Allaudin Hawari vs The State of Jharkhand and Md. Shahjahan Khan

R.R. Prasad, J.—Through this writ application, extraordinary jurisdiction of this Court, as enshrined under Article 227 of the Constitution of India, has been invoked on behalf of the petitioner for quashing the order dated 4.12.2009 passed by the Judicial Magistrate, Dhanbad in Complaint Case No. 1391 of 2009, whereby and whereunder, cognizance has been taken under Sections 302/149, 452, 323/149 of Indian Penal Code against the petitioner and others.

The facts giving rise to this application are that on 10.2.2009, the informant-respondent no. 2 lodged a case before Dhanbad Bank More Police Station alleging therein that on 9.2.2009 the petitioner as well as the other accused persons, who were inimical to the informant-respondent no. 2, came to the house of the informant and started assaulting him. In that course, the accused persons did assault Siddiqui Khan (uncle of the informant) causing grievous injuries to him and then he was removed to P.M.C.H. where he succumbed to his injuries and a case was lodged as Dhanbad Bank More P.S. Case No. 106 of 2009 under Sections 302/34 of Indian Penal Code.

Said case on being investigated upon was found to be false, as according to the Investigating Agency, the deceased had received injuries accidentally, which proved to be fatal and, hence, the police submitted final form exonerating all the accused persons from the accusation.

Upon submission of the final form, the informant-respondent no. 2 filed a protest-cum-complaint case stating therein that the accused persons committed offence of murder, as the sister of the complainant had lodged a case u/s 498A of Indian Penal Code against the accused persons and, therefore, the accused persons were insisting on to get the case withdrawn and when the case was not withdrawn, the accused persons after forming unlawful assembly came to the house of the informant-respondent no, 2 and committed offence of murder of Siddiqui Khan. The said protest petition was registered as complaint case bearing No. 1391 of 2009.

Upon filing of such complaint case and after hearing the parties, learned Chief Judicial Magistrate, Dhanbad vide its order dated 20.7.2009 stayed the further proceedings sought to be initiated by the police against the informant-respondent no. 2 upon finding the case lodged by the informant to be false. At the same time, complaint petition was transferred to the court of Judicial Magistrate, lst Class, Dhanbad u/s 192(1) Cr. P.C. for inquiry and disposal. On receiving the complaint, learned Judicial Magistrate examined nine witnesses out of ten and then after finding prima facie case to be true u/s 302/149, 452, 323/149 of Indian Penal Code against all the accused persons including the petitioner summoned the petitioner and other accused persons vide its order dated 4.12.2009 to face trial.

Being aggrieved with that order, this writ application has been filed, wherein the aforesaid order has been sought to be quashed.

Mr. Shailesh, Learned Counsel appearing for the petitioner, in order to assail the order impugned took the sole ground that in view of proviso to Sub-section (2) of Section 202 Cr. P.C. the court should examine all the cited witnesses before issuing summon u/s 204 Cr. P.C, but the court admittedly did not examine all the nine witnesses cited in the complaint petition and, hence, committed grave illegality, as it was the mandatory requirement to be observed by the learned Judicial Magistrate under proviso to Sub-section (2) of Section 202 Cr. P.C.

Learned Counsel in this respect did further submit that admittedly the parties are inimical to each other and that the police in course of investigation did find the allegation to be completely false and thereby the police had sought a proceeding to be initiated under Sections 182 and 211 of Indian Penal Code and under these circumstances, non-examination of all cited witnesses causes prejudice to the accused persons including the petitioner and as such, the order, under which the accused persons had been summoned u/s 204 Cr.P.C, is fit to be set aside in view of the ratio laid down in a case of Rosy and Another Vs. State of Kerala and Others, as the petitioner at the very initial stage of the proceeding has moved this Court for seeking quashing of the order, which has been passed without observing the mandatory requirement of law.

Learned Counsel appearing for the respondent no. 2 did submit that though the requirement of proviso to Sub-section (2) of Section 202 Cr. P.C. is to examine all the cited witnesses but that has been held to be not mandatory in the case of Rosy and Anr. (supra). However, at the same time, it has been held by the Hon''ble Supreme Court that if on account of non-examination of all cited witnesses any prejudice is caused then the order, under which the summon has been issued, can be held to be bad, but here in the instant case, the petitioner has completely failed to establish as to how his case gets prejudiced on account of non-examination of all the witnesses and as such, the impugned order never warrants to be interfered with.

In context of the submission advanced on behalf of the parties, the provision, as enshrined u/s 202 Cr. P.C. needs to be taken notice of, which reads as follows:

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 u/s 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:

Provided that no such direction for investigation shall be made,-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a court, unless the complainant and the witnesses prestent (if any) have been examined on.oath u/s 200.

(2) In an inquiry under Sub-section (1), the Magistrate may if he thinks fit, take evidence of witnesses on oath;

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

Having noticed the aforesaid provision and the scheme of the Act, it be noted that on receipt of the complaint, the Magistrate by following the procedure prescribed u/s 200 may issue process against the accused or dismiss the complaint. Section 203 specifically provides that after considering the statement on oath, if any, of the complainant and witnesses and the result of the inquiry or investigation, if any, u/s 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. For dismissal of complaint, he is required to briefly record his reasons for so doing. In other cases, he has to issue process i.e. either summons or warrants as the case may be as provided u/s 204. However, no summons or warrant is to be issued against the accused until a list of the prosecution witnesses has been filed. Therefore, the question of complying with the proviso to Sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation u/s 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 indispensable course before issuance 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 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. Then the crucial question crops up as to whether it is mandatory on the part of the Magistrate to record the evidences of all the cited witnesses in course of inquiry before issuing summon u/s 204 Cr. P.C.

This question fell for consideration before the Hon''ble Supreme Court in the case of Rosy and Anr. (supra), whereby their Lordships after taking into account the provisions of Sections 200, 202, 203, 204, 209 and 465 Cr. P.C. were pleased to lay down the propositions emerging out of those provisions, which are as follows:

I. (a) u/s 200 the Magistrate has the jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the witnesses present.

(b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses.

(c) In such case the court may issue process or dismiss the complaint.

II. (a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by any other person authorised by him.

(b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage, the proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by the complainant u/s 204(2) before issuance of the process.

(c) The irregularity or non-compliance therewith would not vitiate further proceedings in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later.

Having noticed the principles laid down by the Hon''ble Supreme Court, it is quite evident that non-compliance of the provision would not vitiate the proceedings in all cases, rather the proceedings get vitiated on account of non-compliance of the provision when one is able to establish that prejudice has been caused or is likely to be caused due to non-examination of the witnesses.

Here in the instant case, Learned Counsel for the petitioner tried to impress upon that the case of the petitioner gets prejudiced for the reasons that the parties are inimical and that the police did not find the allegation to be true, but in my view, these situations cannot be the circumstances to establish prejudice on account of non-examination of all the witnesses, rather only those circumstances can be taken into account for establishing prejudice, which arise out of non-examination of the witnesses. Admittedly, nothing was placed in this respect and, hence, I do find any illegality in the impugned order.

Hence, I do not find any merit in this writ application and it is, accordingly, dismissed.