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Allahabad High Court · body

2013 DIGILAW 18 (ALL)

DILIP KUMAR MISHRA v. STATE OF U. P.

2013-01-03

HET SINGH YADAV

body2013
Het Singh Yadav, J. Impugned herein is the order dated 6.10.2010 passed on the complaint of the revisionist under Section 204 Criminal Procedure Code, 1973 ( In short the Code) by the Special Judge ( Dacoity Affected Areas Act, 1983), Farrukhabad ( hereinafter referred to as Special Judge) whereby the learned Special Judge issued process against the Respondent Nos. 2 to 5 under Section 323 IPC and not under Section 394/397 I.P.C as prayed. The factual matrix of the case in brief, as is necessary for adjudication of the present revision is that the revisionist-complainant instituted a complaint under Chapter XV of the Code, in the Court of Special Judge with the allegations that his marriage with the Respondent No. 3 was performed about four years back; that the Respondent No. 3, however, deserted him and consequently she left for her parental home. The allegation further is that she thereafter embarked upon criminal proceedings against the complainant alleging that the complainant ill-treated and subjected her to cruelty and also harassed her with a view to coercing her to fulfill his dowry demand. The dispute was however reconciled in a ''Panchayat' convened between the relatives of both the sides. It was agreed mutually that the Respondent No. 3 would resume her married life with the complainant. In terms of re-conciliation so arrived at between both the sides- on 25.2.2009 at about 2.00 p.m. the complainant arrived at the residence of the Respondent No. 2 to bring back his wife ( the Respondent No. 3). The allegation further is that the Respondent No. 2 along with remaining Respondents ( except Respondent No. 1) had snatched money, mobile-phone, and ornaments etc. from the complainant on gun-point. They also gave beating to the complainant with sticks. On his failure to get the FIR lodged at the concerned police station, the complainant took recourse to filing complaint under Chapter XV of the Code in the Court of Special Judge. The Special Court recorded statements under Section 200 and 202 Cr.P.C. of the complainant and the witnesses and took cognizance under Section 323 I.P.C only. The Special Court further transferred the case to the Court of Judicial Magistrate concerned for trial, as the Special Court was of the view that ex-facie, no scheduled offence appears to have been committed by the Respondents No. 2 to 5. The Special Court further transferred the case to the Court of Judicial Magistrate concerned for trial, as the Special Court was of the view that ex-facie, no scheduled offence appears to have been committed by the Respondents No. 2 to 5. Feeling dissatisfied and aggrieved, the complainant/revisionist has preferred the instant revision. I have Heard learned counsel for the revisionist, learned counsel for the complainant and also learned A.G.A as considerable length. I have also been taken through the materials on record. The main brunt of the contention of the learned counsel for the revisionist is that the scope of preliminary enquiry undertaken by the Magistrate/the Court under Chapter-XV of the Code is very limited. If upon examination of the complainant and his witnesses the Magistrate/the Court is prima facie satisfied that a case is made out against the accused person of committing any offence, then he is required to issue process under Section 204 of the Code. In case, after taking into consideration the statements of the complainant and his witnesses and the result of inquiry, if any, conducted under Section 202, he is of the view that there does not exist sufficient ground for proceeding, then the Magistrate can dismiss the complaint under Section 203 of the Code. Learned counsel laid much emphasis on the fact that the expression 'sufficient ground' simply means that a prima facie case is made out against the person of committing offence. At this stage, it is argued, the Magistrate is not supposed to scrutinise the statements recorded by him under Section 200 Cr.P.C. of the complainant and witnesses and further the prima facie evidence collected during enquiry under Section 202 Cr.P.C. so meticulously as is required at the stage of trial and even at the stage of framing of charges. In the next limb of argument, it is submitted that the learned Special Court has scrutinised the statements of the complainant and his witnesses recorded under Section 200 and 202 Cr.P.C., as if the Court was conducting the trial finally. The Special Court has even discussed that the witnesses are not reliable, complainant version as also not believable and also that the witnesses are not credible and, therefore their evidence inspires no confidence. The Special Court has even discussed that the witnesses are not reliable, complainant version as also not believable and also that the witnesses are not credible and, therefore their evidence inspires no confidence. It is further argued that the Special Court has not taken cognizance under Section 394 and 397 I.P.C. simply for the reason that since his wife- the Respondent No. 3 had instituted a case of cruelty against him under Section 498-A I.P.C. and as such there was a motive for him to falsely implicate them. The learned Special Court had also not taken cognizance of committing scheduled offence by the Respondent Nos. 2 to 5 reasoning that the statements of the witnesses were replete with contradictions. All these criticisms by the Special Court and critical appreciation of the prima facie evidence, it is further reasoned, are beyond the purview of Section 203/204 of the Code. He further submitted that in a catena of decision the Apex Court has held that at the stage of inquiry under Chapter XV of the Code only disclosure of a prima facie case has to be looked into and nothing more and, therefore, the impugned order passed by the Special Judge, is absolutely illegal and runs counter to the settled law laid down by the Apex Court, and therefore, it is argued, the same deserves to be set aside. Learned A.G.A., on the other hand, contended that in this case, the learned Special Court has not dismissed the complaint of the Revisionist under Section 203 of the Code but the learned court after having perused the complaint and after reckoning into consideration the facts and circumstances of this case and on consideration of the statements recorded under Section 200 and 202 of the Code of the complainant and the witnesses, found sufficient ground for taking cognizance under Section 323 I.P.C. Undisputedly, the Revisionist is the husband of the Respondent No. 3 remaining respondents are her father and close relatives. The Respondent No. 3 ( wife of the Revisionist) has already filed a case under Section 498-A I.P.C. against the Revisionist much before filing of the complaint of this case. The complainant/revisionist has also neglected to maintain the Respondent No. 3 ( his wife) and therefore, she has also filed a case under Section 125 of the Code for her maintenance against the revisionist which is pending in the Court of competent jurisdiction. The complainant/revisionist has also neglected to maintain the Respondent No. 3 ( his wife) and therefore, she has also filed a case under Section 125 of the Code for her maintenance against the revisionist which is pending in the Court of competent jurisdiction. Thus, from all these facts it appears that the complainant has moved the complaint as a counter-blast with the avowed object to exerting pressure on his wife and other respondents to withdraw those cases. Learned A.G.A. vehemently urged that the object of examining of the complainant and the witnesses under Section 200 and 202 of the Code is to ascertain truthfulness or falsehood of the complaint. The learned Special Judge on a cursory perusal and after having scrutinised the entire material on record including the statements recorded under Section 200 and 202 found sufficient ground for proceedings under Section 323 I.P.C. only. Quintessentially, it is submitted that the impugned order is well discussed and well reasoned order and thus there appears no error or illegality therein. The revision has no force and, therefore, deserves to be dismissed. I have given my anxious consideration to the rival submissions of both the sides. The core question involved in this revision for determination is - whether at the stage of 203/204, the Magistrate/the Court is supposed to examine truthfulness or falsity of the statements made under Section 200 and 202 of the Code by the complainant and his witnesses or not? In connection with the submissions made across the bar, it would be useful to refer Section 200 to Section 203 as embodied in Chapter XV of the Code and also Section 204 of the Code which are reproduced below: "Section 200. Examination of complainant. In connection with the submissions made across the bar, it would be useful to refer Section 200 to Section 203 as embodied in Chapter XV of the Code and also Section 204 of the Code which are reproduced below: "Section 200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the compliant is made in writing, the Magistrate need not examine the complainant and the witnesses- ( a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or ( b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complaint and the witnesses, the latter Magistrate need not re-examine them. Section 201. Procedure by Magistrate not competent to take cognizance of the case- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence he shall- ( a) if the compliant is in writing, return if for presentation to the proper Court with and endorsement to that effect. ( b) if the complaint is not in writing, direct the complainant to the proper Court. Section 202. Postponement of issue of process. ( b) if the complaint is not in writing, direct the complainant to the proper Court. Section 202. Postponement of issue of process. ( 1) Any Magistrate, on receipt of a compliant 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 '[and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction]' 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 exclusively by the Court of Session; or ( b) Where the complaint has 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 it, take evidence of witnesses 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. ( 3) If an investigation under sub-section ( 1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant. Section 203. Dismissal of compliant- If, after considering the statements on oath ( if any) of the complainant and of the witnesses and the result of the inquiry or investigtion ( if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. Section 204 . Section 204 . Issue of process- ( 1) If the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be- ( a) a summons-case, he shall issue his summons for the attendance of the accused, or ( b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or ( if he has not jurisdiction himself) some other Magistrate having jurisdiction. ( 2) No summons or warrant shall be issued against the accused under sub-section ( 1) until a list of the prosecution witnesses has been filed. ( 3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section ( 1) shall be accompanied by a copy of such complaint. ( 4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. ( 5) Nothing in this section shall be deemed to affect the provisions of section 87." From the scheme laid down in Chapter XV and Section 204 of the Code, it leaves no manner of doubt that it relates to complaints made before the Magistrate and covers cases before actual commencement of proceedings in a court or before a Magistrate. Section 200 lays down that the Magistrate takes cognizance of an offence on a complaint and his witnesses and the substance of such examination shall be reduced in writing and shall be signed by all the persons making them and also by the Magistrate. The Magistrate on cursory perusal of the complaint and on prima facie scrutiny of the statements so recorded by him under Section 200 of the Code may take cognizance of the offence, which appears to have been committed by the person as disclosed in the complaint. However, the Magistrate is not bound to issue process against the person, who is alleged to have committed offence as a matter of course. However, the Magistrate is not bound to issue process against the person, who is alleged to have committed offence as a matter of course. Section 202 enables him either to enquire into the case himself or direct for an investigation to be made by an officer or by such other persons, as he thinks fit. The object behind recording the statements of the complainant and the witnesses is simply to find out the truth or falsity of the allegations contained in the complaint and further whether or not there is sufficient ground for proceeding. Prima facie satisfaction of the Magistrate that a case is made out against the person alleged to have committed offence is a condition precedent for issuing process under Section 204 of the Code. It is now almost settled law that if upon examination of the complainant and the witnesses the Magistrate, is prima facie satisfied that a case is made out against the accused person of committing an offence, then, he is required to issue process under Section 204 of the Code. At this stage, the Magistrate is not required to weigh the evidence meticulously as if he was the trial Court. The standard of scrutiny of evidence is also not the same as is to be considered at the stage of framing of charge. Relevant on the point is the case of Kewal Krishan Vs. Suraj Bhan, 1980 Supp SCC 499 : ( AIR 1980 SC 1780 : 1980 Cri LJ 1271 in which the apex court held that at the stage of Chapter XV of the Code the Magistrate has to find out whether prima facie case is made out against the accused or not. The Magistrate is not required to meticulously appreciate the evidence at the stage of 203/204 Cr.P.C. All that the Magistrate has to do-is to see whether on a cursory perusal of the complaint and the evidence recorded during preliminary enquiry under Section 200 and 202, there is prima facie evidence in support of charge levelled against the accused. The Magistrate has to see whether or not there is sufficient ground for proceedings against the accused. The apex court further held that the Magistrate is not to weigh the evidence meticulously as if he was the trial Court. The Magistrate has to see whether or not there is sufficient ground for proceedings against the accused. The apex court further held that the Magistrate is not to weigh the evidence meticulously as if he was the trial Court. The procedure adopted by the Magistrate in examining the evidence is not the same, as the one which is to be kept in view of the framing charges. The above view of the apex court was followed in its latter decision in Rosy and Another Vs. State of Kerala and Others, 2000 CRI. L. J. 930 In S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Others ( 2008) 2 Sec 492 the apex court held thus:- "Chapter XV ( Sections 200-2003) relates to Complaints to Magistrates and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to 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 there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202, is no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused. Then comes Chapter XVI ( Commencement of proceedings before Magistrates). This Chapter will apply only after cognizance of an offence has been taken by a Magistrate under Chapter XIV. Section 204 , whereunder process can be issued, is another material provision .........." In Shievjee Singh Vs. Then comes Chapter XVI ( Commencement of proceedings before Magistrates). This Chapter will apply only after cognizance of an offence has been taken by a Magistrate under Chapter XIV. Section 204 , whereunder process can be issued, is another material provision .........." In Shievjee Singh Vs. Nagrendra Tiwary and Others, AIR 2010 SC 2261 , the apex court held thus:- "The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complainant and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process. Section 202 empowers the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he may think fit for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 203, the Magistrate can dismiss the complaint if, after taking into consideration the statements of the complainant and his witnesses and the result of the inquiry/investigation, if any, done under Section 202, he is of the view that there does not exist sufficient ground for proceeding. On the other hand, Section 204 provides for issue of process if the Magistrate is satisfied that there is sufficient ground for doing so. The expression "sufficient ground" used in Section 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. The expression "sufficient ground" used in Section 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. This interpretation of the provisions contained in Chapters XV and XVI of Cr.P.C. find adequate support from the judgements of this Court in R.G. Ruia v. State of Bombay, 1958 SCR 618 : ( AIR 1958 SC 97 ), Vadilal Panchal v. Duttatraya Dulaji Ghadigaonkar ( 1961) 1 SCR 1: ( AIR 1960 SC 1113 ), Chandra Deo Singh v. Prokash Chandra Bose ( 1964) 1 SCR 639 : ( AIR 1963 SC 1430 ), Nirmaljit Singh Hoon v. State of West Bengal ( 1973) 3 SCC 753 - ( AIR 1972 SC 2639 ), Kewal Krishan v. Suraj Bhan ( 1980) Supp SCC 499 : ( AIR 1980 SC 1780 ), Mohinder Singh v. Gulwant Singh ( 1992) 2 SCC 213 :( AIR 1992 SC 1894 : 1992 AIR SCW 2189) and Chief Enforcement Officer v. Vediocon International Ltd. ( 2008) 2 SCC 492 :( AIR 2008 SC 1213 : 2008 AIR SCW 1203 )." In the case in hand, it is alleged in the complaint that the complainant along with two witnesses arrived at the house of Respondent No. 2 ( his father-in-law) and asked him to send his wife. All the accused persons named in the complaint, however, alleged to have snatched the jewellery, garments and cash from him on gun point. They are also alleged to have given him beating, when the complainant resisted them. The Special Court on a cursory perusal of the complaint and on perusal of the statements of the complainant and the witnesses was prima facie satisfied that a case of voluntarily causing simple hurt punishable under Section 323 I.P.C. is made out against the Respondent Nos. 2 to 5 and accordingly, issued process against them under Section 204 Cr.P.C. The learned Special Judge by a speaking order has clearly recorded his reasons for taking the view that he was prima facie not satisfied that the respondents 2 to 5 had committed any scheduled offence. The Special Judge converged to the opinion that there was no sufficient ground for proceeding against the respondents 2 to 5 for committing any scheduled offence. The Special Judge converged to the opinion that there was no sufficient ground for proceeding against the respondents 2 to 5 for committing any scheduled offence. No doubt, the law is well settled that at this stage the Magistrate/the Court is not required to conduct a roving and fishing inquiry into the facts of the case. It is not his business to examine at this stage whether the witnesses are reliable or not and whether the allegations of the prosecution are reliable or not. However, at this stage the object of examining the complainant and the witnesses is to ascertain the truthfulness or falsehood of the complaint and also to determine whether there existed prima facie case against the persons, who according to the complainant have committed the offence as held by the Apex Court in Shievjee Singh ( Supra). In Mohinder Singh Vs. Gulwant Singh ( AIR 1992 SC 1894 : 1992 AIR SCW 2189), the apex court held thus: "The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any." In Vadilal Panchal Vs. Dattatraya Dulaji, ( AIR 1960 SC 1113 at page 1116), the apex court held thus: "The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned." Thus the ratio laid down by the apex court as above it crystallizes that main object of examining the complainant and his witnesses as per scheme of Chapter XV Cr.P.C. is to ascertain truthfulness and falsehood of the complaint. Therefore, I am not inclined to countenance the submissions made by the learned counsel for the revisionist that at the stage of preliminary inquiry under Chapter XV of the Cr.P.C. the Magistrate/Court has simply to look into the matter superficially so as to see whether a prima facie case has been made out and it is out of scope to see that cases under Section 498 ( A) I.P.C. and 125 of the Code are pending against him at the instance of his wife ( Respondent No. 3) to consider the truthfulness and falsity of the allegations. If this aspect as urged before the Court is taken to be the correct interpretation of the provisions of Chapter XV and the above cited case laws, then the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion against any innocent person. Summoning of an accused person in a criminal case is a serious matter and the criminal law cannot be set into motion as a matter of course. To elucidate the point further, I may cite the instance that if the witnesses examined by the complainant under Section 200/202 of the Code stated that on a particular day, the sun had risen from the west- the question arises- whether such statements should be considered by the Magistrate simply for the reason that at the stage of preliminary inquiry under Chapter XV of the Code, he has to look into a disclosure of a prima facie case without going into the disputed questions of facts and the truthfulness of the statements. In this case, as aforementioned, the learned Special Court on a cursory perusal of the complaint upon examination of the complainant and his witnesses has converged to the opinion that there was sufficient ground for proceeding only under Section 323 I.P.C. However, he was of the opinion that there was no sufficient ground for proceeding under Section 394 and 397 I.P.C. The reason for his opinion given by the Special Court in the impugned order is founded on sound reasoning. Thus, the learned Special Court appears to have committed no glaring or manifest error or illegality while passing the impugned order. Thus, the learned Special Court appears to have committed no glaring or manifest error or illegality while passing the impugned order. It is worth mentioning here that the Special Judge under the U.P. Dacoity Affected Area, 1986 is empowered under Section 7 of the said Act to take cognizance upon a complaint of facts which constitute schedule offence as defined in the said Act. Section 323 I.P.C. is not within the category of the scheduled offence. Since the offence under Section 323 I.P.C. is not exclusively triable by a Court of Sessions, therefore, the Special Court exercising powers under Section 228 ( 1) ( a) Cr.P.C. has rightly transferred the case after taking cognizance under Section 323 I.P.C. to the Court of Judicial Magistrate concerned. Thus, the impugned order is absolutely within the four-corners of law and warrants no interference by this Court. In view of the discussion as made above, the revision has no merits and, therefore, dismissed.