Jinilal Mandal vs Chanderdeo Prosad and Others

Dhavle, J.—This is an application in revision against the dismissal of a complaint u/s 203, Criminal P.C. The Sessions Judge was first moved in revision against this order, but declined to interfere. It has been contended on behalf of the petitioner that the procedure followed by the Sub-Divisional Magistrate, whose order is challenged, was irregular in many respects, and that therefore his order should be set aside. The principal grievance of the petitioner is that in the inquiry u/s 202 into the petitioner''s complaint his witnesses were allowed to be cross-examined by the accused and witnesses were examined on behalf of the latter including the Sub-Inspector of Police who was among the accused.

The learned advocate for the petitioner has relied on P. Varadarajulu Naidu Vs. P. Kuppuswami Naidu, which was followed by a Pull Bench of the Madras High Court, whose decision is reported on page 918, Appa Rao Mudaliar Vs. Janakiammal, of the same volume. But as was pointed out in this Court in Mahabir Baitha Vs. Emperor, , the true position appears to be that while the practice of examining the accused and their witnesses, and letting the prosecution witnesses be cross-examined by the defence in an enquiry u/s 202, Criminal P.C., has been repeatedly condemned by the various High Courts, it has not been held that such a course is illegal. Scroop J. in the last mentioned case Mahabir Baitha Vs. Emperor, added:

It is obvious that there must be oases where some preliminary enquiry, in the course of which an accused''s statement is desirable, must be held. For instance, in the case of a public servant, obviouly it would be unreasonable that in every case of accusation one should be liable to be dragged to Court on a summons without having opportunity of giving an explanation as to the facts alleged against him.

In the present case, the Magistrate had good reason to look into the case of the persons accused by the petitioner before summoning them, because the accusation arose out of the facts of a Sub-Inspector of Police who had previously submitted a report u/s 144, Criminal P.C., regarding some land claimed by the petitioner on the one hand and Lakhan Ram, one of the accused, on the other. A proceeding u/s 148, Criminal P.C., had followed, and while it was pending a dafadar had informed the thana how he had seen ''the petitioner go upon the disputed land with armed men; and upon this the Sub-Inspector had gone to the locality and arrested the petitioner u/s 151, Criminal P.C.

The offences complained of by the petitioner were subsequent to this and were imputed to the Sub-Inspector and the dafadar no less than to the other party to the Section 145, proceeding, and imputed by means of a belated complaint. To have issued summonses against the Sub-Inspector and the other accused without an enquiry such as would give some idea of what really happened would in the circumstances have hardly been wise.

As a matter of fact the Sub-Divisional Magistrate referred in detail to the materials before him and these were available to him without any special enquiry from the Sub-Inspector and took them to be sufficient for dismissing the complaint u/s 203, Criminal P.C., after observing that it was a "fit case to start proceedings u/s 211, Penal Code," and that he intended "to take cognizance u/s 190(c), Criminal P.C., and hold an enquiry u/s 476, Criminal P.C." This order was quite properly set aside by the Sessions Judge on the ground (among others) that the Magistrate seemed to have taken for truth the allegations of the dafadar at the thana; and a further enquiry was directed. The Magistrate erroneously took this to mean a further "judicial" inquiry, and after noting that he was going to hold a preliminary enquiry u/s 476, Criminal P.C., into the truth or falsity of this complaint, called upon the petitioner to produce his witnesses for the date fixed or submit a list of witnesses to be summoned for that date. Then came an enquiry in the course of which the petitioner''s witnesses were examined and cross-examined, and witnesses examined on behalf of the other side. This procedure was objected to by the petitioner, but the Magistrate said that he knew of no section in the Criminal Procedure Code which envisaged such a restriction on the rights of the accused that his witnesses may not be examined in a preliminary enquiry.

How far the learned Magistrate was aware of Appa Rao Mudaliar Vs. Janakiammal, , the Full Bench decision already referred to, does not appear; but in any case the question was one not so much of any specific prohibition to be found in the Criminal Procedure Code as of the procedure intended by Section 202. As was observed by Sharfuddin and Cox JJ., in Bhim Lal Sah v. Emperor (13) 40 Cal. 444, a case in which a complaint was dismissed u/s 203 after a similar inquiry and the complainant was proceeded against u/s 211, Penal Code:

We do not suppose that Magistrates have so little to do that they prefer trying oases twice over, and it is difficult to avoid a feeling of uneasiness lest the object of the practice may not be to harass complainants and deter them seeking relief in the Criminal Courts.

To allow the accused to appear in inquiries u/s 202 is as a rule not to be countenanced for a number of reasons. The decisions show how it is apt to be unfair to the accused, no less than to the complainant, and further, unfair to the Magistrate himself in implying that he has time to try cases twice over. Turning to another point, I take it that the learned Magistrate was under the impression that the preliminary inquiry u/s 476, Criminal P.C., into the truth or falsity of this complaint that he was going to make was compliance with the "judicial enquiry" that he took the Sessions Judge to have ordered, for, I can hardly suppose that he was determined to go his own way irrespective of the orders of superior authority.

The result was a very elaborate inquiry going beyond a rehearsal (and an unnecessary one at that) of the trial that the complainant would have been entitled to if his story could have been believed prima facie. But in the circumstances of the case the petitioner was not entitled to have the persons accused by him summoned straightway, nor was the Magistrate precluded in law from hearing the other side.

The danger of accepting the defence before knowing what the full prosecution was and this is the danger on which Wallace, J. laid stress in P. Varadarajulu Naidu Vs. P. Kuppuswami Naidu, (already referred to) was avoided by an inquiry which was so full that when the Magistrate''s fresh order of dismissal of the petitioner''s complaint was challenged before the Sessions Judge, the petitioner''s pleader was not able seriously to argue that the petitioner had been prevented by the Magistrate from adducing any evidence, either oral or documentary, nor was such an allegation to be found in the thirty grounds taken in the revisional application made on that occasion. No such ground has been taken in the application to this Court either; and all that Mr. Varma has been able to urge is that the order of dismissal is bad and should be set aside, because the procedure followed by the Magistrate is open to the objections that were given effect to in such cases as those in Bhim Lal Sah v. Emperor (13) 40 Cal. 444 and Appa Rao Mudaliar Vs. Janakiammal, (already referred to). But the order of dismissal cannot be set aside merely because the Magistrate adopted a procedure which is to be deprecated; and as shown by the learned Sessions Judge, no further inquiry is in the circumstances of this case required in the interests of justice. Nothing remains to be elicited in support of the petitioner''s complaint. The order of dismissal became all the more important because it was the precursor of a prosecution of the petitioner himself.

But I understand that the Magistrate''s decision to prosecute the petitioner has been the subject of an appeal to the Sessions Judge, and that the appeal has been allowed and the Magistrate directed to look into the matter afresh. That is the right stage for considering the expediency of prosecuting the petitioner.

The failure of a complainant to prove his case may result in the dismissal of his complaint, or at later stages in the discharge or acquittal of the accused; but it will not by itself warrant his prosecution for bringing a false case. The distinction is apt to be lost sight of if proceedings u/s 476, Criminal P.C., are mixed up with an inquiry u/s 202, Criminal P.C. But when the complaint has been disposed of, it should be easy enough to deal with the question that arises u/s 476. Apart from this aspect of the matter, I cannot see that there will be any point in setting the dismissal of the petitioner''s complaint aside and ordering a fresh inquiry.

The application in revision is dismissed.