Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Complaint Cannot Be Dismissed When Prima Facie Offence Is Disclosed By Meticulously Examining Prosecution Allegations.
JUDGEMENT TITLE : Umrao Singh Vs. State Of U.P. And Others. On 08/02/2012 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 7709 OF 2010.
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.53
AFR Criminal Misc. Application NO.7709 Of 2010

Umrao Singh ......................................Applicant

Vs.

State Of U.P. And Others ..................Opposite Parties.


Hon. Vinod Prasad,J.
Applicant, Umrao Singh Son Of (Late) Buddha Singh Has Approached This Court In The Instant Application U/s 482 Cr.P.C.(herein After Referred To As The Code), Being Aggrieved By The Order, Dated 12.1.2010, Passed By Chief Judicial Magistrate, J.P. Nagar, In Complaint Case No.4187 Of 2007, Umrao Vs. Akil And Others, Under Sections 302 And 452 I.P.C., P.S. Saidangali, District J.P. Nagar, By Which Order Chief Judicial Magistrate Has Dismissed The Complaint Of The Applicant Umrao Singh U/s 203 Of The Code.
In This Application, Notices Were Served On Private Respondents No. 2 To 5 And They Have Filed A Counter Affidavit Through Shri Rajeshwar Singh, Advocate.
I Have Heard Shri P.C. Srivastava, Learned Counsel For The Applicant, Shri Rajeshwar Singh, Learned Counsel For The Respondent Accused No. 2 To 5 And Sri Patanjali Misra, Learned AGA For Respondent No.1 State. Notice Served On Shri B.R. Singh, Another Learned Counsel For Respondent No. 2to 5, Was Tendered In Court Today, Which Is Taken On Record And Shall Form The Part Of The Record.
A Brief Resume Of Back Ground Essential Facts Indicates That The Complainant Applicant Umrao Singh Lodged A Complaint Before C.J.M., J.P. Nagar, Annexure No.1, On 29.10.2004, Registered As Complaint Case No.590 Of 2004, Umrao Singh Vs. Akil And Others, U/s 302,452 IPC, Leveling Allegations Thereunder That Complainant/ Applicant Was Residence Of Village Pansukha Milak And Was A Village Watchman( Chowkidar). A Murderous Assault Was Made On His Father Buddha Singh (since Murder) On 29.2.2000 At 2.00 A.M In The Night By Respondent No. 2 To 5, Namely Akil, Ali Ahmad, Anwar And Farman, Regarding Which An F.I.R. Of Cr. No. 82 Of 2000, U/s 307 IPC, Was Registered And Ultimately Under Taken Investigation Resulted In Charge Sheeting Of Those Accused, On The Basis Of Which They Were Summoned By The Magistrate To Face The Trial For The Offence Of Attempt To Murder U/s 307 IPC. Finding Their Case Triable By The Session's Court, It Was Committed To Session's Court And Was Registered As S.T. No.649 Of 2001, State Versus Akil And Others. Said Trial Was Allotted To Additional/Special Session's Judge, Where It Was Pending On The Date Of The Present Incident. 5.8.2004 Was Date Fixed In The Aforesaid Trial For Recording Of Evidence /depositions Of Injured Buddha Singh, Father Of The Complainant. Accused Persons Were Pressurizing Buddha Singh Not To Depose Against Them In The Aforesaid Session's Trial, But Injured Buddha Singh Was Adamant For Testifying Against Them. Since Accused Could Not Compel Buddha Singh To Desist From Giving Evidence Against Them, Therefore, On The Intervening Night Between 24/25.7.2004, At 12.00 P.M., All Four Accused(respondent No. 2 To 5) Armed With Country-made Pistols Climbed Upon The Roof Of Complainant's House, Where Buddha Singh Was In A Deep Slumber. On The Adjacent Roof , Complainant And His Brother Jagdish Were Also Sleeping. At The Instigation Of Ali Ahmad, Respondent No.3, Complaint Umrao And His Brother Woke Up And Tried To Resists The Accused But Without Success. Ali Ahmad, Respondent O. 3, Thereafter, Shot Dead Buddha Singh, From Point Blank Range, Causing Injuries On His Chest. Gun Fire Sound, Attracted Smt. Ramwati, Complainant's Wife And Other Locality Neighbors At The Scene, On Which Murderers Escaped From The Spot Threatening Complainant/ Applicant Inhibiting Him Not To Lodge FIR Against Them , Otherwise He Will Meet The Same Destiny As That Of The Deceased Father.
Complainant Umrao Singh Went To The Police Station Saidangali At Dawn Of 25.7.2004 And Lodged F.I.R. About The Incident At 3.30 A.M. Against Named Accused, Which F.I.R. Was Scribed By Om Prakash As Crime No.597 Of 2004, Under Sections 302,452 I.P.C. Police Commenced Investigation Into The Murder Crime But, In Midst With Of It, Colluded With Accused By Exonerating Them And Charge Sheeting Complainant Umrao Singh And His Associates Shareef, Sajid And Amir Hasan, As The Culprits Of Murder Of Buddha Singh. On The Basis Of The Said Charge Sheet, These Accused Were Summoned, Their Case Committed To Session's Court For Trial, Where It Was Pending.
Since Police Connived And Sides With Accused, Complainant Umrao Singh Moved Various Applications To Police Officers To Proceed Against Real Assailants, But All His Efforts Went In Vain And, Therefore, Left With No Option, And Viable Alternative, Complainant Umrao Singh Approached C.J.M. And Filed Aforementioned Complaint, On 29.10.2004, As Annexure No.1.
Following Procedure Of Complaint Case C.J.M. Recorded Inquiry Statements Of The Complainant Under Section 200 Cr.P.C. Vide Annexure No.2 And Those Of His Witnesses Smt. Ramwati(PW1), Jagdish(PW2), Akil Ahmad(PW3), Arif(PW4), Dr. Avnish Kumar Singh(P.W.5), Om Prakash (P.W.6), H.C.P. Surendra Singh(P.W.7),u/s 202 Of The Code, Which All Statemets Have Been Annexed Cumulatively As Annexure No.3&4 To The Appended Affidavit. Vide Order Dated 12.8.2008(Annexure No. 5) C.J.M. Noted That These Statements, Annexure No. 3 &4, Does Not Contain Signatures Of The Presiding Officer And No Inquiry Was Conducted Regarding Pending Session's Trial , In Respect Of Murder Of Budha Singh, Which Ought To Have Been Conducted And Hence It Directed Re-examination Of All The Witnesses U/s 202 Of The Code. Aggrieved By The Aforesaid Order, Annexure No.5, Dated 12.8.2008, Complainant Approached This Court U/s 482 Cr.P.C., Vide Annexure No.6, But Without Success, As Aforesaid 482 Cr.P.C. Application Was Disposed Of Vide Order Dated 1.12.2008 As This Court Did Not Find Any Error In The Impugned Order Passed By The C.J.M. Dated 12.8.2008.
After Aforesaid Proceedings, For The Second Time Inquiry Statements Of Witnesses Were Recorded By Ld. C.J.M. Under Which Complainant Umrao Singh Was Examined Under Section 200 Cr.P.C. Vide Annexure No.7, And Smt. Ramwati(C.W.1), Jagdish( C.W.2), Aklil Ahmad(C.W.3) And Mohd. Arif(C.W.4) Were Examined Under Section 202 Cr.P.C. Vide Annexure No. 8. After Recording Aforesaid Statements, Vide Impugned Order Dated 12.1.2010, Vide Annexure No.11, That Ld. C.J.M., J.P. Nagar, Under Section 203 Cr.P.C. Dismissed The Complainant Of The Applicant/ Complainant, Which Order Is Under Challenge In The Instant 482 Application. One Important Fact, Which Requires To Be Mentioned At This Stage Is That, Due To Murder Of Injured Budha Singh, He Could Not Testify In 307 I.P.C. Trial, Which Ultimately Ended In Acquittal Vide Judgment And Order Dated 8.10.2004 Passed By Special Session's Judge, J.P. Nagar, Vide Annexure No.10.
On The Preceding Facts, I Have Heard Ld. Counsel For The Applicant, Sri Rajeshwar Singh, Learned Counsel For Respondent Nos. 2 To 5, And Sri Patanjali Mishra, Learned AGA For The State And Have Perused The Application Along With The Affidavit And Counter Affidavit Filed On Behalf Of The Accused Respondents Nos. 2 To 5.
It Is Contended By Applicant's Counsel That While Passing Impugned Order, Under Section 203 Cr.P.C., C.J.M., J.P. Nagar, Transgressed Limits Of His Power And Judicial Discipline Vested In Him At That Stage And Has Vetted Prosecution Evidences In All It's Pros And Cons Without Affording Any Opportunity To The Complainant To Establish His Case And, Therefore, Impugned Order Is Patently Illegal, Unjust, Against All Canons Of Judicial Discipline And Be Set Aside. It Is Submitted That, At The Stage Of Summoning, Only A Prima Facie Case Has To Be Looked Into And, If The Same Is Disclosed, No Further Roving Enquiry Is Required To Be Conducted To Summon An Accused. Learned Counsel Referred To Various Passage From The Impugned Order To Support His Submissions And Bring Home His Contentions. He Further Submitted That CJM, Illegally Considered Merits And Facts Of A, All To-gather Different Case,ie: Session's Trial, While Considering Question Of Summoning Of Accused In The Complaint Case And , On That Basis Had Dismissed Complaint U/s 203 Of The Code And Consequently Impugned Order Is Indefensible And Has To Be Scored Out. All The Prosecution Witnesses Had Supported Complainant Version Is All It's Material Aspects And Prima Facie Offences Were Disclosed And Therefore There Was Scope For The CJM , But To Summon The Accused To Stand Trial. There Could Have Been Any Comparision Between Session's Trial And Complaint Case , As Both The Cases Emanated From All Together Different Evidences With Different Allegations. Concludingly, It Was Submitted That Impugned Order, U/s 203 Of The Code, Be Set Aside And The Mater Be Remanded Back For Re-decision. It Was Also Argued That In The Murder Of Complainant's Father, Police Connived And Sided With Named Accused And Had Maliciously Charge Sheeted The Applicant/ Complainant And His Associates By Fabricating A Fib And Submitting A Mendacious Report Arraigning Them As Accused.
Sri Rajeshwar Singh, Learned Counsel For The Accused Respondent No. 2 To 5, Conversely Submitted That For The Crime Of Murder Of Budha Singh, Complainant And His Associates Are Already Facing A Trial In The Session's Court, Which Is At The Fag End, And, Therefore, Impugned Order Cannot Be Set Aside. He, Therefore, Supported The Impugned Order By Further Contending That Source Of Light Was An Important Aspect And The C.J.M. Had Found The Case Of The Complainant Fabricated By A Detail Appreciations Of Facts And Circumstances And Consequently Impugned Order Cannot Be Scored Out.
Learned AGA, Assisting The Court Argued That The Impugned Order Cannot Be Upheld Being Beyond The Scope Of Inquiry Under Section 203 Cr.P.C.
I Have Considered The Arguments Raised By Both The Sides And Have Perused The Affidavit, Counter Affidavit And Other Material On Record. Before Embarking Upon Merits And Demerits Of Rival Contentions, A Glimpse On The Scope Of Inquiry And Power Of Magistrate U/s 203/ 204 Of The Code, As Has Been Succinctly But Lucidly Expounded By The Apex Court And By Various High Courts, Makes It Evident, That A Complaint Can Be Dismissed Only For The Reason That No Prima Facie Case Is Disclosed Against The Accused Requiring His Prosecution For A Criminal Charge. The Scope Of Inquiry At That Stage Is Circumscribed In A Very Narrow Area And The Whole Through Which It Has To Be Peeped Through Is A Pin Hole. The Test And Appreciation Of Evidences, Which Is Required At The Final Stage Of Acquitting Or Convicting An Accused Is Not To Be Applied At The Stage Of Summoning. At That Stage A Roving Inquiry Into Prosecution Allegations In All It's Pros And Cons Is Not Required. This Aspect Is Born Out From The Wordings Of Section 203 Cr.P.C. Itself Wherein It Has Been Ordained That If "the Magistrate Is Of The Opinion That There Is No Sufficient Grounds For Proceeding" Then He Can Dismiss The Complaint. The Word "sufficient Grounds For Proceedings" Have Been Explained In It's Ambit And Scope In Various Judicial Pronouncements By The Apex Court And Various High Courts, Where In It Has Been Held That This Expression Means Only Disclosure Of Prima Facie Case And Nothing More. Scanning Of Material And Complainant's Evidences At That Stage Cannot Be Equated With Scanning And Appreciation As Is Required While Deciding The Case Finally. Magistrate Is Not To Weigh And Evaluate Evidence Meticulously. Here It Will Be Appropriate To Take Note Of Some Of The Pronouncements Propounding Such A View. In Shivjee Singh V. Nagendra Tiwary And Ors: AIR 2010 SC 2261 It Has Been Held By The Apex Court As Under:-
"8. The Object Of Examining The Complainant And The Witnesses Is To Ascertain The Truth Or Falsehood Of The Complaint 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 Sections 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. Finds Adequate Support From The Judgments Of This Court In R.C. 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. Videocon International Ltd. (2008) 2 SCC 492 : (AIR 2008 SC 1213 : 2008 AIR SCW 1203).
9. In Chandra Deo Singh V. Prokash Chandra Bose (supra), It Was Held That Where There Was Prima Facie Evidence, The Magistrate Was Bound To Issue Process And Even Though The Person Charged Of An Offence In The Complaint Might Have A Defence, The Matter Has To Be Left To Be Decided By An Appropriate Forum At An Appropriate Stage. It Was Further Held That The Issue Of Process Can Be Refused Only When The Magistrate Finds That The Evidence Led By The Complainant Is Self Contradictory Or Intrinsically Untrustworthy.
10. In Kewal Krishan V. Suraj Bhan, (AIR 1980 SC 1780) (supra), This Court Examined The Scheme Of Sections 200 To 204 And Held :
"At The Stage Of Sections 203 And 204 Of The Criminal Procedure Code In A Case Exclusively Triable By The Court Of Session, All That The Magistrate Has To Do Is To See Whether On A Cursory Perusal Of The Complaint And The Evidence Recorded During The Preliminary Inquiry Under Sections 200 And 202 Of The Criminal Procedure Code, There Is Prima Facie Evidence In Support Of The Charge Levelled Against The Accused. All That He Has To See Is Whether Or Not There Is "sufficient Ground For Proceeding" Against The Accused. At This Stage, The Magistrate Is Not To Weigh The Evidence Meticulously As If He Were The Trial Court. The Standard To Be Adopted By The Magistrate In Scrutinizing The Evidence Is Not The Same As The One Which Is To Be Kept In View At The Stage Of Framing Charges."
11. The Aforesaid View Was Reiterated In Mohinder Singh V. Gulwant Singh (AIR 1992 SC 1894 : 1992 AIR SCW 2189) (supra) In The Following Words :
"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. But The Enquiry At That Stage Does Not Partake The Character Of A Full Dress Trial Which Can Only Take Place After Process Is Issued Under Section 204 Of The Code Calling Upon The Proposed Accused To Answer The Accusation Made Against Him For Adjudging The Guilt Or Otherwise Of The Said Accused Person. Further, The Question Whether The Evidence Is Adequate For Supporting The Conviction Can Be Determined Only At The Trial And Not At The Stage Of The Enquiry Contemplated Under Section 202 Of The Code. To Say In Other Words, During The Course Of The Enquiry Under Section 202 Of The Code, The Enquiry Officer Has To Satisfy Himself Simply On The Evidence Adduced By The Prosecution Whether Prima Facie Case Has Been Made Out So As To Put The Proposed Accused On A Regular Trial And That No Detailed Enquiry Is Called For During The Course Of Such Enquiry.
12. The Use Of The Word 'shall' In Proviso To Section 202(2) Is Prima Facie Indicative Of Mandatory Character Of The Provision Contained Therein, But A Close And Critical Analysis Thereof Along With Other Provisions Contained In Chapter XV And Sections 226 And 227 And Section 465 Would Clearly Show That Non Examination On Oath Of Any Or Some Of The Witnesses Cited By The Complainant Is, By Itself, Not Sufficient To Denude The Concerned Magistrate Of The Jurisdiction To Pass An Order For Taking Cognizance And Issue Of Process Provided He Is Satisfied That Prima Facie Case Is Made Out For Doing So. Here It Is Significant To Note That The Word 'all' Appearing In Proviso To Section 202(2) Is Qualified By The Word 'his'. This Implies That The Complainant Is Not Bound To Examine All The Witnesses Named In The Complaint Or Whose Names Are Disclosed In Response To The Order Passed By The Magistrate. In Other Words, Only Those Witnesses Are Required To Be Examined Whom The Complainant Considers Material To Make Out A Prima Facie Case For Issue Of Process. The Choice Being Of The Complainant, He May Choose Not To Examine Other Witnesses. Consequence Of Such Non-examination Is To Be Considered At The Trial And Not At The Stage Of Issuing Process When The Magistrate Is Not Required To Enter Into Detailed Discussions On The Merits Or Demerits Of The Case, That Is To Say Whether Or Not The Allegations Contained In The Complaint, If Proved, Would Ultimately End In Conviction Of The Accused. He Is Only To See Whether There Exists Sufficient Ground For Proceeding Against The Accused."
IN S. N. Palanitkar And Others Vs. State Of Bihar And Another:AIR SC 2001 SC 2960 It Has Been Held By The Apex Court As Under:-
"The Words 'sufficient Ground' Used Under Section 202 Have To Be Construed To Mean The Satisfaction That A Prima Facie Case Is Made Out Against The Accused And Not Sufficient Ground For The Purpose Of Conviction.
16..This Court In Nirmaljit Singh Hoon V. The State Of West Bengal And Others, (1993) (3) SCC 753), In Para 22, Referring To Scheme Of Sections 200-203 Of Cr.P.C. Has Explained That "The Section Does Not Say That A Regular Trial Of Adjudging Truth Or Otherwise Of The Person Complained Against Should Take Place At That Stage, For, Such A Person Can Be Called Upon To Answer The Accusation Made Against Him Only When A Process Has Been Issued And He Is On Trial. Section 203 Consists Of Two Parts. The First Part Lays Down The Materials Which The Magistrate Must Consider, And The Second Part Says That If After Considering Those Materials There Is In His Judgment No Sufficient Ground For Proceeding, He May Dismiss The Complaint. In Chandra Deo Singh V. Prakash Chandra Bose (1964 (1) SCR 639) Where Dismissal Of A Complaint By The Magistrate At The Stage Of Section 202 Inquiry Was Set Aside, This Court Laid Down That The Test Was Whether There Was Sufficient Ground For Proceeding And Not Whether There Was Sufficient Ground For Conviction, And Observed (p. 653) That Where There Was Prima Facie Evidence, Even Though The Person Charged Of An Offence In The Complaint Might Have A Defence, The Matter Had To Be Left To Be Decided By The Appropriate Forum At The Appropriate Stage And Issue Of A Process Could Not Be Refused. Unless, Therefore, The Magistrate Finds That The Evidence Led Before Him Is Self-contradictory, Or Intrinsically Untrutworthy, Process Cannot Be Refused If That Evidence Makes Out A Prima Facie Case".
In Kewal Krishan V. Suraj Bhan And Another:AIR 1980 SC 1780, It Has Been Held By The Apex Court As Under:-
"9. In The Instant Case, There Was Prima Facie Evidence Against Suraj Bhan Accused Which Required To Be Weighed And Appreciated By The Court Of Session. At The Stage Of Sections 203 And 204, Criminal Procedure Code In A Case Exclusively Triable By The Court Of Session, All That The Magistrate Has To Do Is To See Whether On A Cursory Perusal Of The Complaint And The Evidence Recorded During The Preliminary Inquiry Under Sections 200 And 202, Criminal Procedure Code, There Is Prima Facie Evidence In Support Of The Charge Levelled Against The Accused. All That He Has To See Is Whether Or Not There Is "sufficient Ground For Proceeding" Against The Accused. At This Stage, The Magistrate Is Not To Weigh The Evidence Meticulously As If He Were The Trial Court. The Standard To Be Adopted By The Magistrate In Scrutinising The Evidence Is Not The Same As The One Which Is To Be Kept In View At The Stage Of Framing Charges. This Court Has Held In Ramesh Singh's Case (ibid), That Even At The Stage Of Framing Charges The Truth, Veracity And Effect Of The Evidence Which The Complaint Produces Or Proposes To Adduce At The Trial, Is Not To Be Meticulously Judged. The Standard Of Proof And Judgment, Which Is To Be Applied Finally Before Finding The Accused Guilty Or Otherwise, Is Not Exactly To Be Applied At The Stage Of Framing Charges. A Fortiori, At The Stage Of Sections 202/204, If There Is Prima Facie Evidence In Support Of The Allegations In The Complaint Relating To A Case Exclusively Triable By The Court Of Session, That Will Be A Sufficient Ground For Issuing Process To The Accused And Committing Them For Trial To The Court Of Session.
10. The Proposition That In Cases Instituted On Complaint In Regard To An
offence Exclusively Triable By The Court Of Session, The Standard For Ascertaining Whether Or Not The Evidence Collected In The Preliminary Inquiry Discloses Sufficient Grounds For Proceeding Against The Accused Is Lower Than The One To Be Adopted At The Stage Of Framing Charges In A Warrant Case Triable By The Magistrate, Is Now Evident From The Scheme Of The New Code Of 1973. Section 209 Of The Code Of 1973 Dispenses With The Inquiry Preliminary To Commitment In Cases Triable Exclusively By A Court Of Session, Irrespective Of Whether Such A Case Is Instituted On A Criminal Complaint Or A Police Report. Section 209 Says : "When A Case Instituted On A Police Report Or Otherwise The Accused Appears Or Is Brought Before The Magistrate And It Appears To The Magistrate That The Offence Is Triable Exclusively By The Court Of Sessions, He Shall Commit The Case To The Court Of Session". If The Committing Magistrate Thinks That It Is Not Necessary Of Commit The Adduced Who May Be On Bail To Custody, He May Not Cancel The Bail. This Has Been Made Clear By The Words "subject To The Provisions Of This Code Relating To Bail" Occurring In Clause (b) Of Section 209. Therefore, If The Accused Is Already On Bail, His Bail Should Not Be Arbitrarily Cancelled. Section 227 Of The Code Of 1973 Has Made Another Beneficent Provision To Save The Accused From Prolonged Harassment Which Is Necessary Concomitant Of A Protracted Trial. This Section Provides That If Upon Considering The Record Of The Case, The Documents Submitted With It And The Submissions Of The Accused And The Prosecution, The Judge Is Not Convinced That There Is Sufficient Ground For Proceeding Against The Accused, He Has To Discharge The Accused Under This Section And Record His Reasons For So Doing.
11. Although The Reasons Given By The Magistrate For Rejecting The Evidence Produced By The Complainant In The Preliminary Inquiry Against Suraj Bhan In Regard To The Accusation That He Had Shot Dead Banta Singh, Are Not Devoid Of Merit, Yet, It Appears That In Meticulously Appreciating The Evidence The Magistrates Had Over-stepped The Limits Of His Discretion. In Other Words, This Is Not A Case Where The Magistrate Lacked Inherent Jurisdiction To Pass The Impugned Order. This Is Only A Case Where The Magistrate Has Committed An Error Amounting To An Irregularity, If Not A Clear Illegality, In The Exercise Of His Jurisdiction."
In Devta Shankar Misra Versus VI Additional Session's Judge, Varanasi:1998(37) ACC 11, While Setting Aside Impugned Orders Passed By Both The Courts Below, It Has Been Observed By Our Court As Under:-
"12. The Jurisdiction Of The Court At The Stage Of 203 Cr.P.C. Is Very Limited. The Court Is Not Expected To Sift Evidence And Analyse Thoroughly As If It Were A Case To Be Disposed Of Finally.................Therefore What Is Required Under Section 203 Cr.P.C. Is That Believing Entire Evidence And Circumstances To Be True, If A Reasonable Man Find That The Allegations Against Him Were Correct Then Normally The Accused Should Be Summoned And The Trial Should Proceed...................
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14. Unfortunately I Find That Both The Courts Below Have Fallen In Trap Laid By The Accused And Have Decided The Matter Finally That The Prosecution Had Failed To Make Out A Case."
In Vijai Tiwari And Others Versus State Of U.P. And Others: 1998 (37) ACC 491 While Upholding Impugned Order Of Summoning Against The Applicants, It Was Held By This Court As Under :-
" 4. It Is Well Established Law That The Words"sufficient Grounds" Used In Section 203 Of Cr.P.C. Have Been Construed To Mean The Satisfaction That A Prima Facie Case Is Made Out Against The Person Accused By The Evidence Of Witnesses Entitled To A Reasonable Degree Of Credit And Not Sufficient Ground For The Purposes Of Conviction.(see R.G.Ruia V.State Of Bombay).
5. It Is Well Settled Law That At The Stage Of Summoning, The Accused Has No Locus Standi Where There Is Prima Facie Evidence, Even Though The Person Charged Of An Offence Might Have A Defence, The Matter Has To Be Left To Be Decided By The Appropriate Forum At The Appropriate Stage And Issue Of Process Cannot Be Refused"
From The Aforesaid Decisions, The Position Of Law Regarding Scope Of Inquiry At The Stage Of Summoning, Is Conspicuously Well Settled That At That Stage Only Disclosure Of A Prima Facie Case Has To Be Looked Into And Nothing More. At This Stage, Magistrate Is Not Required To Conduct A Roving Enquiry Into Various Facets And Disputed Question Of Facts To Fathom Out A Defence For The Accused Yet To Be Tried And Scuttle The Prosecution At It's Very Inception. Whether The Witnesses Are Reliable Or Not, Whether The Prosecution Allegations Are Reliable Or Not, Whether The Witnesses Are Credible And Confidence Inspiring Or Not, All These Aspects Are Alien To The Scope Of Enquiry At That Stage. Magistrate Cannot Go Into These Aspects To Aggrandize Scope Of Enquiry To Codswallop Extent.
When Impugned Order Is Examined And Analyzed On The Scales Of Above Expounded Law, It Becomes Evident That The Same Has Been Passed Ignoring Above Trite Law And Hence Cannot Be Sustained. A Perusal Of Impugned Order Indicates That Not Only CJM Had Trampled Down Scope Of Inquiry But Has Recorded Findings Which Cannot Be Countenanced At All. He Seems To Have Passed Impugned Order Only To Help The Accused Without Any Application Of Mind. Most Of The Findings Recorded By Him Are Puerile And Indefensible. Ld. CJM Had Considered Those Material Also, Which He Had No Authority To Consider At The Stage Of Summoning As It Were Related To Another Trial Totally Unconcerned With Complaint Filed By The Applicant Complainant. Ld. CJM Completely Eschewed To Note That U/s 203 Of The Code, He Could Have Considered Only Statements On Oath U/s 200 And 202 Of The Code And Nothing Else. He Seems To Have Deliberately And Intentionally Ignored Statutory Words "if, After Considering The Statements On Oath (if Any )of The Complainant And Of The Witnesses And The Result Of The Inquiry Or The Investigation(if Any)under Section 202 ..............". Ld. CJM Has Considered Record Of Earlier 307 IPC Trial, In Which Deceased Was Attempted To Be Annihilated By These Very Accused Respondent No. 2 To 5, Vide S.T.No. 649 /01, State Versus Akil And Others, And While Taking Note Of The Fact That The Injured Could Not Give Evidence In That Trial Because He Was Murdered, Ld. CJM Also Noted That Two Prosecution Witnesses In That Trial, Namely PW1 Sundar Lal And PW2 Ram Gopal Had Turned Hostile And Accused Were Acquitted In That Trial. Not Only This Ld. CJM Also Considered Record Of Another Session's Trial S.T.No. 92/ 05, In Which Trial Applicant Along With Associates Are Accused For Murdering Budha Singh.All Theses Material Were Alien To The Scope Of Inquiry U/s 203 Of The Code And Were Illegally Considered By The CJM. Complaint And Statements Of Witnesses In The Present Complaint Case Clearly And Specifically Disclosed Prima Facie Case Against The Accused Respondent No. 2 To 5 And Hence, For Their Summoning No Further Evidence Was Required. Offences Disclosed In The Complaint Were Triable By Session's Court And Hence CJM Could Not Have Dismissed The Complaint , When Prima Facie Offences Were Disclosed . On The Above Two Legal Propositions Regarding Scope Of Inquiry And Power Of Dismissal Of Complaint Vested In Magistrate, When Prima Facie Offences Are Disclosed, Reliance Can Be Placed On Following Apex Court Decisions:-
In Nirmaljit Singh Hoon Versus State Of W. B.and Others: AIR 1972 SC 2639 It Has Been Held By The Apex Court As Under:-
"22. Under Sec. 190 Of The Code Of Criminal Procedure, A Magistrate Can Take Cognizance Of An Offence, Either On Receiving A Complaint Or On A Police Report Or On Information Otherwise Received. Where A Complaint Is Presented Before Him, He Can Under S. 200 Take Cognizance Of The Offence Made Out Therein And Has Then To Examine The Complainant And His Witnesses. The Object Of Such Examination Is To Ascertain Whether There Is A Prima Facie Case Against The Person Accused Of The Offence In The Complaint, And To Prevent The Issue Of Process On A Complain Which Is Either False Or Vexatious Or Intended Only To Harass Such A Person. Such Examination Is Provided Therefore To Find Out Whether There Is Or Not Sufficient Ground For Proceeding. Under Section 202, A Magistrate, On Receipt Of A Complaint, May Postpone The Issue Of Process And Either Inquire Into The Case Himself Or Direct An Inquiry To Be Made By A Magistrate Subordinate To Him Or By A Police Officer For Ascertaining Its Truth Or Falsehood. Under Section 203, He May Dismiss The Complaint, If, After Taking The Statement Of The Complainant And His Witnesses And The Result Of The Investigation, If Any, Under Section 202, There Is In His Judgment "no Sufficient Ground For Proceeding". The Words 'sufficient Ground' Used Also In Sec. 209 Have Been Construed To Mean The Satisfaction That A Prima Facie Case Is Made Out Against The Person Accused By The Evidence Of Witnesses Entitled To A Reasonable Degree Of Credit, And Not Sufficient Ground For The Purpose Of Conviction. (See R. G. Ruia V. State Of Bombay. 1958 SCR 618 = (AIR 1958 SC 97). ) In Vadilal Panchal V. Ghadigaonkar, (1961) 1 SCR 1 = (AIR 1960 SC 1113) This Court Considered The Scheme Of Sections 200 To 203 And Held That The Inquiry Envisaged There Is For 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. The Section Does Not Say That A Regular Trial Of Adjudging The Truth Or Otherwise Of The Person Complained Against Should Take Place At That Stage, For Such A Person Can Be Called Upon To Answer The Accusation Made Against Him Only When A Process Has Been Issued And He Is On Trial. Section 203 Consists Of Two Parts. The First Part Lays Down The Materials Which The Magistrate Must Consider, And The Second Part Says That If After Considering Those Materials There Is In His Judgment No Sufficient Ground For Proceeding, He May Dismiss The Complaint. In Chandra Deo Singh V. Prokash Chandra Bose, (1964) 1 SCR 639 = (AIR 1963 SC 1430) Where Dismissal Of A Complaint By The Magistrate At The Stage Of Section 202inquiry Was Set Aside, This Court Laid Down That The Test Was Whether There Was Sufficient Ground For Proceeding And Not Whether There Was Sufficient Ground For Conviction, And Observed (P. 653) That Where There Was Prima Facie Evidence, Even Though The Person Charged Of An Offence In The Complaint Might Have A Defence, The Matter Had To Be Left To Be Decided By The Appropriate Forum At The Appropriate Stage And Issue Of A Process Could Not Be Refused. Unless Therefore, The Magistrate Finds That The Evidence Led Before Him Is Self-contradictory, Or Intrinsically Untrustworthy, Process Cannot Be Refused If That Evidence Makes Out A Prima Facie Case. In A Revision Against Such A Refusal, The High Court Also Has To Apply The Same Test.............."
In Chandra Deo Singh Versus Prakash Chandra Bose Alias Chabi Bose And Another: AIR 1963 SC 1430 It Has Been Held As Under:-
"7. Taking The First Ground, It Seems To Us Clear From The Entire Scheme Of Ch. XVI Of The Code Of Criminal Procedure That An Accused Person Does Not Come Into The Picture At All Till Process Is Issued. This Does Not Mean That He Is Precluded From Being Present When An Enquiry Is Held By A Magistrate. He May Remain Present Either In Person Or Through A Counsel Or Agent With A View To Be Informed Of What Is Going On. But Since The Very Question For Consideration Being Whether He Should Be Called Upon To Face An Accusation Nor He Has No Right To Take Part In The Proceedings No Has The Magistrate Any Jurisdiction To Permit Him To Do So. It Would Follow From This, Therefore, That It Would Not Be Open To Magistrate To Put Any Question To Witnesses At The Instance Of The Person Named As Accused But Against Whom Process Has Not Been Issued; Nor Can He Examine Any Witnesses At The Instance Of Such A Person. Of Course, The Magistrate Himself Is Free To Put Such Questions To The Witnesses Produced Before Him By The Complainant As He May Think Proper In The Interests Of Justice. But Beyond That, He Cannot Go. It Was, However, Contended By Mr. Sethi For Respondent No, 1 That The Very Object Of The Provisions Of Ch. XVI Of The Code Of Criminal Procedure Is To Prevent An Accused Person From Being Harassed By A Frivolous Complaint And, Therefore, Power Is Given To A Magistrate Before Whom Complaint Is Made To Postpone The Issue Of Summons To The Accused Person Pending The Result Of An Enquiry Made Either By Himself Or By A Magistrate Subordinate To Him. A Privilege Conferred By These Provisions Can According To Mr. Sethi, Be Waived By The Accused Person And He Can Take Part In The Proceedings. No Doubt, One Of The Objects Behind The Provisions Of S. 202,Cr.P.C Is To Enable The Magistrate To Scrutinise Carefully The Allegations Made In The Complaint With A View To Prevent A Person Named Therein As Accused From Being Called Upon To Face An Obviously Frivolous Complaint. But There Is Also Another Object Behind This Provision And It Is To Find Out What Material There Is To Support The Allegations Made In The Complaint. It Is The Bounden Duty Of The Magistrate While Making An Enquiry To Elicit All Facts Not Merely With A View To Protect The Interest Of An Absent Accused Persons, But Also With A View To Bring To Boor: A Person Or Persons Against Whom Grave Allegations Are Made. Whether The Complaint Is Frivolous Or Not Has, At That Stage, Necessarily To Be Determined On The Basis Of The Material Placed Before Him By The Complainant. Whatever Defence The Accessed May Have Can Only Be Enquired Into At The Trial. An Enquiry Under S. 202 Can In No Sense Be Characterised As A Trial For The Simple Reason That In Law There Can Be But One Trial For An Offence. Permitting An Accused Person To Intervene During The Enquiry Would Frustrate Its Very Object And That Is Why The Legislature Has Made No Specific Provision Permitting An Accused Person To Take Part In An Enquiry. It Is True That There Is No Direct Evidence In The Case Before Us That The Two Persons Who Were Examined As Court Witnesses Were So Examined At The Instance Of Respondent No.1 But From The Fact That They Were Persons Who Were Alleged To Have Been The Associates Of Respondent No.1 In The First Information Report Lodged By Panchanan Roy And Who Were Alleged To Have Been Arrested On The Spot By Some Of The Local People, They Would Not Have Been Summoned By The Magistrate Unless Suggestion To That Effect Had Been Made By Counsel Appearing For Respondent No. 1. This Inference Is Irresistible And We Hold That On This Ground, The Enquiry Made By The Enquiring Magistrate Is Vitiated. In This Connection, The Observations Of This Court In Vadilal Panchal V. Dattatraya Dulaji, (1961) 1 SCR At P.9: (AIR SC 1113 At P. 1116 May Usefully Be Quoted :
"The Enquiry Is For The Purpose Of Accertaining The Truth Or Falsehood Of The Complaint; That Is, For Acertaining 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. The Section Does Not Say That A Regular Trial For Adjuding The Guilt Or Otherwise Of The Person Complained Against Should Take Place At That Stage, For The Person Complained Against Can Be Legally Called Upon To Answer The Accusation Made Against Him Only When A Process Has Issued And He Is Put On Trial".
8. Coming To The Second Ground, We Have No Hesitation In Holding That The Test Propounded By The Learned Single Judge Of The High Court Is Wholly Wrong. For Determining The Question Whether Any Process Is To Be Issued Or Not, What The Magistrate Has To Be Satisfied Is Whether There Is "sufficient Ground For Proceeding" And Not Whether There Is Sufficient Ground For Conviction. Whether The Evidence Is Adequate For Supporting The Conviction Can Be Determined Only At The Trial And Not At The Stage Of Enquiry. A Number Of Decisions Were Cited At The Bar In Which The Question Of The Scope Of The Enquiry Under S.202 Has Been Considered. Amongst Those Decisions Are: Paranand Brahmachari V. Emperor, AIR 1930 Pat 30; Radha Kishan Sao V. S. K. Misra, AIR 1949 Pat 36; Ramkisto Sahu V. State Of Bihar, AIR 1952 Pat 125; Emperor V. J.A. Pinan, AIR 1931 Bom 524 And Baidya Nath Singh V. Musppatt, ILR 14 Cal 141. In All These Cases, It Has Been Held That The Object Of The Provisions Of S. 202 Is Enable The Magistrate To Form An Opinion As To Whether Process Should Be Issued Or Not And To Remove From His Mind Any Hesitation That He May Have Felt Upon The Mere Perusal Of The Complaint And The Consideration Of The Complainant's Evidence On Oath. The Courts Have Also Pointed Out In These Cases That What The Magistrate Has To See Is Whether There Is Evidence In Support Of The Allegations Of The Complainant And Not Whether The Evidence Is Sufficient To Warrant A Conviction. The Learned -Judges In Some Of These Cases Have Been At Pains To Observe That An Enquiry Under S. 202 Is No To Be Likened To A Trial Which Can Only Take Place After Process Is Issued, And That There Can Be Only One Trial. No Doubt, As Stated In Sub-sec. (1) Of S. 202 Itself, The Object Of The Enquiry Is To Ascertain The Truth Or Falsehood Of The Complaint, But The Magistrate Making The Enquiry Has To Do This Only With Reference To The Intrinsic Quality Of The Statements Made Before Him At The Enquiry Which Would Naturally Mean The Complaint Itself, The Statement On Oath Made By The Complaint And The Statements Made Before Him By Persons Examined At The Instance Of The Complainant.
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12. On The Basis Of These Observations It Was Urged That This Court Has Held That A Magistrate Has The Power To Weigh The Evidence Adduced At The Enquiry. As We Read The Decision It Does Not Lay Down An Inflexible Rule But Seems To Hold That While Considering The Evidence Tendered At The Enquiry It Is Open To The Magistrate To Consider Whether The Accused Could Have Acted In Self Defence. Fortunately, No Such Question Arises For Consideration In This Case But We May Point Out That Since The Object Of An Enquiry Under S. 202 Is To Ascertain Whether The Allegations Made In The Complaint Are Intrinsically True, The Magistrate Acting Under S. 203 Has To Satisfy Himself That There Is Sufficient Ground For Proceeding. In Order To Come To This Conclusion, He Is Entitled To Consider The Evidence Taken By Him Or Recorded In An Enquiry Under S.202, Or Statements Made In An Investigation Under That Section, As The Case May Be. He Is Not Entitled To Rely Upon Any Material Besides This. By "evidence Of Other Witnesses" The Learned Judges Had Apparently In Mind The Statements Of Persons Examined By The Police During Investigation Under S. 202. It Is Permissible Under S. 203 Of The Code To Consider Such Evidence Along With The Statements Of The Complainant Recorded By The Magistrate And Decide Whether To Issue Process Or Dismiss The Complaint. The Investigation In That Case Was Made By The Police Under S. 202 Cr.P.C. At The Instance By The Presidency Magistrate. Apparently, The Statements Of The Various Witnesses Questioned' By The Police Were Self-contradictory. That Being The Case, It Was Open To The Presidency Magistrate To Consider Which Of Them To Accept And Which To Reject. The Enquiring Magistrate Has Not Stated Nor Has The High Court Found In The Case Before Us That The Evidence Adduced On Behalf Of The Complainant And His Own Evidence Were Self-contradictory, And Therefore, It Could Not Be Said That There Was Anything Intrinsically False In The Allegations Made In The Complaint. Learned Counsel For The Appellant Referred Us To The Decision Of This Court In Ramgopal Ganpatrai Ria V. State Of Bombay, 1958 SCR 618 At P. 638.(AIR 1958 SC 97 At Pp. 106 And 107). In That Case, After Quoting A Passage From Halsbury's Laws Of England. Vol 10, 3rd Edn. In Art. 666 At P. 365 Where The Law Regarding Commitment For Trial Has Been Stated, This Court Has Observed:
"In Each Case, Therefore The Magistrate Holding The Preliminary Inquiry Has To Be Satisfied That A Prima Facie Case Is Made Out Against The Accused By The Evidence Of Witnesses Entitled To A Reasonable Degree Of Credit, And Unless He Is So Satisfied, He Is Not To Commit. Applying The Aforesaid Test To The Present Case, Can It Be Said That There Is No Evidence To Make Out A Prima Facie Case, Or That The Voluminous Evidence Adduced In This Case Is So Incredible That No Reasonable Body Of Persons Could Rely Upon It. As Already Indicated, In This Case, There Is A Large Volume Of Documentary Evidence The Latter Being Wholly Books And Registers And Other Documents Kept Or Is Used By The Mills Themselves Which May Lend Themselves To The Inference That The Accused Are Guilty Or To The Contrary Conclusion. The High Court Has Taken Pains To Point Out That This Is One Of Those Cases Where Much Can Be Said On Both Sides. It Will Be For The Jury To Decide Which Of The Two Conflicting Versions Will Find Acceptance At Their Hands. This Was Pre- Eminently A Case Which Should Have Been Committed To The Court Of Session For Trial, And It Is A Little Surprising That The Learned Presidency Magistrate Allowed Himself To Be Convinced To The Contrary".
Thus, Where There Is A Prima Facie Case Even Though Much Can Be Said On Both Sides, A Committing Magistrate Is Bound To Commit An Accused For Trial. All The Greater Reason, Therefore, That Where There Is Prima Facie Evidence, Even Though An Accused May Have A Defence Like That In The Present Case That The Offence Is Committed By Some Other Person Or Persons, The Matter Has To Be Left To Be Decided By The Appropriate Forum At The Appropriate Stage And Issue Of Process Cannot Be Refused. Incidentally, We May Point Out That The Offence With Which Respondent No. 1 Has Been Charged With Is One Triable By Jury. The High Court, By Dealing With The Evidence In The Way In Which It Has Done, Has In Effect Sanctioned The Usurpation By The Magistrate Of The Functions Of A Jury Which The Magistrate Was Wholly Incompetent To Do."
In Kewal Krishan, Versus Suraj Bhan And Another:AIR 1980 SC 1780
It Has Been Held As Under:-
"9. In The Instant Case, There Was Prima Facie Evidence Against Suraj Bhan Accused Which Required To Be Weighed And Appreciated By The Court Of Session. At The Stage Of Sections 203 And 204, Criminal Procedure Code In A Case Exclusively Triable By The Court Of Session, All That The Magistrate Has To Do Is To See Whether On A Cursory Perusal Of The Complaint And The Evidence Recorded During The Preliminary Inquiry Under Sections 200 And 202, Criminal Procedure Code, There Is Prima Facie Evidence In Support Of The Charge Levelled Against The Accused. All That He Has To See Is Whether Or Not There Is "sufficient Ground For Proceeding" Against The Accused. At This Stage, The Magistrate Is Not To Weigh The Evidence Meticulously As If He Were The Trial Court. The Standard To Be Adopted By The Magistrate In Scrutinising The Evidence Is Not The Same As The One Which Is To Be Kept In View At The Stage Of Framing Charges. This Court Has Held In Ramesh Singh's Case (ibid), That Even At The Stage Of Framing Charges The Truth, Veracity And Effect Of The Evidence Which The Complaint Produces Or Proposes To Adduce At The Trial, Is Not To Be Meticulously Judged. The Standard Of Proof And Judgment, Which Is To Be Applied Finally Before Finding The Accused Guilty Or Otherwise, Is Not Exactly To Be Applied At The Stage Of Framing Charges. A Fortiori, At The Stage Of Sections 202/204, If There Is Prima Facie Evidence In Support Of The Allegations In The Complaint Relating To A Case Exclusively Triable By The Court Of Session, That Will Be A Sufficient Ground For Issuing Process To The Accused And Committing Them For Trial To The Court Of Session.
10. The Proposition That In Cases Instituted On Complaint In Regard To An
offence Exclusively Triable By The Court Of Session, The Standard For Ascertaining Whether Or Not The Evidence Collected In The Preliminary Inquiry Discloses Sufficient Grounds For Proceeding Against The Accused Is Lower Than The One To Be Adopted At The Stage Of Framing Charges In A Warrant Case Triable By The Magistrate, Is Now Evident From The Scheme Of The New Code Of 1973. Section 209 Of The Code Of 1973 Dispenses With The Inquiry Preliminary To Commitment In Cases Triable Exclusively By A Court Of Session, Irrespective Of Whether Such A Case Is Instituted On A Criminal Complaint Or A Police Report. Section 209 Says : "When A Case Instituted On A Police Report Or Otherwise The Accused Appears Or Is Brought Before The Magistrate And It Appears To The Magistrate That The Offence Is Triable Exclusively By The Court Of Sessions, He Shall Commit The Case To The Court Of Session". If The Committing Magistrate Thinks That It Is Not Necessary Of Commit The Adduced Who May Be On Bail To Custody, He May Not Cancel The Bail. This Has Been Made Clear By The Words "subject To The Provisions Of This Code Relating To Bail" Occurring In Clause (b) Of Section 209. Therefore, If The Accused Is Already On Bail, His Bail Should Not Be Arbitrarily Cancelled. Section 227 Of The Code Of 1973 Has Made Another Beneficent Provision To Save The Accused From Prolonged Harassment Which Is Necessary Concomitant Of A Protracted Trial. This Section Provides That If Upon Considering The Record Of The Case, The Documents Submitted With It And The Submissions Of The Accused And The Prosecution, The Judge Is Not Convinced That There Is Sufficient Ground For Proceeding Against The Accused, He Has To Discharge The Accused Under This Section And Record His Reasons For So Doing."
In 2001 CrLJ 3601
In Karumuthu S. Chockalingam Versus T. Kannappan And Others:1977 Cr.L.J. 1382 It Has Been Held As Under:-
"9. A Magistrate Cannot Dismiss A Complaint Under S.203, Cr. P.C. Without Considering Whether There Is Prima Facie Evidence Of A Criminal Offence And In Exercising His Discretion Under S.203 The Magistrate Should Not Allow Himself To Be Influenced By Consideration Of The Motive By Which The Complainant May Have Been Actuated In Moving In The Matter; Nor By Any Other Consideration Outside The Facts Which Are Adduced By The Complainant In Support Of His Complaint.
10. The Decision Whether There Is Sufficient Ground For Dismissing A Complaint Under S.203 Of The Code Of Criminal Procedure Must Be Reached By The Exercise Of Discretion Based On Judicial Considerations. The Motive And Conduct Of The Complainant Are Not Relevant Considerations And In The Absence Of Any Finding That The Complaint Is False Or Unsustainable On The Evidence Likely To Be Available, The Passing Of An Order Of Dismissal Would Constitute An Irregularity With Which The High Court Has Jurisdiction To Deal. (Vide Gangu Reddi V. Samarapathj Mudali AIR 1916 Mad 303): (14 Cri LJ 633).
11. As Has Been Held By The Supreme Court In Vadilal Panchal V Dattatraya Dulaji AIR 1960 SC 1113: (1960 Cri LJ 1499).
"Section 203, Cr. P.C. Makes It Clear That The Judgment Which The Magistrate Has To Form Must Be Based On The Statements Of The Complainant And His Witnesses And The Result Of The Investigation Or Inquiry. But The Judgment Which The Magistrate Has To Form Is Whether Or Not There Is Sufficient Ground For Proceeding. This Does Not Mean That The Magistrate Is Bound To Accept The Result Of The Inquiry Or Investigation Or That He Must Accept Any Plea That Is Set Up On Behalf Of The Person Complained Against. The Magistrate Must Apply His Judicial Mind To The Materials On Which He Has To Form His Judgment; And In Arriving At His Judgment He Is Not Fettered In Any Way Except By Judicial Considerations."
"It Is True That One Of The Objects Behind The Provisions Of S.202 Is To Enable The Magistrate To Scrutinise Carefully The Allegations Made In The Complaint With A View To Prevent A Person Named Therein As Accused From Being Called Upon To Face An Obviously Frivolous Complaint. Whether The Complaint Is Frivolous Or Not Has At That Stage, Necessarily To Be Determined On The Basis Of The Material Placed Before Him By The Complainant. For Determining The Question Whether Any Process Is To Be Issued Or Not, What The Magistrate Has To Be Satisfied Is Whether There Is Sufficient Ground For Process And Not Whether There Is Sufficient Ground For Conviction Whether The Evidence Is Adequate For Supporting The Conviction Can Be Determined Only At The Trial And Not At The Stage Of Enquiry. The Object Of The Provisions Of S.202 Is To Enable The Magistrate To Form An Opinion As To Whether Process Should Be Issued Or Not And To Remove From His Mind Any Hesitation That He May Have Felt Upon The Mere Perusal Of The Complaint And The Consideration Of The Complainant's Evidence On Oath."(Vide Mohammedkutty V. Abdurahimankutty 1966 Mad LJ (Crl) 50 (Ker).
"The Reasons For Dismissing A Complaint Should Be Based On Inference Or Facts Arising From Or Disclosed By (1) The Complaint; (2) The Examination Of The Complainant; (3) The Investigation, If Any, Made Under The Powers Conferred By S.202 Of The Criminal Procedure Code".
In Giridhari Mohapatra And Others Versus. Smt. Parbati Dei,:1971 Cr.L.J. 184 It Has Been Held By Orissa High Court As Under:-
"4. The Point For Consideration In This Case Is Whether Applying The Aforesaid Tests, The Impugned Order Passed By The Learned Additional Sessions Judge Can Be Said To Be In­valid Or Passed On Insufficient Grounds. In The Present Case, It Is Not Disputed That The Exe­cutive Magistrate 1st Class Received The Com­plaint For Enquiry Under S. 202, Criminal P. C. On 2.3.65. Notice Was Given To The Police Authorities And Repeated Adjournments Appear To Have Been Taken By Them On Applications Expressing Difficulty To Attend On Some Ground Or Other To Watch The Proceedings. In All, Five Witnesses Have Been Examined By The Com­plainant. A Perusal Of The Depositions Shows That Each Of These Witnesses Has Been Cross-examined At Length And Except In The Case Of Witness No. 2 Where The Cross-examination Is Noted As If It Was By The Court, The Rest Of The Depositions Show That They Were Simply Cross-examined As In A Regular Trial. No Doubt, As Has Been Observed By The Supreme Court, The Magistrate Himself Is Free To Put Such Questions To Witnesses Produced Before Him By The Complainant As He May Thick Proper In The Interests Of Justice, But It Is Not Permis­sible For The Magistrate To Put Any Question At The Instance Of The Person Named As Accused Nor Can The Opposite Party Be Permitted To Cross-examine. In The Case Of At Least Four Of The Witnesses, The Record Shows That The Cross-examination Does Not Purport To Be In The Nature Of Answers Elicited To Questions Put By The Court. The Learned S. D. M., Who Passed The Order Under S. 203, Criminal P. C., While Dismissing The Complaint Has Himself Observed:
"It Clearly Appears That The Learned Magis­trate Allowed Some Questions To Be Put To The Witnesses On The Suggestions Made On Behalf Of The Persons Complained Against At The Time Of Enquiry Proceedings,"
This Itself Vitiates The Enquiry And Is A Suffi­cient Ground Which Justified The Learned Ad­ditional Sessions Judge To Set Aside The Order And Direct Further Enquiry.
5. Apart From It, In The Present Case, He Has Not Confined Himself To Consideration Of Material Which He Is Legally Entitled To Is Patent From The Following Observations In Para 12 Of His Order :
"Having Carefully Considered The Evidence Produced Before The Learned Enquiring Magis­trate In Course Of Enquiry Made Into The Com­plaint Under S. 202, Criminal P. C. And The Allegations Made In The Complaint Petition, The Initial Statement Of The Complainant On Solemn Affirmation, The Evidence Of The Witness Examined Under S. 540, Criminal P. C., In Course Of Further Enquiry Made By Me Into The Complaint, The Case Diary And The Records Of The Said G. R. Case No. 91/95 Relating To The Theft Committed In The Said House Of Jagabandhu Sahu At Manjuri Road Where The Deceased Was Allegedly Kept Confined, The Postmortem Report Of The Medical Officer, Bhadrak And The Facts And Circumstances Of The Case, I Am Quits Clear In My Mind To Conclude That There Is Absolutely No Evidence Against. The Accused Persons In Regard To Their Alleged Complicity With The Murder Of The Deceased." Thus, He Has Committed This Further Illegality By Relying On Extraneous Material. On Both These Grounds, The Order Of The Learned S.D.M., Dismissing The Complaint, Under S. 203, Crimi­nal P.C., Is Liable To Be Set Aside And The Learned Additional Sessions Judge Was Right In Setting Aside The Order And Directing Further Enquiry."
In Harekrushna Mohanty Versus Adikando Behera:1966 Cr.L.J. 64 , Has Been Held By Orissa High Court As Under:-
"4. To Appreciate The Contention, The Scope Of Sections 202 And 203, Cr PC May Be Examined. An Enquiry U/s 202 Is To Be Directed Only For The Purpose Of Ascertaining The Truth Or Falsehood Of The Complaint. Section 203 Lays Down That The Complaint May Be Dismissed After Consideration Of The Statements On Oath Of The Complainant And The Witnesses And The Result Of The Investigation Or Enquiry, If Any, Under Sec. 202, If The Magistrate In His Judgement Thinks That There Is No Sufficient Ground For Proceeding. The Scope Of The Section Is No Longer In Controversy. The Principles Laid Down In Chandra Deo Singh V. Prokash Chandra, AIR 1963 SC 1430 May Be Summarised For Convenience :
(i) Since The Very Question For Consideration Is Whether The Accused Should Be Called Upon To Face An Accusation, He Has No Right To Take Part In The Proceeding, Nor Has The Magistrate Any Jurisdiction To Permit Him To Do So. As A Necessary Corollary It Follows That The Magistrate Cannot Put Any Question To The Witnesses At The Instance Of The Accused.
(ii) The Magistrate Is, However, Free To Put Such Questions To The Witnesses Of The Complainant As He May Think Proper In The Interest Of Justice.
(iii) It Is The Bounden Duty Of The Magistrate To Elicit All Facts Not Merely With A View To Protect The Interest Of An Absent Accused But Also With A View To Bring To Book A Person Or Persons Against Whom Grave Allegations Are Made.
(iv) Whether The Complaint Is Frivolous Or Not Is, At That Stage, Necessarily To Be Determined On The Basis Of Materials Placed Before Him By The Complainant. Whatever Defence The Accused May Have Can Only Be Inquired Into At The Trial. If, However, From The Evidence Given By The Complainant A Reasonable Defence Is Established, Or The Accused Is Entitled To A Benefit Of Doubt, The Complaint Can Be Dismissed.
(v) The Magistrate Has To Be Satisfied Whether There Is Sufficient Ground For Proceeding And Not Whether There Is Sufficient Ground For Conviction. Whether The Evidence Is Adequate To Support A Conviction Can Be Determined Only At The Trial And Not At The Stage Of Enquiry.
(vi) The Object Of Enquiry U/s 202 Is To Ascertain Whether The Allegations Made In The Complaint Are Intrinsically True. In Order To Satisfy Himself That There Is Sufficient Ground For Proceeding U/s 203, The Magistrate Is Entitled To Consider The Evidence Recorded At The Inquiry U/s 202, The Statements Of The Complainant And His Witnesses On Oath And The Result Of The Investigation Or Inquiry, If Any. He Is Not Entitled To Rely Upon Any Materials Besides This.
Following The Aforesaid Principles In That Particular Case, Their Lordships Held That Where The Magistrate Had Ordered An Enquiry U/s 202 By Another Magistrate, It Was Not Open To Him To Consider The Statement Recorded During The Investigation By The Police, Or The Evidence Adduced Before Him During The Inquiry Arising Out Of Another Complaint On Such Extraneous Matter, The Proceeding Was Held To Be Vitiated. Similarly, Their Lordships Held The Inquiry By The Magistrate As Vitiated As Two Persons, Who Were Associates Of The Accused, Were Examined As Court Witnesses On The Suggestion Of The Accused, Who Was Permitted To Appear Through Counsel At The Enquiry."
From The Above Exposition Of Law By The Apex Court And Various High Courts, Now It Is Well Settled That Only Statements Of Complainant And Witnesses U/s 200 And 202 Of The Code And Result Of An Investigation Directed U/s 202 Only Can Be Considered By The Magistrate While Proceeding U/s 203/ 204 Of The Code. However, Ld. CJM , While Passing Impugned Order Transgressed Such Well De-marketed Area Of Power And Hence Committed Illegality By Usurping Power Not Vested In Him. It Pointed Out That In The Trial , Which Was Proceeding Against The Applicant/ Complainant And His Associates, Conclusions By The Police Were Based On Evidences Of Different Persons Than What Was Mentioned In The Complaint By The Applicant Complainant, Albeit Both Related With Murder Of Budha Singh, And Hence It Was Desirable That Both The Versions Be Tested On The Anvil Of Truthfulness. Ld. CJM Therefore, Fell In Gross Error In Passing The Impugned Order.
Judging From Another Angle, Impugned Order Is In Defensible As Some Of The Findings Recorded By CJM Are Totally Absurd And Understandable. He Has Dismissed The Complaint Because Of The Reason(i) That Complainant Had Not Specified On Which Roof He Was Sleeping And On Which Roof The Lantern Was Burning,(ii) When People Sleep At Night, They Reduce Flames Of Lantern,(iii) What Was Focus/ Glow Of Lantern Light To Identify Another Person On Next Roof,(iv) There Was Motive To Falsely Implicate,(v) There Are Contradictions In Statements Of Witnesses Etc. All These Criticism By The Ld. CJM, And Critical Appreciation Of It Are Wholly Absurd And Beyond Purview Of Inquiry U/s 203 Of The Code. More Over Without Affording Any Opportunity To The Witnesses, To Explain All These Circumstances , How Can A Finding Be Recorded Against Those Witnesses Is Not Understandable. How CJM Can Criticized And Dub Them As Unreliable And Untruthful Is Beyond Comprehension. This Is Flagrant Violation Of Principle Of Natural Justice That Nobody Can Be Condemned Unless Afforded Opportunity To Explain Makes Impugned Order More Vulnerable, Liable To Be Set Aside . Conclusion Arrived At By Ld.CJM, That There Was No Prima Facie Evidence To Try Respondents 2 To 5 Is Contrary To The Material Available On Record And Statements Of Witnesses. Medical Report Had Lend Credence To The Complainant Allegations And Fully Supported It. A Perusal Of Statements Of Witnesses Reveal That, If They Are Believed , There Will Be No Scope For The Accused To Be Absolved Of The Crime Committed By Them. Only A Prima Facie Case Was To Be Looked Into At That Stage Of 203/204 Of The Code, Which Was Unambiguously Present In The Inquiry Conducted By CJM. There Was No Reason For The Magistrate To Doubt On Oath Statements Of Witnesses, U/s 200 And 202 Of The Code, With Affording Them Any Opportunity To Explain. Entire Exercise By Ld. CJM, Seems To Be Wholly Illegal And Contrary To All Cannons Of Judicial Discipline. He Should Have Considered As To Which Of The Two Versions Leveled In Respect Of Death Of Budha Singh Is Correct Has To Be Determined In A Proper Trial. FIR Was Lodged For His Death By Applicant Complainant, Who Was His Son. Conclusions Arrived At By The Police Were Wholly Irrelevant To Judge The Veracity Of Complainant's Version, And To Scuttle The Complaint At It's Threshold. Ld. CJM Has Marshalled The Facts As If He Was Deciding The Trial Finally, Which He Was Not Empowered To Do Nor Was Required At The Stage Of Summoning. Not Only Ld. C.J.M. Transgressed The Scope Of Power Of Enquiry While Passing The Impugned Order But Has Prolixed It's Scope To Unacceptable Limits. Ld. CJ.M. Has Faltered On Every Aspect Of The Case And, It Seems, That He Was Not Oblivious On The Law Regarding Dismissal Of Complaint U/s 203 Of The Code. He Has Vetted And Appreciated The Statements Under Sections 200, 202 Of The Code And Has Criticized It For Non-worthy Reasons. His Entire Approach, Therefore Was Illegal. No Doubt, While Dismissing The Complaint, Under Section 203 Cr.P.C., Reasons Are Required To Be Mentioned, But This Does Not Mean That, At The Stage Of Summoning, A Full Fledged Roving Enquiry Is Done And Without Giving Opportunity To The Prosecution Witnesses, Their Statements Are Criticized And Complaint Be Dismissed. This Is Exactly What Has Been Done By The C.J.M. While Passing The Impugned Order. The View Of The Apex Court Cited Herein Above, Brings Home This Opinion Clearly, Categorically And Unambiguously. Submission By Counsel For The Accused 2 To 5 That C.J.M. Has Dismissed The Complaint Because It Was Incredible Is A Facetious Argument And, Therefore, Repelled Outright.
Without Further Deliberation, The Residue Is That The Impugned Order Of Dismissal Of Complaint Filed By The Applicant/ Complainant Umrao Singh Cannot Be Affirmed, As The Same Is Wholly Illegal, Unjust And Contrary To The Settle Position Of Law.
Before Parting With This Application, Finally, It Is Put On Record That I Have Heard Accused Counsel Also Not Because Accused Had A Right To Be Heard Prior To Their Summoning, Which They Certainly Don't Have, But Because Of The Reason That They Were Impleaded As Party, Though Wrongly, In This Application And Therefore It Was Desirable To Hear Them As Well.
Wrapping Up The Discussion, This 482 Cr.P.C. Application Is Allowed. Impugned Order Dated 12.1.2010 Passed By C.J.M., J.P. Nagar, In Complaint Case No. 4187 Of 2007, Umrao Versus Akil And Others, Is Hereby Set Aside. Case Is Remanded Back To C.J.M., J.P. Nagar, To Reconsider The Material On Record And Decide The Question Of Summoning And/or Dismissal Of Complaint, In Accordance With Law, Afresh.

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