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Jharkhand High Court · body

2010 DIGILAW 721 (JHR)

Ganpati Narayan Tiwari v. State of Jharkhand

2010-07-09

D.G.R.PATNAIK

body2010
Order The petitioner in this application under the provisions of Section 482 Cr.P.C., has prayed for quashing the order dated 11.2.2004 whereby the complaint petition filed by him was dismissed by the Court below on the basis of some documents which the accused persons were allowed to file even at the stage of enquiry under Section 202 Cr.P.C. The petitioner has also challenged the order dated 11.2.2004 passed, by the 8th Additional District and Sessions Judge, Palamau in Criminal Revision application filed by the petitioner against the impugned order of the Judicial Magistrate whereby criminal revision application was dismissed. 2. learned counsel for the petitioner has assailed the impugned order of the Magistrate as also that the Sessions Judge on the ground that the Magistrate has committed a serious error of procedural law by allowing the accused persons to appear and file documents at the stage of enquiry even without issuance of any summon against them and by relying upon such documents. Referring to the provisions of Section 202 Cr.P.C., learned counsel argues that during the enquiry proceeding under Section 202 Cr.P.C., the accused persons have no locus standi either to appear or to file any documents nor does the scope of enquiry under the said provision allow the enquiring Magistrate to refer to any such documents filed by the accused persons. learned counsel argues that the Magistrate, while conducting the enquiry, has to consider the averments as contained in the complaint petition and the statements of the complainant and his witnesses recorded on solemn affirmation and then to assess on the basis of such materials as to whether any prima facie case has been made out against the accused. learned counsel argues that the Magistrate, while conducting the enquiry, has to consider the averments as contained in the complaint petition and the statements of the complainant and his witnesses recorded on solemn affirmation and then to assess on the basis of such materials as to whether any prima facie case has been made out against the accused. Reading out the impugned order of the learned Magistrate, learned counsel for the petitioner submits that even as admitted in the impugned order, the enquiring Magistrate had allowed himself to peruse the documents filed by the accused persons on the basis of which the Magistrate had drawn an erroneous inference that the dispute between the parties relates to some official transactions between the complainant and the accused and the complaint has been filed "to take revenge from the opposite party/accused', learned counsel argues further that even otherwise, without affording a reasonable opportunity to rebut and explain the documents filed by the accused, the learned Magistrate could not have proceeded to refer to the same and on the basis of the contents of the said documents, to draw any adverse inference against the complainant. Such opportunity, according to the learned counsel, could be given only after commencement of the trial when the accused would have the opportunity to confront the complainant and the witnesses with the said documents and elicit their explanation on the same. To buttress his arguments, learned counsel would refer to and rely upon the judgment of a Bench of this Court in the case of Birendra Singh vs. State of Jharkhand, 2004(1) JLJR 221 . 3. Learned counsel for the State, on the other hand, would argue that in course of enquiry conducted by the Magistrate under the provisions of Section 202 Cr.P.C., the accused may not have any locus standi to submit any argument but the provisions do not prohibit the accused persons to participate in the enquiry proceeding. 4. 3. Learned counsel for the State, on the other hand, would argue that in course of enquiry conducted by the Magistrate under the provisions of Section 202 Cr.P.C., the accused may not have any locus standi to submit any argument but the provisions do not prohibit the accused persons to participate in the enquiry proceeding. 4. The grounds on which the impugned order of the learned Magistrate has been assailed raises a basic question as to whether an accused can set up his defence and produce some documents during enquiry before the Magistrate and whether such documents can be considered by the Magistrate along with other documents produced by the complainant and whether on the basis of such documents produced by the accused can the Magistrate record any observation that the complaint was filed with malicious motives or that the allegations in the complaint are false ? 5. The facts of the case in brief is as follows: The petitioner being the complainant, had filed a complaint petition before the Court of Chief Judicial Magistrate. The case of the complainant is that he being an employee of the Bihar Caustic & Chemicals Ltd., an industrial dispute with the Management was pending before the Industrial Dispute Tribunal, Ranchi. In spite of the order of stay passed by the Tribunal restraining the Management from forcibly evicting the complainant from the quarter allotted to him, the accused/petitioner alongwith two unknown persons accosted him on the alleged date of occurrence and after abusing him and manhandling him, snatched away Rs. 700/- and his Identity Card as well as some of the papers, from his shirt pocket and had also issued threats of dire consequences directing the complainant to vacate the quarter. Upon receiving the complaint, the Chief Judicial Magistrate transferred the case for enquiry and trial to the Court of the Judicial Magistrate. The matter eventually came to be transferred to the Court of Shri Y.K. Singh, Judicial Magistrate, 1st Class, Daltonganj for enquiry under Section 202 Cr.P.C. The statement of the complainant as his witnesses was recorded on solemn affirmation in the enquiry conducted by the Magistrate. At this stage, the accused petitioner appeared through his lawyer and filed certain documents in the proceeding. 6. At this stage, the accused petitioner appeared through his lawyer and filed certain documents in the proceeding. 6. From the impugned order passed by the learned Magistrate whereby the complaint petition was dismissed under Section 202 Cr.P.C., it appears that the learned Magistrate, upon considering the statements of the complainant and his witnesses and also upon considering the documents filed by the accused on 22.12.2002, has observed as follows:-there is dispute between both the parties. Complainant was subordinate to the Opposite Party No. 2/accused Ramesh Ojha and he was suspended and was also directed to vacate the quarter". On such observations, the inference drawn by the Magistrate was that "the case was filed to take revenge from Opposite Party. There is official dispute also so keeping in view of above facts and due to being contradictory statement of the enquiry witnesses, this case is dismissed." 7. The above facts do certainly indicate that on the date when the documents were filed by the accused/petitioner, the proceeding was still a1 the enquiry stage and the accused was not summoned to face trial. 8. Section 202 of the Code of Criminal Procedure lays down the procedure for conducting the enquiry into a complaint on postponing the issue of process against the accused. The provisions of sub section (1) of Section 202 Cr.P.C. reads as follows:--- 202. Postponement o/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. On a bare reading of the above provisions, it would be manifest that the scope of enquiry under Section 202 Cr.P.C. is for the limited purpose of finding out as to whether a prima facie case is made out on the basis of the materials placed by the complainant without at all adverting to any defence, the accused may have and the accused is not entitled to be heard. The section comes into play when the Magistrate, after examining the complainant and his witnesses present, if any, has reasons for distrust and thinks ~hat he would not be justified in issuing process without taking some further steps to ascertain whether the allegations are prima facie true or not. The provisions are intended to enable the enquiring Magistrate to form an opinion as to whether the process should be issued or not. At this stage, the Magistrate has to see as to whether there is evidence in support of the allegations and not whether the evidence is sufficient to warrant a conviction. The entire scheme of the provision is that an accused person does not come into picture at all till the process is issued. 9. It would thus appear that at this stage, the accused has got no locus standi to appear and file his objections to the enquiry. Nevertheless, the provisions of Section 202 Cr.P.C. do not prohibit the accused from being present in the proceeding either in person or through counsel with a view to be informed about the proceeding though he may not have any right to take part in it nor has the Magistrate any jurisdiction to prompt him to do so. If the accused appears on his own accord and he or his lawyer offers to help the Magistrate, there may be no illegality, but to allow him to adduce evidence or to cross-examine witnesses would be illegal. The accused could be admitted to watch proceedings and his lawyer to act as amicus curiae. Such limited allowance to the, accused cannot be termed as illegal in view of the object and purpose of the enquiry conducted by the Magistrate being mainly to decide whether or not there is sufficient ground for proceeding against the accused. The Magistrate has the right to be informed of all the relevant facts related to the complaint which may have a bearing on the nature and allegations in the complaint. This view finds support from the judgment of the Supreme Court in the case of Chandradeo, AIR 1963 Supreme Court 1430. The Magistrate has the right to be informed of all the relevant facts related to the complaint which may have a bearing on the nature and allegations in the complaint. This view finds support from the judgment of the Supreme Court in the case of Chandradeo, AIR 1963 Supreme Court 1430. While observing that during the enquiry, the presence of the accused is not barred but what is barred is his participation, the Supreme Court has drawn a difference between "watching" and "participating" and has explained that while "watching" means to know what actually is pone and in that course, if he could point out on the matter of jurisdiction of the enquiry for the offence or to point out certain other circumstance viz. the police investigation pending for the same offence on account of which the Magistrate may not have jurisdiction to proceed with the complaint under Section 210 Cr.P .C. 10. To reiterate, the emphasis as laid down under the provisions of Section 202(1) Cr.P.C. defining the scope of enquiry, is for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. It would therefore be within the scope and ambit of the enquiring Magistrate to have access to any information which may have a direct bearing upon the allegations in the complaint petition and the statements of the complainant and the witnesses; for the purpose of satisfying himself as to whether or not there is sufficient ground for proceeding against the accused. 11. The argument of the learned counsel for the petitioner that it was not within the privilege of the accused to file any document in course of the enquiry proceeding and was absolutely beyond the powers of the Magistrate to refer to such documents filed by the accused at the stage of enquiry, is therefore not acceptable. However, the objection to the reference to the documents by the Magistrate and placing reliance on the same before passing the final order in the enquiry proceeding, on the ground that before acceptance of such documents and relying upon the same, the complainant and his witnesses ought to have been given an opportunity to explain the same, has force. 12. In, the present case, apparently, the documents have been filed by the accused by setting up his defence against the allegations made by the complainant. 12. In, the present case, apparently, the documents have been filed by the accused by setting up his defence against the allegations made by the complainant. Even if the enquiring Magistrate would peruse such documents to assess as to whether it has any bearing upon the nature of complaint and upon the allegations made by the complainant, yet, before relying upon the same, it was the duty of the Magistrate to confront the complainant and his witnesses with the documents in course• of the enquiry while recording their statements on solemn affirmation in order to elicit explanations from the complainant and his witnesses regarding the genuineness of the contents of the documents. Without affording such opportunity to the complainant, the acceptance• of the defence set up by the accused, would certainly be beyond the scope of the authority of the enquiring Magistrate. 13. In the present case, it appears from the facts pleaded and from the documents on record, that the documents on behalf of the accused was filed after the statements of the complainant and his witnesses were already recorded and therefore the documents were not available so that the complainant and his witnesses could be confronted with the same and an opportunity be given to the complainant to explain the documents. As appearing from the impugned order of the enquiring Magistrate, the reliance placed by him on the documents to draw adverse inference against the complainant without enabling the complainant to explain the contents of the documents, is certainly illegal. In this view of the matter, the impugned order of the Magistrate cannot be legally sustained and is therefore hereby quashed. From the perusal of the impugned order of the Revisional Court, I find that the Revisional Court has not taken into consideration the above aspect of the matter which would amply indicate that the enquiring Magistrate has travelled beyond his jurisdiction by relying upon the documents filed by the accused at the stage of enquiry. The impugned order of the Revisional Court is therefore hereby quashed. 14. The matter is remanded back to the enquiring Magistrate to conduct the enquiry afresh and to pass a reasoned and speaking order on the basis of materials collected in course of enquiry.