Cr.Misc. 54913 M of 2007 - 1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Cr.Misc. 54913-M of 2007
DATE OF DECISION: July 14 ,2008
Gurlal Singh Grewal
......PETITIONER
VERSUS
State of Punjab and others.
......RESPONDENTS
PRESENT: Mr. R.S.Rai,Sr. Advocate with
Mr.Gauttam Dutt, Advocate for petitioner.
Mr. KD Sachdeva, DAG, Punjab.
Mr.Vikram Chaudhary, Advocate
M.M.S.BEDI,J.
The extent of powers and scope of authority under Section 202
Cr.P.C. of a Magistrate after recording preliminary evidence but before
issuing process to the accused directing the police to investigate and
submit a report, is required to be determined in the present case.
The petitioner has invoked the inherent jurisdiction of this
Court under Section 482 Cr.P.C. challenging the order dated 20.11.2007
(Annexure P-7) passed by the learned Additional Chief Judicial Magistrate,
Ludhiana, which reads as follows:-
” Consideration is heard today. This Court is of the
opinion that before arriving on any conclusion, that
whether the accused are to be summoned or not to be
Cr.Misc. 54913 M of 2007 – 2-
summoned, in the present case, the inquiry is required
to be conducted, as such, the present complaint in
original is forwarded to SHO,P.S. Divn.No.5 Ludhiana,
for conducting inquiry in the present complaint, on the
facts complainant alleges. The Ahlmad will retain the
photostat copy of the file and will keep the original
statement with him and send the photostat to the police
of P.S. Divn.No.5, Ludhiana. SHO shall summon the
complainant and his witnesses and record their
statements and then conduct an inquiry and give his
report on or before 19.2.2008.”
Pursuant to the above said order, SHO, S.I. Jarnail Singh, P.S
Division No.5, Ludhiana, as per the reply filed on behalf of the State, called
both the parties on 24.12.2007 for inquiry but since this Court had vide
order dated 21.12.2007stayed the operation of the order, he had sent the
complaint back to the Magistrate, as is apparent from Annexure R-2/T.
Learned counsel for the petitioner Shri R.S.Rai, Senior
Advocate had contended that the Magistrate after having taken cognizance
of the offence by recording the evidence of the complainant and his
witnesses, CW 1 to CW4, ought to have, on the basis of the appreciation of
the preliminary evidence, issued summons to the respondents as the
petitioner had been able to prima facie establish the offence alleged
against respondents 2 to 4. The impugned order, referring the matter to the
concerned SHO for conducting an inquiry tantamounts to an abuse of the
process of the Court, which would result in manifest injustice to the
petitioner as the inquiry , which was initiated by the police was contrary to
all cannons of criminal justice as the accused party, which does not have
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any locus standi stood summoned prejudicing the rights of the complainant.
The order of the trial Court is without jurisdiction and is thus liable to be set
aside.
On the other hand, appearance was put in by respondents 2 to
4 and a serious objection was raised by filing a reply contending that the
petitioner has indulged in a blatant misrepresentation of facts and on the
misconstruction of the provisions of Section 202 Cr.P.C. Referring to the
provisions of Sections 200 to 202 Cr.P.C., it was argued that the
Magistrate has acted perfectly in consonance with the provisions of Section
202(1)(b) Cr.P.C. as the Magistrate, after examining the complainant and
his witnesses had found that it was necessary to further probe into the
matter, therefore, a direction of investigation by police was an appropriate
step in the interest of justice.
Although this petition does not involve the determination of
question whether the private respondents are required to be summoned on
the basis of the averments in the complaint and preliminary evidence
produced but since the Magistrate vide impugned order dated20.11.2007
(Annexure P-7) has expressed an opinion that an inquiry is required to be
conducted for forming an opinion before arriving at a conclusion whether
accused are to be summoned or not to be summoned on the facts, as
alleged by the complainant, a brief cercory reference will have to be made
to the allegations in complaint for proper appreciation of the impugned
order, as reasons for subjective or objective satisfaction are not mentioned
in the impugned order. Even the scope and extent of inquiry , which is to be
conducted by the police is also not mentioned. A copy of the complaint,
filed by the petitioner before the trial Court, has been produced on the
record as Annexure P-5. In the said complaint under Sections 406/418/34
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IPC, the complainant- petitioner has alleged that his father Joginder Singh
Grewal had constituted in 1973 Gurdev Dharamarath trust and he is the
member of the Governing Body of Gurdev Hospital run by the trust as well
as by the trustee of Sardar Joginder Singh Charitable Trust, which is a
major donor of the abovesaid Trust, namely, Sri Gurdev Dharamarath
Trust. The accused persons had stopped calling the complainant-
petitioner in the meeting of the said Trust and dishonestly and with
malafide intention in connivance with each other have taken over the
management/ administration of the said Trust. The accused persons have
also taken a lot of investments in the form of donations as well as other
reliefs from the Government in the daily administration of the Trust
including the hospital, which was built and being run by the Turst on the
land, which is jointly owned by the Sri Gurdev Dharamarath Trust with
other three Tursts,namely, Gurparsad Trust, Mata Gurmail Kaur Charitable
Trust and Gurkartar Dharamarth Trust. All the above said Trusts have
undivided property/ land measuring 8 ½ acres in village Sunet District and
Tehsil Ludhiana. The complainant has also alleged that all the trustees in
connivance with each other in order to achieve wrongful benefits and
personal gains have sold some land measuring 2175 sq. yds vide sale
deed executed on 22.3.2006 at a price of Rs.5000/- per square yard,
whereas the actual market value is more than Rs.50,000/- per square yard.
On the basis of the said allegations, the complainant- petitioner had filed a
complaint u/s 406/418/34 IPC. After examining four witnesses i.e. CW1
Gurlal Singh, CW 2 Parmod Gupta, Ahlmad of Civil Judge (Jr.Division),
CW3 Rajan Sharma Clerk, Sub Registrar Office, Ludhiana and CW4
Krishan Anand Estimater/ Valuer, District Court, Ludhiana, the complainant
closed the evidence on 2.10.2007. The complaint was adjourned to
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20.11.2007 for consideration vide order dated 19.11.2007. On 20.11.2007,
the trial Court passed the impugned order, which has been reproduced
herein above.
A perusal of the order dated 20.11.2007 (Annexure P-7)
indicates that the evidence produced by the petitioner was considered by
the Learned Judicial Magistrate but he formed an opinion that before
arriving at any conclusion whether the accused are to be summoned or not
to be summoned, an inquiry is required to be conducted, as such the
complaint in original was forwarded to SHO, P.S. Division No.5, Ludhiana
for conducting an inquiry in the complaint on the facts, alleged by the
complainant in the complaint. The Ahlmad was directed to retain the
photostat copy of the file and keep the original statements of the witnesses
with him and send only the photostat copies of the said statements to the
Police. The SHO was required to summon the complainant and his
witnesses; record their statements; conduct an inquiry and give his report
on or before 29.2.2008.
So far as the authority of the Magistrate, after summoning the
complainant and his witnesses and sending the matter requiring further
probe by the police, is concerned, it would be relevant to refer to the
enabling provisions of Cr.P.C. regarding the taking of cognizance by a
Magistrate on a private complaint. Chapter XV of Cr.P.C. dealing with the
complaint to the Magistrate reads as follows:-
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
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the witnesses, and also by the Magistrate:
Provided that, when the complaint 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 complainant and the witnesses,
the latter Magistrate need not re-examine them.
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 complaint is in writing, return it for
presentation to the proper court with an
endorsement to that effect;
(b) If the complaint is not in writing, direct the
complainant to the proper court.
202. Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an
offence 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
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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 Sessions 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 fit, take evidence of
witness 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 Court on an officer in charge of a police station
except the power to arrest without warrant.
203. Dismissal of complaint.
If, after considering the statements on oath (if any)
of the complainant and of the witnesses and the
result of the inquiry or investigation (if any) under
section 202, the Magistrate is of opinion that there
is no sufficient ground for proceeding, he shall
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dismiss the complaint, and in every such case he
shall briefly record his reasons for so doing.
The provisions regarding issue of process are contained in a
separate chapter i.e. Chapter XVI regarding commencement of
proceedings before a Magistrate.
The abovesaid provisions came up for consideration before
the Supreme Court in Devarapalli Lakshminarayana Reddy vs V.
Narayana Reddy AIR 1976 SC 1672. In the said judgment the question
to be determined by the Supreme Court was whether in view of Clause (a)
of the first provisio of Section 202(1) Cr.P.C. a Magistrate, who receives a
complaint discloses an offence exclusively triable by the Court of Sessions,
was debarred from sending the same to the police for investigation u/s 156
(3) Cr.P.C. The Criminal Procedure Code had been amended in the year
1974. The Hon’ble Supreme Court had considered the provisions of
Section 202 Cr.P.C. and held that the power to order the police
investigation u/s 156(3) Cr.P.C. is different from the power to direct
investigation conferred by 202(1) Cr.P.C. The relevant observations are
reproduced as follows:
” The power to order police investigation under Section
156(3) is different from the power to direct investigation
conferred by Section 202 (1) The two operate in distinct
spheres at different stages. The first is exercisable at the
pre-cognizance stage, the second at the post-
cognizance stage when the Magistrate is in seisin of the
cases. That is to say in the case of a complaint
regarding the commission of a cognizable offence, the
power under Section 156(3) can be invoked by the
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Magistrate before he takes cognizance of the offence
under Section 190(1) (a). But if he once takes such
cognizance and embarks upon the procedure embodied
in Chapter XV, he is not competent to switch back t the
pre-cognizance stage and avail of Sect. 156 (3). It may
be noted further that an order made under sub-section
(3) of Section 156, is in the nature of a peremptory
reminder or intimation to the police to exercise their
plenary powers of investigation under Section 156(1).
Such an investigation embraces the entire continuous
process which begins with the collection of evidence
under Section 156 and ends with a report or charge
sheet under Section 173. On the other hand, Section
202 comes in at a stage when some evidence has been
collected by the Magistrate in proceedings under
Chapter XV, but the same is deemed insufficient to take
a decision as to the next step in the prescribed
procedure. In such a situation, the Magistrate is
empowered under Section 202 to direct, within the limits
circumscribed by that section, an investigation ” for the
purpose of deciding whether or not there is sufficient
ground for proceeding.” Thus the object of an
investigation under Section 202 is not to initiate a fresh
case on police report but to assist the Magistrate in
completing proceedings already instituted upon a
complaint before him.”
From a perusal of the above observations of Hon’ble the Apex
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Court, it is clear that the provisions of Section 202 Cr.P.C. regarding
postponement of issue of process against the accused under Chapter XV
can be adopted when the evidence collected is deemed insufficient to
take a decision as to the next step in the prescribed procedure. The
investigation, which can be entrusted to the police would be solely for the
purpose of deciding whether or not there is sufficient ground for proceeding
against the accused.
The observations of the Hon’ble Mr. Justice M.B.Shah in Rosy
and another vs State of Kerala and others (2000) 2 SCC 230, regarding
the scope of Section 202 Cr.P.C. are as follows:-
” Under Section 200 read with Section 202 CrPC, it is
only at the discretion of the Magistrate to decide whether
to hold an inquiry or not before issue of process to the
accused. In view of the provisions of Sections 200,203
and 204, the question of complying with the proviso to
Section 202(2) would arise only in cases where the
Magistrate before taking cognizance of the case decides
to hold the inquiry and further decides to take evidence
of witnesses on oath. But the object and purpose of
holding inquiry or investigation under Section 202 is to
find out whether there is sufficient ground for proceeding
against the accused or not and that holding of inquiry or
investigation is not an in dispensable course before the
issue of process against the accused or dismissal of the
complaint. It is an enabling provision to form an opinion
as to whether or not process should be issued and to
remove from the Magistrate’s mind any hesitation that he
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may have felt upon the mere perusal of the complaint
and the consideration of the complainant’s evidence on
oath.”
In the said judgment, the Hon’ble Judge relying upon
judgments in Chandra Deo Singh v. Parkash Chandra Bose, AIR 1963
SC 1430: (1963) 2 Cri LJ 397: (1964) 1 SCR 639; Vadilal Panchal vs.
Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113: 1960 Cri LJ 1499:
(1961) 1 SCR: Pramatha Nath Talukdar vs Saroj Ranjan Sarkar, AIR
1962 SC 876: (1962) 1 Cri LJ 770: 1962 Supp (2) SCR 297; Nirmaljit
Singh Hoon vs State of W.B., (1973) 3 SCC 753: 1973 SCC (Cri) 521;
Mohinder Singh v. Gulwant Singh, (1992) 2 SCC 213: 1992 SCC (Cri)
361; Kewal Krishan vs. Suraj Bhan, 1980 Supp. SCC 499: 1981 SCC
(Cri)438, held as follows:-
“Further, the inquiry under Section 202 is of a limited
nature. Firstly, to find out whether there is a prima facie
case for issuing process against the person accused of
the offence in the complaint and secondly, to prevent
the issue of process in the complaint which is either
false or vexatious or intended only to harass such a
person. At that stage, the evidence is not to be
meticulously appreciated, as the limited purpose is to
find out “whether or not there is sufficient ground for
proceeding against the accused”. The standard to be
adopted by the Magistrate in scrutinising the evidence is
also not the same as the one which is to be kept in view
at the stage of framing charges. At the stage of inquiry
under Section 202 CrPC the accused has no right to
intervene and it is the duty of the Magistrate while
making an inquiry to elicit all facts not merely with a view
to protect the interests of an absent accused person, but
also with a view to bring to book a person or persons
against whom grave allegations are made.”
In Tula Ram and others v. Kishore Singh Air 1977 Supreme
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Court 2401, considering the power of a Magistrate to take cognizance
under Sections 190,200 to 204 in context to the provisions of Section 156
(3) Cr.P.C and Section 202 Cr.P.C. to order investigation, the Hon’ble
Supreme Court on interpretation of the provisions laid down the following
legal proposition:-
“1. That a Magistrate can order investigation under
S.156(3) only at the pre-cognizance stage, that is to say,
before taking cognizance under Sections 190.200 to 204
and where a Magistrate decides to take cognizance
under the provisions of Chapter 14 he is not entitled in
law to order any investigation under Section 156(3)
though in cases not falling within the proviso to Section
202 he can order an investigation by the police which
would be in the nature of an enquiry as contemplated by
Sec.202 of the Code.
2. Where a Magistrate chooses to take cognizance he
can adopt any of the following alternatives;
(a) He can peruse the complaint and if satisfied that
there are sufficient grounds for proceeding he can
straightaway issue process to the accused but before he
does so he must comply with the requirements of
Section 200 and record the evidence of the complainant
or his witnesses.
(b) The Magistrate can postpone the issue of process
and direct an enquiry by himself.
( c ) The Magistrate can postpone the issue of process
and direct an enquiry by any other person or an
investigation by the police.
3. In case the Magistrate after considering the statement
of the complainant and the witnesses or as a result of
the investigation and the enquiry ordered is not satisfied
that there are sufficient grounds for proceeding he can
dismiss the complaint.
4. Where a Magistrate orders investigation by the police
before taking cognizance under S/ 156(3) of the Code
receives the report thereupon he can act on the report
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and discharge the accused or straightaway issue
process against the accused or apply his mind to the
complaint filed before him and take action under Section
190 as described above.”
In Bhagat Ram vs Surinder Kumar and others (2004) 11
Supreme Court Cases 622, the Chief Judicial Magistrate after examining
the complainant and his witnesses directed the investigation to be done by
the police as he felt that the matter needed further probe. After receipt of
the police report, matter was heard afresh. Thereafter, process was issued
against the respondents therein. The order of the Magistrate was
challenged on the ground that having once taken cognizance and
proceeded to hold the inquiry under Section 202 Cr.P.C., the Magistrate
could not have referred the matter for inquiry/ investigation by the police at
all and he should have proceeded in the matter himself. The Hon’ble
Supreme Court held that the procedure adopted by the Magistrate was
perfectly in order in view of the provisions of Section 202(1) proviso (b)
Cr.P.C. The relevant portion is reproduced as under:-
” It is clear from a perusal of the order made by the
learned Magistrate that he has not done anything other
than to comply with the provisions of Section 202(1)
proviso (b) of the Code of Criminal Procedure, that after
examining the complainant and his witnesses he found
that it was necessary to further probe into the matter
and, therefore, directed investigation to be done by the
police and after the investigation was done by the police
and on report being filed by them, he heard the matter
afresh and directed issue of summons. We find that the
procedure adopted by the learned Magistrate is perfectly
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in order.”
A similar view has been taken by this Court in Sukhwinder
Kaur vs Kulwinder Singh and others 2004(1) PLR 93, wherein the
power of the Magistrate to postpone the issuance of process against the
accused and direct the investigation to be made by the police officer with
an object to reach a conclusion that there exists sufficient ground for
issuance of a process. Following the ratio of the judgment in Devarapalli
Lakshminarayana Reddy vs V. Narayana Reddy AIR 1976 SC 1672, it
was held that such an order of the Magistrate will not suffer from the lack of
jurisdiction on the ground that the Magistrate had already taken
cognizance by recording preliminary evidence prior to the issuance of the
process. In this context, the judgment of the Hon’ble Supreme Court in
Jamuna Singh vs. Bhadai Shah, AIR 1964 SC 1541, needs to be
referred to, where the order passed by a Magistrate after recording
preliminary evidence of the complainant u/s 200 Cr.P.C. was considered in
context to the power to order investigation u/s 156(3) Cr.P.C. and Section
202 Cr.P.C. and it was observed as follows:-
” As a last resort the learned counsel for the appellants
argued that the Magistrate had acted without jurisdiction
in asking the police to institute a case and so the
proceedings subsequent to that order were all void. As
we have already pointed out, the order of the Magistrate
asking the police to institute a case and to send a report
should properly and reasonably be read as one made
under S.202 of the Code of Criminal Procedure. So, the
argument that the learned Magistrate acted without
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jurisdiction cannot be accepted. At most it might be said
that in so far as the learned Magistrate asked the police
to institute a case he acted irregularly. There is
absolutely no reason, however, to think that that
irregularity has resulted in any failure of justice. The
order of conviction and sentence passed by the High
Court cannot be reversed or altered on account of that
irregularity.”
On the basis of the abovesaid judgments, the impugned order
cannot be set aside on the ground that a Magistrate did not have any
jurisdiction to order investigation after having recorded the preliminary
evidence. It is, thus, held that the impugned order is not without jurisdiction
but whether the discretion has been exercised in a manner, which has
resulted in the miscarriage of justice and an abuse of the process of the
law, is the next question, which is required to be determined. In this context
it will be pertinent to again refer to the provisions of Section 202 Cr.P.C., as
held in Rosy and another vs State of Kerala and others (supra). The
provisions of Section 202 Cr.P.C. would be attracted in cases where the
Magistrate before taking cognizance of the case decides to hold the
inquiry and further decide to record evidence of the witnesses on oath but
the object and purpose of holding inquiry or investigation u/s 202 Cr.P.C. is
to find out whether there is sufficient ground for proceeding against an
accused or not and that holding of an inquiry or investigation is not an
indispensable course before the issue of the process against the accused
or dismissal of the complaint. The provision of Section 202 Cr.P.C. is an
enabling provision to help Magistrate to form an opinion as to whether a
process is to be issued or not. One of the objects of Section 202 Cr.P.C. is
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to remove from the Magistrate’s mind any hesitation or doubt that he may
have felt upon reading of the complaint and on the consideration of the
complainant’s evidence produced at the preliminary stage. The Legislature
in its wisdom has specifically used the words ” if he thinks fit” in Section
202 (1) Cr.P.C. As per the bare language of Section 202 Cr.P.C. a
Magistrate is empowered to direct an investigation to be made by the
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 after the
complainant and his witnesses have been examined on oath u/s 202
So far as the amended Section 202 Cr.P.C. w.e.f. 23.6.2006 is
concerned, it is mandatory upon the Magistrate to hold an inquiry u/s 202
Cr.P.C.(as amended) especially to find out whether or not there are
sufficient grounds for proceeding against the accused, depending upon the
facts of the each case, if the accused is residing at a place beyond the
area, in which the Magistrate exercises jurisdiction but the amendment has
not brought about any change regarding the nature of the inquiry, which is
required to be held u/s 202 (1) Cr.P.C. Holding of an inquiry before issuing
of a process had been a discretion of a Magistrate and it continues to be
so unless the accused person is the resident beyond the territorial
jurisdiction exercised by the Magistrate. The Magistrate is not required
necessarily to issue process against an accused on the basis of the
preliminary evidence produced before him as a matter of course. He is
entitled to hold an inquiry, if after going through the statements of the
complainant and the witnesses he is not satisfied that a case for
summoning is made out. In case the Magistrate wishes further inquiry into
the matter, he is required to follow the the procedure indicated in Section
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202 Cr.P.C. In case the statements of the complainant and the
witnesses, which are before him u/s 200 Cr.P.C. are not considered
enough in respect to a particular controversy or doubt in the mind of the
Magistrate, it is always optional for the Magistrate to defer the issuance of
a process against an accused as per the law laid down by the Supreme in
Bhagat Ram, Sukhwinder Kaur, Deverapalli and Jamuna Singh’s
cases (supra). The sole objective of an inquiry to postpone the issuance
of a process is for the purpose of deciding whether or not there is sufficient
ground for proceeding and not to initiate a fresh case on police report but
to seek assistance in completing proceedings already initiated upon the
complaint but the scope of inquiry u/s 202 Cr.P.C. is extremely limited. The
said scope came up before Hon’ble the Supreme Court in Smt.Nagawwa
vs Veeranna Shivalingappa Kongalgi and others AIR 1976 Suprme
Court 1947, wherein it was observed as follows:-
” The scope of the inquiry under Section 202 is
extremely limited – only to the ascertainment of the truth
or falsehood of the allegations made in the complaint –
(i) on the materials placed by the complainant before
the court ; (ii) for the limited purpose of finding out
whether a prima facie case for issue of process has
been made out ; and (iii) for deciding the question purely
from the point of view of the complainant without at all
adverting to any defence that the accused may have. In
fact, in proceedings under Section 202 the accused has
got absolutely no locus standi and is ot entitled to be
heard on the question whether the process should be
issued against him or not.”
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In the present case, after the Magistrate had passed the
impugned order dated 2011.2007 (Annexure P-7), keeping the scope of
inquiry vague, the SHO, S.I.Jarnail Singh, P.S.Division No.5 had called
both the parties on 29.12.2007 for inquiry, which clearly reflects that the
scope of inquiry u/s 202 Cr.P.C. has been unncessarily extended, which
could cause prejudice to the petitioner and create a confusion in the mind
of the Magistrate to form an opinion regarding issuance of process on the
basis of the preliminary evidence produced before him. The scope of
inquiry u/s 202 Cr.P.C. cannot be extended beyond the limits laid down in
Smt. Nagawwa’s case (supra) followed by the Supreme Court in
Mohinder Singh vs Gulwant Singh and others, 1992 AIR (SC) 1894.
The inquiry is made for deciding the question purely from the point of view
of the complainant without at all adverting to any defence that the accused
may have in proceedings u/s 202 Cr.P.C. the accused has got absolutely
no locus standi and he is not entitled to participate in the inquiry whether
the process should be issued or not.
It is,thus, held on the basis of judgments of the Supreme
Court, mentioned hereinbefore that the Magistrate certainly has a
jurisdiction to order inquiry u/s 202 (1)Cr.P.C. but the said discretion has to
be exercised in consonance with the sound judicial principles. In Ranjit
Puri and others vs Uggar Sain 1974 Crl.L.J. 1229, an order passed by
the Magistrate, not recording reasons for postponing the issue of process
and directing the police investigation was set aside by the our High Court.
The order directing the police to investigate the matter, after preliminary
investigation and the order of issuing process without proper application of
judicial mind, was held to be bad. .
It has been observed in Rosy's case (supra) that the
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provision of Section 202(2) Cr.P.C. is enabling provision for the Magistrate
to form an opinion as to whether or not process should be issued and
remove from the Magistrate’s 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 statutory discretion vested with the judicial Magistrate, in
the present case, after the entire preliminary evidence had been produced
by the petitioner and it was open to the Judicial Magistrate to consider the
preliminary evidence and to find out in accordance with the settled principle
of law whether any prima facie offence appeared to have been committed
by the respondents and to summon them. The various principles to weigh
the evidence need not be emphasised as it is settled principle of law laid
down by the Hon’ble Supreme Court in various judgments including Kewal
Krishan vs Suraj Bhan and another AIR 1980 SC 1780, to the effect that
the standard to be adopted by the judicial Magistrate in scrutinizing the
evidence is not the same as at the stage of framing charges. At the stage
of Section 204 Cr.P.C., if there is prima facie evidence in support of the
allegations in the complaint, that would be sufficient ground for issuing
process to the accused. Standard of the said evidence so collected to
sufficient grounds for proceeding further is lower than the one to be
adopted at the stage of framing charges. It is always open to the Magistrate
to weigh the probability and prima facie truthfulness of the evidence
produced at the preliminary stage and to form an opinion that no ground
exists for proceeding against the accused by passing a speaking order.
Wide discretionary power has been conferred u/s 202(1) Cr.P.C. to
postpone the issue of process and to either hold an inquiry himself or to
direct an investigation to be made by the police officer as he thinks fit, for
Cr.Misc. 54913 M of 2007 – 20-
the purpose of deciding whether or not there is sufficient ground for
proceeding. When a statute gives wide discretionary power to an authority
or Court to adopt any one of the procedures prescribed under law, it
becomes mandatory for the said authority for recording reasons for
exercising the power even if the statute does not expressly enjoin upon the
said authority to do so. It goes without saying that the reasonableness of
the exercise of discretion can be decided keeping in view the object, which
the statute seeks to achieve while granting discretion. The impugned order
dated 20.11.2007 (Annexure P-7) shows that the Magistrate has not
passed a speaking order giving reasons for exercising the powers of
postponement of issue of process. The judicial discretion cannot be guided
by expediency . The Courts are not free from statutory fetters. Justice is to
be rendered in accordance with law. Judicial discretion has to be exercised
in accordance with law and set of legal principles. The discretion, which
encourages illegality or perpetuates illegality cannot be exercised. Order
dated 20.11.2007 ( Annexure P-7) indicates that the trial Court had
considered and heard the complaint on the said date but by a cryptic order
without mentioning the reason or without disclosing the hesitations in the
Magistrate’s mind, the complaint has been sent for inquiry to the SHO
without mentioning the scope and parameters of the inquiry, which could
clarify the factors, which created doubt in the mind of the Magistrate to
arrive at a conclusion whether or not a prima facie case exists for the
issuance of process to the respondents.
In view of the above discussion, I am of the considered
opinion that the impugned order dated 20.11.2007 (Annexure P-7) has
been passed by the Judicial Magistrate without proper judicious application
of mind. The said order being vague and uncertain having been passed,
Cr.Misc. 54913 M of 2007 – 21-
extending unreasonably the scope of the inquiry u/s 202(1) Cr.P.C. is liable
to be quashed.
Accordingly, the petition is allowed and the impugned order
dated 20.11.2007 (Annexure P-7) is hereby quashed.
July 14 ,2008 ( M.M.S.BEDI ) TSM JUDGE