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Shiva Shankar Prasad vs Hardeo Sahay on 27 November, 1961

Patna High Court
Shiva Shankar Prasad vs Hardeo Sahay on 27 November, 1961
Equivalent citations: 1962 CriLJ 446
Author: R Prasad
Bench: R Prasad

ORDER

Rajkishore Prasad, J.

1. This is a reference by the learned Sessions Judge, Muzafferpur, Under Section 438 or the Code of Criminal Procedure, (hereinafter referred to as the Code), for quashing tile order of the 10th March, 1961, summoning the petitioner, Shiva Shankar prasad, Under Section 379, Indian Penal Code.

2. The opposite party, Hardeo Sahay, a muktaar practising at Sitanurhi, filed a complain on 7-10-1960 under Sees. 379 and 504 of the Indian Penal .Code against the petitioner and others. The learned Subdivisional Magistrate, Sitamarhi, took cognizance, and, examined the complainant on solemn affirmation and sent the complaint for enquiry and report to C. I. (Revenue) Sitamarhi The report was not received by 10-3-1961.. Nevertheless, the honorary Magistrate, acting for the Sub-Divisional Magistrate that day, again, took cognisance of the case and without Waiting for the enquiry report and, in its absence, summoned the petitioner Under Section 379, Indian Penal Code.

3. The single question, for determination, is whether the order complained of is illegal and should be set aside?

4. Chapter XVI, under which Sees, 20O to 203 occur, deals with the procedure to be followed by a Magistrate union taking cognizance of an effence upon complaint, that is, when he takes cognisance Under Section 190, Clause (a), of the Code.

5. Section 200 of the Code provides that a Magistrate taking cognizance of an offence °n complaint shall at once examine the complainant and the witnesses present, if any, Upon on and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by he Magistrate. Section 202 then provides that any such Magistrate, if he thinks fit, for reasons to be recorded in writing, may postpone the issue of process against the person complained against and either enquire into the case himself or cause an enquiry or investigation to be made by any magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. Section 202, as such, speaks of postponement: of issue of process and an enquiry Under Section 202 is discretionary. An enquiry or investigation under Section 202 is designed to afford the Magistrate an opportunity of either confirming or removing such hesitation as he may feel in respect of issuing process against the person complained against. Under Section 202 the Magistrate has the option of only one of two alternatives, e., either to enquire into the case himself or to’ direct an enquiry for investigation.

Section 203, then, lays down that the Magistrate before whom the complaint is made, or to whom it has been transferred, may dismiss the complaint, if, after considering the statement ort oath, if any, of the complainant and th0 witnesses and the result of the investigation or inquiry, it any Under Section 202, there is in his judgment no sufficient ground for proceeding, and in such a case he shall briefly record his reasons for so doing. Section 203 gives very large powers the Magistrate to dismiss a complaint issuing process, but certain conditions are laid down, and these conditions must be strictly fulfilled in making an order under this section, A Magistrate may dismiss a complaint, utter recording his reasons for so doing, (1) if upon the statement of the complainant and his witnesses, if any, upon oath, reduced to writing Under Section 200, he finds that no offence has been committed; (2) if he ‘distrusts the statement of the complainant and his witnesses, if any, upon oath; and (3) if he distrusts those statements, but his distrust not being strong enough to warrant him to act upon it, he divests further enquiry or investigation, as provided by Section 202, and, after considering the result 01 .such enquiry or investigation ho finds that there is no sufficient ground for proceeding. Section 204, then, provides for the issue of process, if in the opinion of the Magistrate there is sufficient ground for proceeding.

6. It is manifest, therefore, from the above scheme of the Code, that when a magistrate taking cognisance of an offence entertains any doubt about the truth or falsehood of the complaint, he shall postpone the issue of process agains1; the person complained against and .cause the matter to be enquired into under Section 202- It is only after the result of (ho investigation or inquiry Under Section 202 that the magistrate, if he finds that there is no sufficient ground for proceeding, he shall dismiss the complaint Under Section 20‘3, or, if in his opinion there is sufficient ground for proceeding, he shall issue process Under Section 204- The judgment which the Magistrate has to form must be based on statements of the complainant and his witnesses, if, any, and he result of the investigation or enquiry Under Section 202.

7. It is now well-settled that when once & Magistrate refuses to summon the person complained against until after the receipt of an enquiry, it is not open to him to summon the accused before he is satisfied that it is a fit case in which the accused should be summoned. When, ‘here-fore, a Magistrate doubts the truth of the complaint and orders an inquiry Under Section 202 of the Code, he should not proceed further with the case until that doubt lies been removed by the receipt Of a report by the officer concerned, who hold; the inquiry Under Section 202 of the Code, or until any other adequate material has been placed before him for the purpose of removing his doubt. If it is found that the original person appointed ‘a hold the enquiry is unduly delaying the matter, or if there is any other good reason, the magistrate may recall it and entrust the inquiry to someone else, but in no case should process be issued infest the person complained “gainst until the quiry report Under Section 202 has born received. Where, therefore, a Magistrate directs an inquiry order Section 202 to hold info a complaint, “he should await the result, and it is improper for him to issue process gainst this person complained against until he receives a report from the qnirincr officer, or, until any other adequate material is placed before- him for the purpose of removing Hs doubt. If, therefore, a Magistrate summons the accused, without receiving a report of the enquiry Under Section 202, or, without” any other material having been placed before him for removing his doubt, and, without recording any I reason for doing s°, his order summoning the accused must be set aside.

8. The above principles emerge from the two’ Bench decisions of this (Court in Bindeshwar v. Rambhujwan 1LR 29 Pat 1059 and in Muhamed Obais v. State 1959 JBL JR 61.

9. In the light of the above crucial test, let us now examine the facts of the instant case. The Sub-divisional Magistrate, who took cognisance, examined the complainant on solemn affirmation,, but postponed the issue of process against the petitioner and ordered a local enquiry by C. I. ((Revenue), Sitamarhi, obviously because he was not satisfied with the truth of the complaint and distrusted the statement of the complainant upon oath and asked the enquiring officer to submit his report by 8fl.l-1960. The said report was not received even by 10-3-1961 in spite of several adjournments. The inquiry was not recalled, even if there was sufficient ground for such action, and, another person entrusted with the said enquiry, to spite of the non-receipt of. the report from the enquiring officer, the honorary Magistrate, who acted for the Sub-divisional Magistrate that day, without recording any reason to show if any other material was placed before him by the complainant which removed the suspicion entertained by the Sub-Divisional Magistrate regarding the truth of the complaint, and, as a matter of I act without recording any reason1 whatsoever, summoned the petitioner Under Section 379, Indian Penal Code. It is plain, therefore, that the order of the 10th March, 196.1, summoning the petitioner, in such circumstances, was illegal and it-must be set aside.

10. For the reasons given above, the reference is accepted and the impugned order is quashed.

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