IN THE HIGHT COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 1312 of 2005
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Ganpati Narayan Tiwari Petitioner
Verses
1. The State of Jharkhand
2. Ramesh Ojha Opposite parties
CORAM: THE HON'BLE MR. JUSTICE D.G.R. PATNAIK
For the Petitioner : M/s. Sujit Narayan Prasad, Advocate
For the State : Mr. Ranjan Mukhopadhyaya, A.P.P.
CAV ORDER
Reserved on:28.06.2010 Pronounced on: __09.07.2010
8/09.07.2010
The petitioner in this application under the provisions of Section 482
Cr.P.C., has prayed for quashing the order dated 11.02.2004 whereby the
complaint petition filed by him was dismissed by the court below on the
basis of some documents which the accused persons were allowed to file
even at the stage of enquiry under Section 202 Cr.P.C.
The petitioner has also challenged the order dated 11.02.2004 passed
by the 8th Additional District and Sessions Judge, Palamau in Criminal
Revision application filed by the petitioner against the impugned order of
the Judicial Magistrate whereby criminal revision application was dismissed.
2. Learned counsel for the petitioner has assailed the impugned order of
the Magistrate as also that the Sessions Judge on the ground that the
Magistrate has committed a serious error of procedural law by allowing the
accused persons to appear and file documents at the stage of enquiry even
without issuance of any summon against them and by relying upon such
documents.
Referring to the provisions of Section 202 Cr.P.C., learned counsel
argues that during the enquiry proceeding under Section 202 Cr.P.c., the
accused persons have no locus standi either to appear or to file any
documents nor does the scope of enquiry under the said provision allow the
enquiring Magistrate to refer to any such documents filed by the accused
persons. Learned counsel argues that the Magistrate, while conducting the
enquiry, has to consider the averments as contained in the complaint
petitioner and the statements of the complainant and his witnesses recorded
on solemn affirmation and then to assess on the basis of such materials as to
whether any prima facie case has been made out against the accused.
Reading out the impugned order of the learned Magistrate, learned
counsel for the petitioner submits that even as admitted in the impugned
order, the enquiring Magistrate had allowed himself to peruse the
documents filed by the accused persons on the basis of which the Magistrate
had drawn an erroneous inference that the dispute between the parties
relates to some official transactions between the complainant and the
accused and the complaint has been filed ” to take revenge from the opposite
party/accused”.
Learned counsel argues further that even otherwise, without affording
a reasonable opportunity to rebut and explain the documents filed by the
accused, the learned Magistrate could not have proceeded to refer to the
same and on the basis of the contents of the said documents, to draw any
adverse inference against the complainant. Such opportunity, according to
the learned counsel, could be given only after commencement of the trial
when the accused would have the opportunity to confront the complainant
and the witnesses with the said documents and elicit their explanation on
the same.
To buttress his arguments, learned counsel would refer to and rely
upon the judgement of a Bench of this Court in the case of Birendra Singh
Vs. State of Jharkhand, 2004(1) JLJR221.
3. Learned counsel for the State, on the other hand, would argue that in
course of enquiry conducted by the Magistrate under the provisions of
Section 202 Cr.P.C., the accused may not have any locus standi to submit any
argument but the provisions do not prohibit the accused persons to
participate in the enquiry proceeding.
4. The grounds on which the impugned order of the learned Magistrate
has been assailed raises a basic question as to whether an accused can set up
his defence and produce some documents during enquiry before the
Magistrate and whether such documents can be considered by the
Magistrate along with other documents produced by the complainant and
whether on the basis of such documents produced by the accused can the
Magistrate record any observation that the complaint was filed with
malicious motives or that the allegations in the complaint are false ?
5. The facts of the case in brief is as follows :
The petitioner being the complainant, had filed a complaint petition
before the court of Chief Judicial Magistrate. The case of the complainant is
that he being an employee of the Bihar Caustic & Chemicals Ltd., an
industrial dispute with the Management was pending before the Industrial
Dispute Tribunal, Ranchi. In spite of the order of stay passed by the Tribunal
restraining the Management from forcibly evicting the complainant from the
quarter allotted to him, the accused/petitioner along with two unknown
persons accosted him on the alleged date of occurrence and after abusing
him and manhandling him, snatched away Rs. 700/ and his Identity Card as
well as some of the papers, from his shirt pocket and had also issued threats
of dire consequences directing the complainant to vacate the quarter.
Upon receiving the complaint, the Chief Judicial Magistrate
transferred the case for enquiry and trial to the court of the Judicial
Magistrate. The matter eventually came to be transferred to the court of Shri
Y.K.Singh, Judicial Magistrate, 1st Class, Daltanganj for enquiry under
Section 202 Cr.P.C. The statement of the complainant as his witnesses was
recorded on solemn affirmation in the enquiry conducted by the Magistrate.
At this stage, the accused petitioner appeared through his lawyer and
filed certain documents in the proceeding.
6. From the impugned order passed by the learned Magistrate whereby
the complaint petition was dismissed under Section 202 Cr.P.C., it appears
that the learned Magistrate, upon considering the statements of the
complainant and his witnesses and also upon considering the documents
filed by the accused on 22.12.2002, has observed as follows : there is
dispute between both the parties. Complainant was subordinate to the Opposite
Party No. 2/accused Ramesh Ojha and he was suspended and was also directed
to vacate the quarter”. On such observations, the inference drawn by the
Magistrate was that “the case was filed to take revenge from Opposite Party.
There is official dispute also so keeping in view of above facts and due to being
contradictory statement of the enquiry witnesses, this case is dismissed.”
7. The above facts do certainly indicate that on the date when the
documents were filed by the accused/petitioner, the proceeding was still at
the enquiry stage and the accused was not summoned to face trial.
8. Section 202 of the Code of Criminal Procedure lays down the
procedure for conducting the enquiry into a complaint on postponing the
issue of process against the accused. The provisions of Sub Section (1) of
Section 202 Cr.P.C. reads as follows :
202. Postponement of issue of process – (1) Any Magistrate,
on receipt of a complaint of an offence of which he is
authorised to take cognizance or which has been made over to
him under Section 192, may, if he thinks fit, postpone the issue
of process against the accused, and either inquire into the case
himself or direct an investigation to be made by a police officer
or by such other person as he thinks fit, for the purpose of
deciding whether or not there is sufficient ground for
proceeding.
On a bare reading of the above provisions, it would be manifest that
the scope of enquiry under Section 202 Cr.P.C. is for the limited purpose of
finding out as to whether a prima facie case is made out on the basis of the
materials placed by the complainant without at all adverting to any defence,
the accused may have and the accused is not entitled to be heard. The
section comes into play when the Magistrate, after examining the
complainant and his witnesses present, if any, has reasons for distrust and
thinks that he would not be justified in issuing process without taking some
further steps to ascertain whether the allegations are prima facie true or not.
The provisions are intended to enable the enquiring Magistrate to form an
opinion as to whether the process should be issued or not. At this stage, the
Magistrate has to see as to whether there is evidence in support of the
allegations and not whether the evidence is sufficient to warrant a
conviction. The entire scheme of the provision is that an accused person
does not come into picture at all till the process is issued.
9. It would thus appear that at this stage, the accused has got no locus
standi to appear and file his objections to the enquiry. Nevertheless, the
provisions of Section 202 Cr.P.C. do not prohibit the accused from being
present in the proceeding either in person or through counsel with a view to
be informed about the proceeding though he may not have any right to take
part in it nor has the Magistrate any jurisdiction to prompt him to do so. If
the accused appears on his own accord and he or his lawyer offers to help
the Magistrate, there may be no illegality, but to allow him to adduce
evidence or to cross examine witnesses would be illegal. The accused could
be admitted to watch proceedings and his lawyer to act as amicus curiae.
Such limited allowance to the accused cannot be termed as illegal in view of
the object and purpose of the enquiry conducted by the Magistrate being
mainly to decide whether or not there is sufficient ground for proceeding
against the accused. The Magistrate has the right to be informed of all the
relevant facts related to the complaint which may have a bearing on the
nature and allegations in the complaint.
This view finds support from the judgement of the Supreme Court in
the case of Chandradeo, A 1963 Supreme Court 1430. While observing that
during the enquiry, the presence of the accused is not barred but what is
barred is his participation, the Supreme Court has drawn a difference
between “watching” and “participating” and has explained that while
“watching” means to know what actually is done and in that course, if he
could point out on the matter of jurisdiction of the enquiry for the offence or
to point out certain other circumstance viz. the police investigation pending
for the same offence on account of which the Magistrate may not have
jurisdiction to proceed with the complaint under Section 210 Cr.P.C.
10. To reiterate, the emphasis as laid down under the provisions of
Section 202(1) Cr.P.C. defining the scope of enquiry, is for the purpose of
deciding whether or not there is sufficient ground for proceeding against the
accused. It would therefore be within the scope and ambit of the enquiring
Magistrate to have access to any information which may have a direct
bearing upon the allegations in the complaint petition and the statements of
the complainant and the witnesses, for the purpose of satisfying himself as to
whether or not there is sufficient ground for proceeding against the accused.
11. The argument of the learned counsel for the petitioner that it was not
within the privilege of the accused to file any document in course of the
enquiry proceeding and was absolutely beyond the powers of the Magistrate
to refer to such documents filed by the accused at the stage of enquiry, is
therefore not acceptable. However, the objection to the reference to the
documents by the Magistrate and placing reliance on the same before
passing the final order in the enquiry proceeding, on the ground that before
acceptance of such documents and relying upon the same, the complainant
and his witnesses ought to have been given an opportunity to explain the
same, has force.
12. In the present case, apparently, the documents have been filed by the
accused by setting up his defence against the allegations made by the
complainant. Even if the enquiring Magistrate would peruse such documents
to assess as to whether it has any bearing upon the nature of complaint and
upon the allegations made by the complainant, yet, before relying upon the
same, it was the duty of the Magistrate to confront the complainant and his
witnesses with the documents in course of the enquiry while recording their
statements on solemn affirmation in order to elicit explanations from the
complainant and his witnesses regarding the genuineness of the contents of
the documents. Without affording such opportunity to the complainant, the
acceptance of the defence set up by the accused, would certainly be beyond
the scope of the authority of the enquiring Magistrate.
13. In the present case, it appears from the facts pleaded and from the
documents on record, that the documents on behalf of the accused was filed
after the statements of the complainant and his witnesses were already
recorded and therefore the documents were not available so that the
complainant and his witnesses could be confronted with the same and an
opportunity be given to the complainant to explain the documents. As
appearing from the impugned order of the enquiring Magistrate, the reliance
placed by him on the documents to draw adverse inference against the
complainant without enabling the complainant to explain the contents of the
documents, is certainly illegal. In this view of the matter, the impugned
order of the Magistrate cannot be legally sustained and is therefore hereby
quashed.
From the perusal of the impugned order of the Revisional Court, I
find that the Revisional Court has not taken into consideration the above
aspect of the matter which would amply indicate that the enquiring
Magistrate has travelled beyond his jurisdiction by relying upon the
documents filed by the accused at the stage of enquiry. The impugned order
of the Revisional Court is therefore hereby quashed.
14. The matter is remanded back to the enquiring Magistrate to conduct
the enquiry afresh and to pass a reasoned and speaking order on the basis of
materials collected in course of enquiry.
(D.G.R. Patnaik, J)
Birendra/A.F.R.