Hare Krishna Jaiswal @ Kisto Bhagat vs The State of Jharkhand and Prakash Mishra

D.K. Sinha, J.—This criminal revision is directed against the order impugned dated 13.1.2010 passed by the learned S.D.J.M., Bermo at Tenughat in Complaint Case No. 295 of 2006 (T.R. No. 471 of 2010) by which the complaint of the Petitioner-complainant was dismissed u/s 203 Code of Criminal Procedure.

Prosecution story in short was that the Petitioner had presented a written report before the Jaridih Police Station on 26.7.2005 alleging inter alia, that he was called upon by the Officer-in-Charge of Jaridih Police Station at about 6:00 p.m. on 25.7.2005 and he was interrogated with respect to the land which belonged to Madan Khanna and Vijendra Khanna and from there he returned back at about 11 O''clock in the night. As soon as he was about to enter into his house after alighting from the Bolero vehicle, he was overpowered by one Prakash Mishra and his goons, who started assaulting him by holding his neck and also obtained his signature on a blank paper. He was threatened by the assailants that he had invited danger by facilitating Madan Khanna to obtain his bail. He was threatened by them to be falsely implicated in various offences like theft, dacoity, murder and rape. He communicated the matter to the members of his family. Though he was inclined to inform the occurrence to the police at the police station but upon finding that goons of said Prakash Mishra were there in two static vehicles, he could not dare to go. On the written report of the Petitioner, Jaridih P.S. Case No. 87 of 2005 was registered under Sections 341/323/34 of the Indian Penal Code on 26.7.2005.

The police after investigation submitted final form exonerating the criminal liability of the accused persons viz. Prakash Mishra and unknown. The Petitioner then filed a protest petition, which was treated as Complaint Case No. 295 of 2006 and the matter was transferred to the learned Judicial Magistrate, 1st Class, Bermo at Tenughat for inquiry u/s 202 of the Code of Criminal Procedure. The statement of the Petitioner was recorded on solemn affirmation. During course of inquiry, the learned court-below examined two more witnesses but the learned S.D.J.M., Bermo at Tenughat having been dissatisfied with the materials collected during course of enquiry dismissed the complaint u/s 203 Code of Criminal Procedure.

Mr. Ajit Kr., the learned Counsel appearing on behalf of the Petitioner, submitted that the statement of the Petitioner, having been recorded on his solemn affirmation, and the statements of the inquiry witnesses, prima facie disclosed the alleged offence against the accused persons for which cognizance of the offence ought to have been taken by the learned S.D.J.M. , though the Petitioner was keen and had taken steps for production of further witnesses during enquiry. What the inquiring Magistrate was required u/s 202 of the Code of Criminal Procedure was to satisfy himself on the evidence adduced by the prosecution as to whether prima facie case was made out or not and for that, no detailed evidence but prima facie materials were required. It was the quality of the evidence and not the quantity, which needed for subjective satisfaction of the Court to take cognizance of the offence.

The learned S.D.J.M. while dismissing the complaint observed that there was no consistency between the statement of the Petitioner, recorded on solemn affirmation, and the evidence of other two enquiry witnesses and for the last several dates, Petitioner was not taking any step to proceed with the prosecution, therefore, he did not find sufficient basis for continuation of inquiry u/s 202 of the Code of Criminal Procedure and the complaint was dismissed.

Section 203 of the Code of Criminal Procedure speaks about dismissal of complaint,

If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) u/s 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

In the instant case, I find that the learned S.D.J.M. has not assigned the reasons for dismissal of the complaint of the Petitioner except that the complainant was not taking steps for the last few dates to proceed with the prosecution and that there was no consistency in the statement of the complainant with that of the inquiry witnesses. The learned Counsel has pointed out that the inquiry witnesses corroborated the allegation that was made by the complainant-Petitioner against the accused persons which attracted the offence under Sections 341/323/34 of the Indian Penal Code against the accused and that the observation of the learned S.D.J.M. that there was no consistency in the evidence of the witnesses appears to be an error of record, which cannot be sustained. The other ground, which has been taken, is that for the last few dates, the complainant-Petitioner was not taking interest, without specifying the dates and the opportunity given to him. I find that the reasons discussed by the learned S.D.J.M., Bermo at Tenughat for dismissal of the complaint u/s 203 of the Code of Criminal Procedure are not in consonance with the provisions of Section 203 Code of Criminal Procedure therefore, the order impugned dated 13.1.2010 recorded by him in Complaint Case No. 295 of 2006 needs interference.

Accordingly, this criminal revision is allowed and the order impugned is set aside with the direction to the learned S.D.J.M., Bermo at Tenughat to pass an order afresh by giving an opportunity to the complainant with the limitation that entire exercise of enquiry shall be completed within a month of the receipt of the copy of this order or on presentation of certified copy of this order by the Petitioner complainant which would be earlier.