Kailash Chandra Batham vs Gangaram Singh

S K. Dubey, J.

This is a petition u/s 482 of the Code of Criminal Procedure for quashing of the proceedings, initiated on a complaint filed by the non-petitioner against the petitioner under Sections 34(sic),. 323, 324, 325, 294, 500 and 506 (B), IPC, in the Court of Judicial Magistrate, First Class, Jaura, District Morena.

After holding an inquiry, under Sections 200 and 202, Cr. P.C., the learned Magistrate on being satisfied that there is sufficient ground for proceeding with the case, took the cognizance on the complaint of the offences on 23-11-1987 and issued process u/s 204 Cr. P. C against the accused/pet tioner for his attendance in the Court

The petitioner after service, appeared and raised an objection u/s 197, Cr. P. C The trial Court rejected the objection on 6-9-1989 observing that the acts committed by the petitioner do not fall within the ambit of discharge of his official duties, hence, the previous sanction of the State Government as required u/s 197, Cr. P. C., prior to taking of cognizance was not necessary. Against this order, the petitioner preferred a revision which was also dismissed on 17-1-1991. Aggrieved of that, the petitioner has approached this Court for invoking the inherent jurisdiction u/s 482 Cr P. C. contending that the petitioner has been falsely implicated; there was no criminality; nor the petitioner committed any act alleged, the prosecution is frivolous and vexatious or appressive, which should not be allowed to continue in the interest of justice.

Shri M. K. Shrivastava, counsel for the petitioner did not press the bar of Section 197, Cr. P. C., submitting that he seeks liberty to raise the same at appropriate stage. For quashing the proceedings, Shri Shrivastava took the Court through the averments contained in paras 1 and 2 of the complaint and submitted that one Baikunthi Bai, an issueless widow, is having some agricultural land, which the non-petitioner wanted to grab and hence, by presenting another woman, impersonating herself to be Baikunthi Bai obtained ''Bhu-Adhikar Avam Rin Pustika'' so that woman may execute the sale deed. This matter was reported on 7-11-1987 and as their was a likalihood of breach of peace, hence, to maintain peace and tranquility, the petitioner arrested the non petitioner on 8-11-1987 and Sections 15, 107 and 116 (iii), Cr. P. C. On the same day the petitioner got medically examined the non-petitioner/complainant and his son, thereafter, he was produced on 8-11-1987 before the SDM, where the non-petitioner was released on furnishing the jail bonds in the sum of Rs. 5000/-. Hence, the allegations in the complaint are false, the petitioner did not commit any act as alleged, in the complaint, the complaint is in the nature of abuse of process of the Court, therefore, in the ends of justice, the process and the proceedings be quashed. Reliance was placed on Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, Sher Singh v. State of M. P 1989 MPJR HC 22 (FB), Jugal Kishore & Others v. State of M. P. 1990 JLJ 252, Vinod Doshi v. State of M.P. 1990 MPJR SN 702, Satya Prakash Chowdhary v. State of M. P. 1990 MPJR SN 32, Trichi Nopoly Ramaswami Archanani v. Kripa Shankar Bhargava 1990 MPJR SN 39, B. P Rom v. State of M. P. 1900 MPJR SN 40. Abdul Rauf khan & 19 others v. Dr Majid Hussain. 1990 MPJR 106.

After hearing counsel at length, I am of opinion that this petition has no merit. At stage of issue of process the defence of the accused cannot be considered. The law is well-settled that the Court, at the stage of taking cognizance, for the question whether any process has to be issued or not, what the Magistrate has to be satisfied, is whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. As stated in sub-section (1) of S. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, hut the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by the persons examined at the instance of the complainant The object of an enquiry, u/s 202, Cr, P. C. is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting u/s 203. Cr. P. C., has to satisfy himself that there is sufficient ground for proceeding in order to come to this conclusion, be is entitled to consider the evidence taken by him or recorded in an enquiry u/s 202, Cr. P. C. or the statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. Where there is prima facie evidence, even though the accused may have a defence, that matter has to be left to be decided at the appropriate forum at the appropriate stage and issue of process cannot be refused. See Chandra Deo Singh Vs. Prokash Chandra Bose and Another,

For quashing of proceeding at the initial stage, the legal position is well-settled, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and whether in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. See Madhavrao Jiwajirao Scindia''s case (supra).

Learned counsel for the petitioner could not point out from the complaint that the allegations of facts made in the complaint do not constitute the offences, or there is no prima facie case, or there is no possibility of conviction at all as the case stands, without considering the defence of the accused or the dispute is of civil nature, or the prosecution is with an oblique motive to harass the petitioner/accused. Therefore, the decisions relied upon are of no help to the petitioner, and the facts are also not such, which warrant exercise of powers u/s 482 Cr. P. C.

However, as it is a warrant case, instituted otherwise than on a police report, the trial has to proceed in accordance with the procedure contained in Chapter XIX Cr.P.C., the petitioner has to be heard before framing of charge, after the prosecution produces its evidence, as may be produced in support of the prosecution. At that stage, the petitioner shall certainly be at liberty to demonstrate from the records and the evidence adduce that no case against the petitioner/accused is made out which, if unrebutted would warrant his conviction. As the evidence would be recorded in the presence of the petitioner, the petitioner would also be at liberty to bring to the notice of the Court that if there is a case against the petitioner for framing of the charge, the evidence produced shows that the acts were committed in discharge of his official duties, therefore, the cognizance so taken is without the sanction u/s 197, Cr. P.C., hence the complaint be dismissed. At that stage, the complainant will be free, if the objection u/s 197, Cr. P. C., is raised, to submit that the acts committed by the petitioner did not fall within the ambit of his official duties.

In the result, the petition is dismissed with the observations, stated above. Records be sent back immediately, alongwith a copy of this order to the trial Court, so as to proceed with the case. The parties shall appear before the trial Court on 5th of March, 1992.