded against, shall remain at liberty to take recourse to such provisions of law, as may be permissible, to challenge the issuance of such process(es) if the issuance of such process(es) is found to suffer from any such infirmity, which would warrant interference by this Court in exercise of its revisional or other jurisdiction.