Anwar Ahmad vs The State of Bihar and Another

R.N. Prasad, J.—The prayer in this application is to quash the order, dated 2.12.1983 passed in T.R. Case No. 3285/83 C.R. case No. 1057/85 by Sri A.N. Khan, S.D.J.M., Darbhanga whereby he took cognizance in the case against the petitioner for offences under Sections 147, 323 and 379, Indian Penal Code and has directed for issue of summon for his appearance in the said case.

The facts, as stated in this application, are as follows:

Surat Paswan, opposite party No. 2 had lodged a written complaint on 7.11.1983 before the Sarpanch of Chandan Patty, P.S Haya Chat, Darbhanga alleging therein that at 7 a.m. on 7.11.1983 when he had gone to bury a newly born son, who had expired in the night before, in the village burial ground the petitioner and six others suddenly came there and tried to prevent him from performing the burial, whereupon there occurred heated argument between the parties and in course of it the petitioner and other accused assaulted Surat Paswan and his associates with fists and also threw away the materials (bamboos, kodal etc.) as a result of which burial of the child was prevented thereby hurting their religious sentiments I has further been alleged in that complaint that one of the accused namely, Nisar Ahmad snatched and took away a gold chain worth Rs 500 from the complainant''s neck The Sarpanch took the statement of the complainant, Surat Paswan and his associates and also the statements of some of the witnesses. The order dated 12.11.1983 shows that the Serpent, after having considered the complaint petition, the statements recorded by him and by holding inspection was of the opinion that the allegations were prima facie true and made out a case under Sections 147, 323 and 379, Indian Penal Code and he further observed that since the value of the stolen property was Rs. 500 the case was beyond jurisdiction of the Gram Cutchery and as such he directed that the record of the case be sent at the earliest to the Chief Judicial Magistrate. The record received from the Gram Panchayat was placed before the C.J.M., Darbhanga on 14.11.1983 on which date he directed to register the case and ordered that the case be placed before him on 16.11.1983. On 16.11.1983 he recorded the following order:

Complainant is present and files a power. Perused the complaint petition and S.A. of complaint recorded by Sarpanch. The case is transferred to the court of Sri A.N. Khan, S.D.J.M., Darbhanga, for disposal u/s 192(1), Cr.P.C. To 28.11.1983 for evidence.

In view of the above order, the case was transferred to the S.D.J.M. The letter examined two witnesses of the complaint on 20.11.1983 and then fixed 2.12.1983 as the next date on which he passed the impugned order.

The point which has been raised here on behalf of the petitioner is that the procedure followed by the Chief Judicial Magistrate as well as by the S.D.J.M. are illegal and violative of the provisions of Section 192, 200 and 202 of the Code of Criminal Procedure (hereinafter referred to as the Code) It has been submitted that once the petition of complaint filed before Gram Cutchery was found to be beyond jurisdiction, all proceedings before the Sarpanch being without jurisdiction must be regarded in the eye of law as being non est. It is, therefore, urged that the statements of the complain tint as well as the statements of the witnesses recorded by the Sarpanch cannot be accepted as valid. The submission is that since the entire proceeding before the Sarpanch was without jurisdiction, it was incumbent upon the Chief Judicial Magistrate to examine the complaint on S.A. before transferring the case to the S.D.J.M. u/s 192(1) Code of Criminal Procedure. The sections reads as follows:

Section 192(1).--Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

Since the order-sheet mentions that the Chief Judicial Magistrate has perused the complaint petition and the S.A. recorded by the Sarpanch, there can be no doubt that the Chief Judicial Magistrate has applied his mind to the facts of the case and as such had taken cognizance, and thereafter he transferred the case to the S.D.J.M. Section 200 of the Code requires that the Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and witnesses present Thus, the Chief Judicial Magistrate, who had taken cognizance of the case should have examined the complainant on S.A. before he transferred the case u/s 192(1) of the Code to the S.D.J.M. It has been contended that the Magistrate who takes cognizance in the complaint case must record the statement of the complainant on S.A. before he makes a transfer of the case to another Magistrate u/s 192 of the Code of Criminal Procedure and if this is not done the transfer as well as the order of cognizance are vitiated.

Section 62 of the Bihar Panchayat Raj Act, 1947 confers jurisdiction on the Gram Cutcherty to try certain types of cases of minor nature. Section 62 is as follows:

Criminal Jurisdiction--Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), and subject to the provisions of this Act, a bench of the Gram Cutcherry shall have jurisdiction concurrent with that of the Criminal Court within the local limits of whose jurisdiction the bench is situate for the trial of the following offences as well as abetment of and attempts to commit any such offence, if committed within the local limits of its jurisdiction, namely:

(a) offences under the Indian Penal Code (45 of 1860), Sections 140, 143, 145, 147, 151, 153, 160, 172, 174, 178, 179, 169, 277, 283, 285, 286, 289, 290, 294, 323, 334, 336, 341, 352, 356, 357, 358, 374, 379, 380, 381, 403, 411, 426, 428, 430, 447, 448, 461, 506, 510;

(b) offences under the Bengal Public Gambling Act, 1867 (Ben. Act 2 of 1867);

(c) offences under Sections 24 and 26 of the Cattle Trespass Act 1871 (1 of 1871);

(d) except as otherwise provided offences under this Act or under any rule or bye-law made thereunder; and

(e) any other offence under any other enactment, if empowered in this behalf by the Government:

Provided that the Bench shall not take cognizance of any offence under Sections 379, 380, 381 or 411 of the Indian Penal Code (45 of 1860) in which the value of the property alleged to be stolen exceeds (one hundred rupees) or in which the accused-

(i) has been previously convicted of an offence punishable under Chapter XVII of the Indian Penal Code (45 of 1860) with imprisonment of either description for a term of three years or upwards; or

(ii) has been previously fined for theft by any bench of the Gram Cutcherry; or

(iii) is a registered member of a criminal tribe u/s 4 of the Criminal Tribes Act, 1924 (6 of 1904); or

(iv)has been bound over to be of good behaviour in proceedings instituted u/s 109 or 110 of the Code of Criminal Procedure, 1898 (5 of 1898):

Provided further that the Gram Cutchery shall not take cognizance of any offence in respect of which a complaint has been filed against the Gram Panchayat, a Mukhiya or any other member of the Executive Committee, a Sarpanch or a Panch.

The types of cases under the Indian Penal Code which can be tried by the Gram Cutcherry are mentioned in Clause (a) of the aforesaid section and this includes offence under Sections 147, 323 and 379 Indian Penal Code. The proviso, however, states that, the Bench shall not take cognizance of any offences under Sections 379, 380, 381 and 411 of the I.P.C. in which the value of the property alleged to be stolen exceeds Rs. 100. In the present case the value of the alleged stolen property is stated in the complaint petition to be Rs. 500 and the Sarpanch was prima facie also of the opinion that this was the value of the alleged stolen property. In these circumstances, the Gram Cutcherry had no jurisdiction to take cognizance in the case and hence it must be held that the entire proceeding before the Sarpanch, including recovery of statement on S.A. was without jurisdiction. This view is supported by the decision reported in 1969 BLJR 627-Dhani Sah and Ors. v. Suchan Sah and Ors. In that case the complaint petition disclosed an offence u/s 324 of the Indian Penal Code which is not triable by the Gram Cutchery but still the trial took place there resulting in the conviction of the accused persons. They challenged the order of conviction and sentence and urged that the entire trial was vitiated and was without jurisdiction. It has been observed in paragraph 3 of the aforesaid judgment that at the time of taking cognizance on the facts stated in the complaint it is the duty of the Gram Cutchery to see as to whether it has jurisdiction to try the case u/s 62 of the Panchayat Raj Act on the allegations made out in the complaint petition and if it comes to the conclusion that on those allegations it will have no jurisdiction, it has got to refuse to take cognizance of the case and leave the complaint to go and file his complaint petition before the S.D.J.M. The question of taking cognizance does not depend upon proof of the facts alleged in the complaint petition in course of the trial. Their Lordships held that since the petition of complaint prima facie disclosed an offence u/s 324, Indian Penal Code the Gram Cutchery had no jurisdiction to take cognizance of and try the case.

It is significant to note that as regards Clauses (a) to (e) of Section 62 of Panchayat Raj Act the word used is trial but in the Proviso what has been barred is even the taking of cognizance. Therefore, the legal position which emerges is that the Gram Cutchery in the normal course may initiate proceedings and try the cases relating to such of the offences under the Indian Penal Code which are listed in Clause (a) of Section 62, but when it is dealing with cases involving offences under Sections 379, 380, 381 and 411 Indian Penal Code, it must examine at the very outset if the case falls within the ambit of the Proviso and if it is so the Gram Cutchery must stay its hands at that very stage and must not initiate any proceeding because it has no jurisdiction even to take cognizance and it must in the very beginning transfer the case to the regular court of the Magistrate. In the instant case, which is covered by the Proviso, the Gram Cutchery had no jurisdiction to deal with the case at all the entire proceedings before the Sarpach must be regarded as invalid and non est.

The point that has been raised is that under the provisions of Section 200 of the Code of Criminal Procedure, the Chief Judicial Magistrate having applied his mind and having taken cognizance was required to examine the complainant on S.A., and also record the statement of witnesses present if any, and only thereafter he could have transferred the case u/s 192(1) Code of Criminal Procedure to the Court of S.D.J.M. It has been argued that since the complainant was not examined by the C.J.M. on S.A., there was a serious legal lacuna which vitiates the entire subsequent proceedings. It has also been pointed out that even the S.D.J.M. to whom the case ultimately came on transfer did not record the statement of the complainant on. S.A. and in fact acted upon the statement which had been recorded by the Sarpanch and thereby he perpetuated the illegality committed by the Chief Judicial Magistrate. By a series of decisions, it is now well-settled that the omission to examine the complainant on S.A. is not an illegality which will vitiate the trial but merely an irregularity which is curable. There are two cases decided by Justice Jawala Prasad and reported in AIR 1920 Pat 232-Emperor v. Hema Gope and at page 700-Abdul Alt V. Emperor, in which it has been held that the failure to examine the complainant on S.A. u/s 200; Code of Criminal Procedure is a mere irregularity which can be cured and does not vitiate the proceeding unless of course it can be shown that this omission has occasioned a failure of justice or has prejudiced the accused in any manner. However, in the same volume at page 670 there is a single Bench decision of Justice P.R. Das, as he then was,-AIR 1920 Patna 670-Mangu Koeri v. Emperor in which His Lordship held that the omission to examine the complainant on oath vitiates the entire proceeding and is not a mere irregularity which is curable. In taking this view his Lordship placed reliance on the case of Jhuna Lal Saltu v. Emperor reported in (1917) 2 PLJ 657. There was thus at that time a conflict of legal opinion. The position, however, is now settled by a special Bench decision of this Court reported in Rs. 930 ILR 9 Patna page 707-Bharat Kishore Lal Singh Deo v. Yudhistir Mandal. Their Lordships held that the view taken in the Jhunalal case (supra) is erroneous and the Court observed as follows:

Every High Court in India has held that the omission to examine the complainant on oath is in fact not an illegality but is an irregularity and being an irregularity the next question that arises is as to whether the petitioner has by reason of the irregularity, been put to any substantial injustice.

The Special Bench, therefore, agreed with the view taken by Justice Jawala Prasad in the two cases reported AIR 1920 Patna as mentioned above, The same view has been reiterated in the subsequent decisions of this Court. Reference in this connection may be made to the decisions recorded in Raghunandan Lal Vs. Emperor, In Re: Ramjas Marwari, and Begam Rai and Others Vs. The State, . Thus according to the decisions of this Court as referred to above, the position is that more omission to examine the complainant on S.A. u/s 200 of the Code at the time of taking cognizance does not amount to an illegality so as to vitiate the trial, but it amounts to a mere irregularity and such an irregularity is curable unless it can be shown that the omission has caused failure of justice or prejudiced the accused in his defence.

In the instant case the position is that the Chief Judicial Magistrate at the time of taking cognizance did not himself examine the complainant on S.A. but in fact acted upon the statement on S.A. of the complainant which had been recorded by the Sarpanch, and S.D.J.M. also on the same basis has issued summons to the petitioner for undergoing trial in the case. It has been submitted that the case is at the initial stage and hence there should be no difficulty in setting aside the impugned order instead of examining the question as to whether the irregularity has resulted, or is likely to result in injustice. It must be borne in mind that when the complainant is called upon to make a statement on oath before the court in support of the allegations made in the complaint petition. This is the first occasion when he is subjected to judicial scrutiny and the court has the opportunity of putting questions to him with a view to ascertaining how far the allegations are prima facie acceptable for initiating the judicial process. Therefore, the provision for examination of the complainant on S.A. is a valuable safeguard provided by the legislature and, therefore, should be strictly followed. It may often be that at the very outset the Magistrate, on the basis of the complainant''s statement on S.A. and also on examination of the witnesses present, if any, may find that there is no sufficient ground for proceeding and may pass an order u/s 203 of the Code of Criminal Procedure. Hence, when the case is at the initial stage, the proper course may be to cure the irregularity in the very beginning and direct the Magistrate to examine the complainant on S.A. and then proceed in accordance with law The position would be different if without examining the complainant on S.A. the trial has proceeded substantially and it is in such cases that it would be proper and necessary to examine the question whether the irregularity has caused any failure of justice. In my opinion, therefore, since the case is at the initial stage and cognizance has been taken on the complaint without examining the complainant on S.A., the proper course is to quash the order of cognizance and remit the case to the Magistrate for proceeding in accordance with law.

In the light of the above discussion, I accept the prayer of the petitioner for setting aside the impugned order dated 2.12.1983 whereby summons has been ordered to be issued to him for appearance and standing trial. Accordingly, the impugned order is hereby quashed and the case is remitted to the court of the Chief Judicial Magistrate, Darbhanga, for proceeding from the stage of Section 200 of the Code of Criminal Procedure While taking cognizance he should examine the complainant on S.A. and any witness which may be produced and thereafter proceed in accordance with law.

The application thus stands allowed.