Dina Nath and Others vs State of U.P. and Another

Virendra Singh, J.—Dina Nath, Surendra prasad and Shyam Dhar the revisionists/accused, have preferred this Revision against the order dated 15.04.2004 passed by the Judicial Magistrate, 1st Allahabad thereby rejecting the application of the accused persons regarding their claim of discharge for the offence against them.

I have heard Sri Krishna Kumar Mishra holding brief of Sri B.M. Pandey learned counsel for the revisionists, Sri Anil Kumar Tiwari learned counsel for respondent no. 2 and learned AGA on behalf of the State of U.P.

It is submitted on behalf of the revisionists that since the charge sheet against the accused/revisionists related to the offence of the category of non cognizable offence, therefore, the chrage sheet submitted by the police against the accused shall amount to a complaint as per provisions u/s 2(d) of Cr PC and in a complaint case, no process of summoning the accused can be issued unless a complaint case procedure is adopted and since in this case, the learned lower court did not adopt a procedure provided for trial of a complaint case, therefore, the entire proceeding against the accused/revisionists is null and void and the learned lower court committed error thereby adopting the procedure for trial as police challani case and the revisionists are entitled to be discharged as per provisions u/s 258 Cr. PC.

Learned counsel for the respondents contended that there is no illegality in the impugned order pertaining to the procedure of trial adopted by the learned magistrate because the learned magistrate adopted the procedure for trial of summons case procedure which is very much perfect in the eyes of law as is provided in CrPC.

In the light of the contentions of both the parties, I have gone through the entire facts and circumstances on record. The FIR was registered against the accused persons in this case for the offence u/s 323, 504, 506, 427 IPC. Section 506 IPC is a cognizable offence. Police after completing the investigation submitted the charge sheet only for the offence u/s 323, 504 and 427 IPC. The learned magistrate held that merely due to submission of charge sheet by the police for the offence u/s 323, 504 and 427 IPC, the case against the accused persons does not happen to be a complaint case for which the procedure provided for trial of a complaint case should be adopted. It is also held by the learned magistrate that if for the sake of arguments, it is admitted that the case against the accused persons was filed for such offence for which the case should be treated as complaint case, since the three witnesses have already been examined in the trial, the case against the accused persons becomes to be tried as warrant trial case as per provisions u/s 259 CrPC. Thus the learned magistrate fixed the date for hearing on the application moved on behalf of prosecution u/s 319 CrPC i.e. for summoning the accused persons against whom the charge sheet was not submitted by the police.

With regard to the facts and circumstances of this case, first of all, I would like to go through the definition of the word ''complaint'' provided in Section 2(d) CrPC, which provides that ''complaint'' means any allegation made orally or in writing to a magistrate with a view to his taking action under the Code, that some person whether known or unknown had committed an offence, but does not include a police report. The explanation provided in this regard states that a report made by the police officer in a case which disclosed, after investigation, the commission of non cognizable offence shall be deemed to be a compliant and the police officer by whom such report is made shall be deemed to be the complainant.

Here in this case, admittedly, the police has submitted the charge sheet for the offence u/s 323, 504, 427 IPC which admittedly shows the commission of non cognizable offence, therefore, the police report i.e. the charge sheet in this regard submitted by the police shall be deemed to be a complaint in view of the explanation provided in Section 2(d) CrPC.

In this regard, the procedure provided for trial for the summons trial cases and the warrant trial cases is to be perused. Chapter XIX CrPC deals with the trial of warrant cases while Chapter XX deals with the trial of summons cases. With regard to trial of warrant cases, two categories of cases are provided for trial. One is for the cases instituted on a police report and the other is for the cases instituted otherwise than on police report while with regard to the trial of summons cases, there are no such categories provided. In warrant trial cases, for the cases instituted on police report the trial is to be dealt with as per provisions under Sections 238 to 243 CrPC while the for the cases instituted otherwise than on police report the trial is to be dealt with the provisions u/s 244 to 247 CrPC. The basic difference in the procedure of warrant trial cases in both the aforesaid categories is that in cases instituted on a police report before framing of the charge against the accused, the evidence need not to be recorded while in the cases instituted otherwise than on police report before framing of the charge against the accused, the evidence for the prosecution is to be recorded. For the trial of summons cases, neither there is two such categories of cases as provided in warrant trial cases nor procedure is provided for framing of the charge. Here this case in hand has to be dealt with the procedure provided for trial of summons case as the offences u/s 323, 504, 427 IPC come under the definition of summons cases.

Regarding difference of warrant cases and summons cases, provisions u/s 2 (w) shows that the summons case means a case relating to an offence, and not being a warrant case. The definition of warrant case provided in Section 2 (x) shows that warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The offence u/s 323, 504, 427 IPC involved in this case in hand are not punishable for imprisonment for a term exceeding two years, therefore, being these offence as summons case, the procedure for trial of summons cases provided under Chapter XX is to be adopted in this case. The perusal of the lower court record shows that the learned magistrate has adopted the procedure provided for the trial of summons cases as is revealed form the order sheet of the case on record. No formal charge has been framed against the accused persons by the learned magistrate before proceeding to record prosecution evidence after recording the statements of accused stating substance of accusation to them. Section 251 CrPC provides that when in a summons case the accused appears, the particulars of the offence of which he is accused have to be stated to him and he is to be asked whether he pleads guilty, or has any defence to make, but it shall not be necessary to frame a formal charge. As per provisions u/s 252 CrPC, if the accused pleads guilty, the magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. Section 254 CrPC provides that if the magistrate does not convict the accused u/s 252, the magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. As per provisions u/s 255 CrPC, if the magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal.

Section 258 CrPC provides power to stop proceedings in certain cases. In any summons case instituted otherwise than upon complaint, a magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.

In the case of John Thomas vs. K. Jagadeesan reported in AIR 2001 SC 2651, the Hon''ble Apex Court in respect to the powers of the court u/s 258 CrPC with regard to summons cases laid down the law as follows:

"One of the normal rules in summons cases is that once trial started, it should reach its normal culmination. Section 258 is included in Chapter 20 of the Code in the form of an exception to the aforesaid normal progress chart of the trial in summons cases. But by S. 258 the power of Court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all. Summons cases are generally of two categories. Those instituted upon complaints and those instituted otherwise than upon complaints. The latter category would include cases based on police reports. Section 258 is intended to cover those cases belonging to one category alone i.e. "summons cases instituted otherwise than upon complaints". The segment separated at the last part of the section by the words "and in any other case" is only a sub category or division consisting of summons cases instituted otherwise than upon complaints". That subcategory is not intended to cover all summons cases other than those instituted on police report. In fact, S. 258 vivisects only "summons cases instituted otherwise than on complaints" into two divisions. One division consists of cases in which no evidence of material witness was recorded. The section permits the Court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But by S. 258 the power of Court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all."

In the light of the entire facts and circumstances on record and the provisions of law in this regard, I find no error in the impugned order passed by the Magistrate because since Section 258 CrPC is not applicable in the cases instituted upon complaint and it applies only in the summons cases instituted otherwise than upon complaint and since the charge sheet submitted by the police in this case in hand pertains to the non cognizable offence disclosed after investigation and it amounts to a complaint as per explanation u/s 2(d) CrPC, therefore, the provisions of Section 258 CrPC are not applicable in this case and the contentions raised on behalf of revisionist in this regard have no force.

So far as the question of not examining the police personnel who submitted charge sheet as complainant by the learned lower court as per provisions u/s 200 CrPC is concerned, I am of this view that since Section 200 CrPC itself provides that, when the complaint is made in writing, the magistrate need not examine the complainant and the witnesses if a public servant acting or purporting to act in the discharge of his official duties files the complaint, and since the police officer in this case in hand has submitted the charge sheet deemed to have been a complainant acting as a public servant in the discharge of his official duties, therefore there was no need to examine the complainant by the magistrate as per provisions u/s 200 CrPC.

So far as the question of not adopting the procedure of a complaint case in summoning the accused persons in this case in hand is concerned as is contended on behalf of the revisionist, I am of this view that since there is no separate procedure provided for trial of a summons case instituted on complaint and since there is no binding on the magistrate to examine the complainant first before summoning the accused with regard to the complaint filed by the public servant, therefore there is no error in the impugned order committed by the magistrate for adopting the procedure of trial of summons case thereby summoning the accused on the complaint of the police personnel submitted before the magistrate after investigation in the shape of charge sheet.

Looking into the entire facts and circumstances on record, I am of this view that though the magistrate un warrantedly held that the magistrate is empowered under section 259 Cr.P.C. to convert the summons trial in to the warrant trial while neither he converted it as a warrant trial nor it was necessary and wrongly held that the submission of charge sheet does not happen to be a complainant because the trial against accused persons was being proceeded very much perfect in the eyes of law, therefore this revision has no force for any interference in the impugned order. Hence the revision is liable to be dismissed and is hereby dismissed accordingly. Let the record of Lower Court be sent back forthwith for further proceedings of the case.