Bishun Sah vs Sailendra Prasad and Another

Anwar Ahmad, J.—This application in revision is directed against the order of the learned Subdivisional Magistrate dismissing the complaint filed by the petitioner u/s 203 of the Code of Criminal Procedure on the ground that no prima facie case has been made out.

A complaint under Sections 148, 323, 379 and 448 of the Indian Penal Code was filed by the petitioner before the subdivisional Magistrate on the 14th October 1966 regarding an occurrence which took place a day earlier at about 2 P.M. After the petitioner was examined on solemn affirmation, the learned Subdivisional Magistrate directed an inquiry into the complaint by Shri K. Gopal, Sub-Deputy Magistrate, Chapra. The enquiring Magistrate examined four witnesses, all of whom were named in the petition of complaint and came to the conclusion that no prima facie case had been made out. Acting on the report of the enquiring Magistrate to that effect, the learned Subdivisional Magistrate dismissed the complaint u/s 203 of the Code of Criminal Procedure on the ground that no prima facie case had been made out.

It was contended by Mr. Kailash Roy for the petitioner that the evidence adduced before the enquiring Magistrate did disclose a prima facie case and, as such, the order of the Subdivisional Magistrate, which, in its turn, was solely based on the report of the enquiring Magistrate, was liable to be set aside. It was, further, contended that the test applied by the enquiring Magistrate for disbelieving the evidence adduced before him was erroneous.

It is settled that, for determining the question whether any process is to be issued or not, what the enquiring officer has to see is whether there is sufficient ground for proceeding, that is to say, whether there is prima fade evidence in support of the allegations made in the complaint, and not whether there is sufficient ground for conviction (Vide Chandra Deo Singh Vs. Prokash Chandra Bose and Another, . A perusal of the report of enquiring Magistrate in the present case (annexure B) goes to show that witness No. 1, Bishwanath Singh supported the complainant and was an eye-witness to the occurrence. Thus, so far as this witness is concerned, there was prima facie evidence. Nothing has been said in the report or in the order of the learned Subdivisional Magistrate as to why his evidence should not be accepted. The evidence of witness No. 3, Mohan Prasad according to the report, also supported the complainant. His evidence has not been acted upon as he happens to be a bhagina of the complainant, although, on a Court question, he denied to have any relationship with the complainant. The prima facie evidence of witness No. 3 being there, it was not the function of the enquiring Magistrate to usurp the powers of a trial Court and reject his evidence outright. It would be for the Court trying the offences to see as to whether the evidence of witness No, 3 is worthy of reliance notwithstanding the relationship with the complainant. In Karnail Singh v. State of Punjab AIR 1954 SC 204 it Was been laid down that the evidence of a relation can be relied upon provided it is corroborated. It is, therefore, clear that the order of dismissal of the complaint on the ground that no prima facie case had been made out before the enquiring Magistrate cannot be allowed to stand.

Reliance was placed by Mr. Tarakant Jha, learned Counsel for the opposite party, on a recent decision of their Lordships of the Supreme Court reported in Laxminarayan v. State of Uttar Pradesh 1968 PLJR 25. In that case, Section 436 of the Code of Criminal Procedure came up for consideration of their Lordships and it was held that Section 436:

only empowers the revisional court to order further enquiry and not to direct a trial. The High Court exceeded its jurisdiction in ordering a trial after directing that a charge under a particular section be framed.

On the submission of learned Counsel, this Court cannot set aside the order dismissing the complaint which will have the necessary effect of summoning the members of the opposite party. This submission of learned Counsel is without any force. The present application has been filed under Sections 435 and 439 of the Code, of Criminal Procedure. The provisions of Sub-section (1) of Section 439 of the Code clearly lay down that this Court, in its discretion, can exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338 of the Code. The power conferred by these sections are certainly wider than those conferred by Section 436 of the Code, which empowers the Court only to order further inquiry. As a matter of fact, Section 436 does not find place in Sub-section (1) of Section 439. The decision of their Lordships of the Supreme Court relied upon by learned Counsel which lays down the powers of a Court acting u/s 436 is, as such, of no avail to the opposite party.

In the result, the application is allowed and the impugned order is set aside. The case will now proceed in the Court below in the usual course in accordance with law.