Diganta Barah vs State Of Assam And Anr.

Heard Mr. A. M. Borah, learned counsel for the petitioner and Mr. A. M. Mojumdar, learned Additional Public Prosecutor for the State respondent

and also Mr. J. Borbhuiya, learned counsel for the respondent No. 2.

The petitioner herein is a Superintendent of Police, Dhubri District and the respondent No. 2 is a Deputy Superintendent of Excise at Gohpur,

Sonitpur and prior to that she was working at Margherita. Necessary facts in brief is that the respondent No. 2 filed a complaint case being CR Case

No. 263/2016 before the Court of the learned CJM, Dhubri raising certain allegations that on 19.12.2015, while she along with her driver and advocate

come to Dhubri to cause personal service of summon and document in connection with TS No. 70/15 pending in the Court of Civil Judge, Dibrugarh

upon the petitioner, he refused to accept the notice. And as her advocate who accompanied her informed about the refusal of the petitioner, the

respondent No. 2 herself along with her driver went to the officer chamber of the petitioner to ask about the same then she was asked by the

petitioner to come to his residence in the evening so that he can received the document in presence of his lawyer. Accordingly, when she arrived in

the official residence of the petitioner, she was not responded but still, she awaited in front of his house till night about 10 p.m. The petitioner along

with his wife and other police officials came out from his residence and they along with lady constables misbehaved the respondent and she was

assaulted by the officials and showing threat at gun point, forcefully put her in a vehicle and by filing a false FIR against her, she was illegally detained

in the Dhubri Police Station till next day. On the basis of the said complaint, the learned Addl. CJM to whom the case was endorsed after making an

enquiry u/s 202 Cr.P.C. took the cognizance u/s 120 B 166/294/352/354/357/509/34 IPC vide order, dated 28.04.2016.

Being highly aggrieved with the impugned order of the learned Addl. CJM the present petitioner preferred a criminal revision before the court of the

Sessions Judge, Dhubri bring Criminal Rev. 36/2016 and the same was dismissed by the learned Sessions Judge by the impugned order, dated

05.09.2016. Challenging the aforesaid order, dated 05.09.2016, passed by the learned Sessions Judge, Dhubri upholding the impugned order of taking

cognizance by the learned Trial Court, the present petition has been preferred under Section 482 read with Section 401 Cr.P.C.

The basic contention that has been raised in the present petition is that the learned Trial Court committed error in taking cognizance of the offence

without following the proper procedure of law as laid down u/s 202/204 Cr.P.C. It is stated that as the case was filed u/s 307 IPC which is exclusively

triable by the Session Court, it was incumbent upon the learned Court to examine all the listed witnesses u/s 202 (2) Cr.P.C. but as the said procedure

has not been followed by the Court and straight way issued the process against the accused person by taking cognizance, is bad in law and has cause

prejudice to the accused petitioner. It is stated that it is not open to the learned Magistrate to drop the offence u/s 307 IPC and proceed for the trial of

the accused for some other offences for which he has jurisdiction. Once the Magistrate directed the complainant to produce all his witnesses, the

same Court has no power to rescind/ recall/ review the same on its own as defined u/s 362 Cr.P.C. Such error, if any, needs to be corrected by the

higher judiciary. Thus the challenge that has been made in this petition is that once the court determined to enquire into the matter u/s 202 Cr.P.C., the

Court cannot take cognizance u/s 200 Cr.P.C. and accordingly the impugned order taking cognizance is stated to be bad in law.

The order of the learned Trial Court of taking cognizance was challenged before the revisional Court which was also dismissed by holding that

amendment to a criminal complaint can be allowed if the amendment made related to simple infirmity and that in the said complaint removal of Section

307 IPC was a correction of clerical nature not in violation of Section 362 Cr.P.C. The present petition has been preferred against the impugned order

of the learned Sessions Judge in the Criminal Revision No. 36/16, dated 05.09.2016, upholding the order of taking cognizance by the learned Additional

CJM, Dhubri in C.R. Case No. 263/16, dated 28.04.2016.

The learned counsel for the petitioner, Mr. A. M. Borah has led the Court to the orders passed by the learned Trial Court to press upon the facts

that the Court initially proceeded with the case u/s 307 IPC including other Sections in law directing the complainant to produce all the witnesses u/s

202 Cr.P.C. But the learned Court subsequently dropped the Section 307 IPC and also without examining all the listed witnesses has taken the

cognizance of the offence.

Refuting the submission of learned counsel for the petitioner, it has been urged by Mr. J. I. Borbhuiya, the learned counsel for the respondent that

there is no any legality whatsoever in the order passed by the Trial Court as well as the Revisional Court which may call for interference. It has been

vehemently urged that even in case the complainant could not produce all his witnesses, the Court is not debarred from taking cognizance if otherwise

the complainant and other witnesses produced, make out a prima facie case for proceeding. It is the prerogative of the Magistrate and directory in

nature while exercising his power under the Code of Criminal Proceeding, wherein the power of Revisional Court is restricted in interfering with the

discretionary power of the Court unless there is error and illegality in passing the order. It has been urged that the learned Trial Court as well as the

Revisional Court has elaborately discussed all the matters on record while passing the orders.

Elaborating the facts and circumstances, the learned counsel for the respondent has argued that the learned court below has examined two vital

witnesses u/s 200/202 Cr.P.C. who are the only eye witness to the occurrence and since there was a misquotation about the Section 307 IPC by way

of clerical mistake, so the same was corrected by the complainant by filing appropriate petition before the Court and the Court was pleased to strike

out the same after going through the record. The purpose of enquiry u/s 202 is to satisfy about the prima facie case, which has been exhausted in this

case. Since that offence u/s 307 IPC is no more before the Court as such it is not at all mandatory to examine all the witnesses u/s 202 (2) Cr.P.C.

Yet another contention raised by the learned counsel for the respondent that the provision of Section 362 Cr.P.C. will not come into play in this case

as it deals with “judgment†and “final order†at the conclusion of the trial, passed by the learned Court. In the given case the complainant has

shown her inability to produce her one of her listed witness with the reason thereof assigned and has prayed to strike the offence u/s 307 which was

wrongly quoted and the learned Trial Court has allowed the same after verification of the record. In the given circumstances there is no illegality while

taking cognizance by the learned Magistrate.

So far as the provision of Section 202 Cr.P.C., the same came to play when the Magistrate after examining the complainant and his witnesses

present if any decide to take further step to ascertain whether the allegations prima facie true or not. The object of Section 202 Cr.P.C. is to enable

the Magistrate to form an opinion as to whether process should be issued or not. At the stage what the Magistrate has to see whether there is

evidence in support of the allegations made in the complaint and not whether the evidence is sufficient to warrant a conviction. In Section 202 (2)

Cr.P.C., proviso the expression “all his witnesses†whom the complainant wishes to examine (Charan Rout Vs. Prafulla Kumar Mangaraj, 1997

Cr.LJ 1010) where the Magistrate after recording the statement of the complainant u/s 200 Cr.P.C. fixes the date for evidence of the complainant

witness but no witnesses examined by the complainant and on the basis of material on record issues process against the accused, it cannot be said

provision under Section 202 Cr.P.C. have not been complied with (LML Ltd. Vs. Kailash Narayan Rao 2008 Cr.LJ 1718). It is elementary that if it is

not possible for the Magistrate to take cognizance of offence on the existing materials, he can direct an enquiry under Section 202. If the materials

existing are sufficient, there is no impediment for the Magistrate to take cognizance of the offence. In Manoj Rai Vs. State of Jharkhand, reported in

2010 (1) AIR Jhar R 764, it has been held that examination of all the witness cited in complaint not necessary unless prejudice is caused to the

accused.

But in case of Sessions Triable cases examination of all the listed witnesses is mandatory prior to taking cognizance and committal of the case and

issuance of process against the accused without examining all the witnesses is not proper.

The only requirement is that the Magistrate should call upon the complainant to produce all his witnesses in support of his contention and then to

consider the evidence produced under Section 200 and 202 Cr.P.C. for satisfying himself as to whether there was sufficient case for proceeding

against the accused. The Magistrate is not obliged to examine the witnesses who were not produced by the complainant. The Magistrate can dismiss

the complaint if the witnesses necessary in his opinion to to be produced under Section 202 Cr.P.C., if called upon, are not produced by the

complainant but it cannot be accepted that the summoning order is bad in law simply as all the witnesses are not examined under Section 202 [Sardar

Awartar Singh Vs. State of U.P., 2006 Cr.LJ 715 (717) (All) : 2006 (1) All LJ 457].

The Apex Court in Rosy Vs. State of Kerala, 2000 Cr.LJ 930 : 2000 (1) Crimes 110 (SC). While dealing with such a question observed as follows

:

“It is only if the Magistrate decides to hold the inquiry the provision to sub-section (2) of Section 202 would come into operation. If the offence is

triable exclusively by the Court of Session, the magistrate himself has to hold the inquiry and no direction for investigation by police shall be made

inquiry can be held for recording evidence on oath and if he thinks fit, sub-section (2) of Section 202 give discretion to the Magistrate to record

evidence of witnesses on oath. To this discretionary power, the proviso carves out an exception. It provides that for the offence triable exclusively by

the Court of Sessions, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath.â€​

The complainant has to examine only those witnesses on whom he or she places reliance. Under Section 202 (2), proviso what is required of the

Magistrate is that he should call upon the complainant to produce all his witnesses and examine them on oath. This does not mean that the complainant

is bound to examine even those persons on whom he/she does not want to place reliance [Chhotey Lal Vs. State of U. P., 2006 Cr.L.J 2265 (2267)

(All)].

This word “his witness†occurring in the proviso to sub-section (2) of Section 202 Cr.P.C. is of material significance. The formal witnesses,

such as doctor, Investigation Officer, executive Magistrate, Police constable etc. are not under the command of the complainant. They are not the

witnesses of the complainant’s confidence. Hence they are not “his witnessesâ€. Thus the formal witnesses are not covered by the proviso of

Section 202 (2) Cr.P.C. [Kallu Pal Vs. State of U.P., 2008 Cr.L.J 3229 (3230) (All)].

If some of the witnesses named in the complaint petition are not examined and cognizance of the offence is taken on the basis of the statements of

the witnesses produced by the complainant and examined by the Court, the order of the Magistrate taking cognizance of the offence is not vitiated

(Bata alias Batakrushna Behera Vs. Anama Behera, 1990 Cr.L.J 1110).

Thus the enquiry u/s 202 does not envisage full dress trial and administrate the Magistrate to satisfy himself on the basis of evidence adduced by

the complainant as to whether prima facie case is made out against the proposed accused. Turning to the present case, it is to be noted that although

the initially the case was filed u/s 307 along with other Sections of law but on the prayer of the complainant that the aforesaid Section was inserted by

clerical mistake, the learned Court after going through the record by allowing the prayer dropped the said Section. Now the question arises whether

such order passed by the Court tantamount to review of his order and is not maintainable in terms of Section 362 Cr.P.C. as contended by the learned

counsel for the petitioner. The Section 362 Cr.P.C. read as follows- Section 362: Court not to alter judgment.- Save as otherwise provided by this

Court or any other law for the time being in force, no court when it has signed its judgment or of final order disposing the case, shall alter or review

the same expect to correct a clerical or arithmetical error.

Record reveals that the learned Trial Court after filing of the complaint directed the complainant to produce all her witnesses for enquiry u/s 202

Cr.P.C. vide order, dated 20.01.2016, and thereafter the complainant produce one witness apart from producing herself as witness. On the day of the

examination of one of the witness, the complainant made a prayer to the Court to allow her to examine one another witness and also made a prayer to

strike out the Section 307 IPC which was stated to be inserted by clerical mistake. The Court on perusal of the statement of the complainant recorded

u/s 200 Cr.P.C. and the content of the complaint allowed the prayer of the complainant by holding that the Section 307 IPC seems to be wrongly

inserted vide order, dated 15.02.2016. On the next date, i.e. on 08.03.2016, the complainant prayed to expunge the name of one of the listed witness,

Mr. Ashim Chamuah (Advocate), as the said witness is not willing to adduce his statement and he is also disengaged by her. The Court on the said

petition observe that there is no provision as such for expunging the name of the witness in the complaint petition but however, as the complainant

declined to adduce any further witness, the learned Court made an observation that the complainant may or may not examine all the listed witnesses.

The prayer for expunging the name of witness was rejected and after careful examination of the complaint as well as the two witnesses examined by

the complainant u/s 202 Cr.P.C. on being satisfied about the prima facie case, the learned Court took cognizance of the offence under Section

120(B)/166/294/352/354/357/509/34 IPC vide order, dated 28.04.2016. The revision preferred against the aforesaid order was dismissed, upholding the

orders so passed by the learned Trial Court with the observation that the Magistrate has allowed the correction of the complaint petition by striking the

Section 307 IPC from the complaint and the provision of Section 362 Cr.P.C. does not restrict the order of the Magistrate allowing correction of

clerical error in a complaint petition.

In the given case, the Magistrate while allowing the correction in the complaint petition has gone through the complaint petition as well as the

statement of witnesses. Bare perusal of complaint as well as the statement of the witnesses, there is no complain of attempt to murder on the part of

the accused persons and it was the allegation in the complaint that the complainant was threatened at gun point and there is no any ingredient of

offence u/s 307 IPC. In such eventuality, allowing the correction in the complaint petition appears to be proper and after deletion of Section 307 IPC,

remaining offences are cognizable but triable by Magistrate. In that sense that case no more remains exclusively triable by Session Court and as such,

examination of all the witnesses u/s 202 Cr.P.C. not mandatory. The Court, however, has sufficiently complied with the provision of Section 202

Cr.P.C. prior to taking cognizance of the offences. Therefore, contention raised by the petitioners in the instant petition is not sustainable.

Further contention of the petitioner regarding non-examination of listed witness, Mr. A. Chamuah, it can be seen that the said witness was not

related to the cause of action of the present case nor he was present at the place of occurrence as has been stated by the witnesses, so there cannot

be any prejudice to the accused petitioner for his non-examination. In my forgoing discussions, it has already been mentioned about the necessity of

examination of witnesses prior to taking cognizance of an offence is only to satisfy the Court about the authenticity and or prima facie case of a

person to proceed with the case. Having gone through the order of the Magistrate, I do not find any error of law committed by him. The Magistrate

has exercised his judicial discretion and has given cogent reasons for his decisions/orders.

What is cognizance and the object and scope of 202 Cr.P.C. has been elaborately dealt with by the Hon’ble Supreme Court in 2008 (2) SCC

492, S. K. Sinha Chief Enforcement Officer Vs. Videocon International Ltd. in the following manner-

“The expression cognizance has not been defined in Cr.P.C. But the word (cognizance) is of indefinite import. It has no esoteric or mystic

significance in criminal law. It merely means “become aware of†and when used with reference to a Court of a Judge, it connotes “to take

notice of judiciallyâ€. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in

respect of such offence said to have been committed by someone.

“Taking cognizance†does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected

commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or

condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken

cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a

Magistrate can be said to have taken cognizance.

The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a

Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is extremely limited. At that

stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient

ground for conviction of the accused.â€​

The power of quashing criminal proceeding should be exercised very sparingly and with circumspection and that to in the rarest of rare cases, the

extra-ordinary or inherent power do not confer any arbitrary jurisdiction on the Court to act according to its whims. In Minu Kumari & Anr. Vs. State

of Bihar & Ors reported in 2006 4 SCC 359, it has been held that inherent jurisdiction though wide but exercise of such jurisdiction is justified by the

case specifically laid down in Section 482. Such power to be exercised to prevent the process of the Court but not to be exercised stifle a legitimate

prosecution. Further it has been held that Section 482 of the procedure does not confer any new power on the High Court. It only saves the inherent

power which the Court possessed and it envisage three circumstances under which the inherent jurisdiction may be exercised, namely, (I) to give

effect to an order under the Court, (II) to prevent the abuse of process of Court (III) to otherwise secure ends of justice. While exercising such

power, the Court does not function as a Court of appeal or revision.

Exercise of powers under the Section would be justified to quash any proceeding if it finds the initiation/continuance of it amounts to abuse of

process of Court or quashing of this proceeding would serve the ends of justice.

In the instant matter, order of taking cognizance has not vitiated the proceeding, continuance of which can be held as abuse of process of law nor

the order of the Revisional Court is improper, which may necessitate the interference into the matter by invoking extra-ordinary jurisdiction u/s 482

Cr.P.C.

For the reasons above, this Court is not inclined to interfere into the order under challenged. Accordingly, the petition stands dismissed. The interim

order stand vacated. Return the Case Diary, if any.