Krishan Murari and Another vs Mohinder Pal

D.B. Lal, J.—This petition u/s 482 of the Code of Criminal Procedure has come up before us in an order of reference made by the learned Judge on August 9, 1977, when this case was put up before him as in his opinion an important question of law was involved which required decision by a larger Bench. Facts giving rise to the petition are as under:

Kamla Rani filed a complaint against her husband Mangat Ram, his brother Mohinder Pal, and a few others. That complaint was inter alia under Sections 494/109 of the Indian Penal Code and the major allegation against Mangat Ram was that with the assistance of Mohinder Pal and others, he performed a second marriage.

It appears that during the pendency of that complaint Mohinder Pal, Respondent before us, filed a complaint before the Magistrate for defamation u/s 500 Indian Penal Code and the accused were only two Krishan Murari and Biru Mal and it was asserted in the complaint that these persons along with others disreputed Mohinder Pal inasmuch as they were instrumental in the filing of the complaint by Kamla Rani on false allegations. Subsequently Kamla Rani died and the prior complaint filed by her was rendered infructuous. It would also be pertinent to mention at this stage, that the Respondent Mohinder Pal brought the matter before the High Court in a petition u/s 482 of the Code of Criminal Procedure and his prosecution in that complaint was quashed. It was held by this Court that no offence was committed by Mohinder Pal and as such he was exonerated of the offences alleged by Kamla Rani. While the learned Magistrate was considering the complaint filed by Mohinder Pal, obviously he recorded the statement of Mohinder Pal u/s 200 of the Code of Criminal Procedure and also recorded the preliminary evidence produced by Mohinder Pal. After hearing the arguments and considering that evidence, he made the impugned order of summoning the present Petitioners. Against that order of the learned Magistrate passed u/s 204 of the Code of Criminal Procedure that the present petition u/s 482 of the Code is filed.

Before adverting to the facts relating to this case, it may be necessary to point out the statutory provisions under which the learned Magistrate was required to make the order. In that connection reference is made to Chapter XV of the Code of Criminal Procedure. u/s 200 the Magistrate taking cognizance upon a complaint has to examine upon oath the complainant. u/s 202 if the Magistrate decides to postpone the issue of process he can direct an enquiry or investigation and wait for the report. Meanwhile, if the complainant wants to adduce his witnesses, these witnesses have to be examined u/s 200 of the Code. Section 203 of the Code runs in the following terms:

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.

Section 204 of the Code, deals with the issue of process and the opening words of that Section are as below:

If in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, and the case appears to be--

* * * *

meaning thereby that if the Magistrate taking cognizance formulates his opinion that there is a sufficient ground for proceeding, he has to issue summons or warrant as the case may be.

The learned Counsel during the course of arguments relied upon R.H. Bhutani v. Miss Mani J. Desai and Ors. 1968 (1) Cr. AR SC 223. Since that case dealt with the requirements for a preliminary order u/s 145(1), a reference need also be made to that provision in the Code. Section 145(1) is in the following terms:

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, on a specified date and time, and to put in written statement of their respective claim as respects the fact of actual possession of the subject of dispute.

(2) * * * *."

Shri R.L. Garg, the learned Counsel for the Petitioners contended before us that the order of the learned Magistrate suffers from two defects (a) that it is not a speaking order and hence the same is without jurisdiction; and (b) that even otherwise the order has resulted in the abuse of process of the Court and does not secure the ends of justice. As such according to the learned Counsel the order is amenable to the jurisdiction of the High Court u/s 482 of the Code.

The controversy as to whether the impugned order would be barred for revision u/s 397(2) of the Code being interlocutory or otherwise, is in our opinion settled by the two decisions of the Supreme Court, of which the reports are Amar Nath and Others Vs. State of Haryana and Another, , and Madhu Limaye Vs. The State of Maharashtra, In Amar Nath and Ors. (supra) their Lordships were considering whether an interlocutory order for which a revision is barred u/s 397(2) was still open to question, u/s 482 of the Code. It was held that the power u/s 482 will not be exercised to defeat the bar on revision placed u/s 397(2). However, their Lordships held that the term "interlocutory order" u/s 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch important rights or the liabilities of the parties. Any order which substantially affects the right of the accused or decides certain rights of the parties cannot be said to be interlocutory order so as to bar a revision to the High Court against that order. Their Lordships further held that orders summoning the witnesses, adjourning the cases, passing orders of bail, calling for reports and such other steps in aid of the pending proceedings may be classified as interlocutory order. Since they were considering the case in which the Magistrate passed an order for summoning the accused for an offence, it was held that the order was not interlocutory and as such amenable to revision despite the bar u/s 397(2) of the Code. The decision came up for review before the Supreme Court in Madhu Limaye''s case (supra) and while holding that the orders summoning the accused may not be interlocutory, their Lordships expressed some doubt as to the correctness of the decision in Amar Nath and others'' case (supra) on the question, as to whether the interlocutory order, although not open to revision u/s 397(2) of the Code, was still questionable u/s 482. The following observations of their Lordships make the position clear:

On a plain reading of Section 482, however, it would follow that nothing in the Code. which would include Sub-section (2) of Section 397 also "shall be deemed to limit or affect the inherent powers of the High Court". The bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction.

It was, therefore, doubted if Amar Nath and others'' case (supra) "was correctly decided". The ratio of these two judgments makes the position clear inasmuch as the present order of the Magistrate summoning the accused will not be held to be interlocutory and as such the bar of revision found in Section 397(2) may not be available. At the same time it can be held that the order of the Magistrate would be amenable to the jurisdiction of the High Court u/s 482 provided the conditions laid down therein are satisfied.

We shall then come straight to the argument of Shri R. L. Garg, inasmuch as he contended that the order of the Magistrate is illegal, on the two grounds specified above, namely that the order is riot a speaking one and hence without jurisdiction and that it can be questioned u/s 482 even though its legality or propriety can be questioned in a revision before the High Court. In order to appreciate the contentions, the order of the Magistrate may be produced as below:

Present: Complainant with Shri Gian Chand Counsel. Order:

Heard. I have perused the preliminary evidence and the allegations in the complaint. There are grounds to proceed against the accused u/s 500 I.P.C. The accused be summoned to face trial for 6th May, 1977.

7-4-1977.

Sd/-

J.M.I.C. Sunam.

It is thus manifest that the Magistrate heard the counsel for the complainant. He perused the preliminary evidence recorded by him and also considered the allegations made in the complaint. Thereafter he concluded that there were grounds to proceed against the accused u/s 500 Indian Penal Code and hence he summoned the accused.

Shri A. N. Mittal, the learned Counsel for the complainant-Respondent argued that the order inter alia depicted application of mind by the Magistrate. The order did indicate the material on which he applied his mind. According to the learned Counsel that material is the same which was required to be considered by the Magistrate u/s 203 of the Code. The complainant gave his statement and supported the facts about the offence mentioned in the complaint. He examined witnesses. This was done u/s 200 of the Code. That is why the Magistrate referred to the preliminary-evidence recorded in the case. He obviously considered the allegations made in the complaint. Therefore, the requirement of evidence to be considered u/s 203 was satisfied. He expressed his opinion that there were sufficient grounds for proceeding and as such issued the process u/s 204. The learned Counsel in that connection relied upon Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, . In that case their Lordships were considering an order u/s 204, which was challenged before the High Court u/s 482. While dealing with the plea, whether the order of the Magistrate issuing process could be quashed or set aside, it was observed that one of such cases for quashing would be, where the allegations made in the complaint and the statements of witnesses recorded in support of the same, taken at their face value, made out absolutely no case against the accused. The other case would be where the complaint did not disclose the essential ingredients of the offence which was alleged against the accused. It is contended in the instant case on behalf of the Respondent-complainant that the ellegations made in the complaint, as well as in the statements of the witnesses recorded in support or the same do make out a case against the accused and since the Magistrate applied his mind on that case, and considered the evidence specified in Section 203, the order summoning the accused cannot be considered to be an abuse of the process of the Court, nor can it be branded as illegal order without any merit. Shri R. L. Garg, the learned Counsel for the Petitioners, however, relied on two decisions of this Court, of which the reports are Niranjanlal Bawri v. The State and Anr. 1975 C L R 448. and K.L. Nagpal v. Sat Parkash Jindal and Anr. 1977 CLR P&H 152. In the first case of Niranjanlal Bawri, a learned Judge of this Court was considering the order of the Magistrate passed u/s 204 and held that the order was not a speaking one and did not show application of mind by the Magistrate. On that ground the order was set aside. We are in respectful disagreement with that decision. The order of the Magistrate ran in the following terms:

Present: Complainant with counsel.

This is a complaint u/s 323/504 of the I.P.C. The allegation is that on 14th June, 1974 at Muktsar, the accused caused simple hurt to Sant Lal complainant and also provoked him to commit the breach of peace. He has filed a medical certificate regarding examination of his injuries. The result of the police inquiry supports the case of the complainant. Therefore, sufficient grounds are disclosed to proceed against the accused for offence u/s 323/504 of the I.P.C. Summons be issued to procure presence of the accused on filing of P.F. for 19th October. 1974. A copy of the complaint shall also be sent along with summons.

It is manifest that the aforesaid order of the Magistrate much too indicated, the application of mind and also the material which was germane to the issue before him. He has referred to the allegations made in the complaint as well as to a medical certificate produced before him. He has also made a reference to the police inquiry, and all that evidence was indicated u/s 203. Considering that evidence the Magistrate formulated an opinion to summon the accused. Even then the learned Judge chose to consider that the Magistrate had not applied his mind and set aside the order. K. L. Nagpal''s case (supra) is the other case relied upon by Shri Garg and in that case the decision in Niranjanlal Bawri''s case (supra) was followed.

Shri A. N. Mittal'', learned Counsel for the Respondent referred to R. H. Bhutani''s case (supra). In that case their Lordships of the Supreme Court were considering an order u/s 145(1), which itself indicates that the preliminary order made by the Magistrate has to state grounds of his being satisfied upon police report or upon other information that a dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof within his local jurisdiction. In R. H. Bhutani''s case (supra), a specific argument was raised that the preliminary order written by the Magistrate did not disclose the grounds on which he was satisfied and that was the requirement of the statute. Even then their Lordships held that the order written by the Magistrate need not have mentioned these particulars. It was evident from the language used that the Magistrate applied his mind and on the grounds pleaded before him got the satisfaction that a case existed regarding breach of the peace. The following observation of their Lordships on page 229 of the report makes the position clear:

One of the grounds on which the High Court interfered was that the Magistrate failed to record in his preliminary order the reasons for his satisfaction. The section, no doubt, requires him to record reasons. The Magistrate has expressed his satisfaction on the basis of the facts set out in the application before him and after he had examined the Appellant on oath. That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction.

Shri Mittal contended that in the instant case as well, the learned Magistrate considered the allegations made in the complaint and also the preliminary evidence recorded before him. He also heard the counsel of the complainant and the order besides being speaking one, clearly indicated the application of mind by the Magistrate. Learned Counsel further urged that in R. N. Bhutani''s case (supra), although there was a statutory requirement and the order did not indicate the reasons for his satisfaction, the evidence aliundi was considered sufficent and it was held that the order was valid. In the instant case there was no legal requirement u/s 204 as juxtaposed to the requirement specified in Section 203, that the reasons for summoning should be specified in the order. u/s 203 it is manifest the Magistrate has to record his reasons for discharging the accused. It is so because a blanket is drawn upon the right of the prosecution to proceed and the accused is discharged. But neither it is so expressed in Section 204 that reasons have to be written nor is there any necessity for the same. The Magistrate has merely summoned the accused-Petitioners and the trial is yet to proceed. In our opinion, therefore, the primary concern would be, as to whether the Magistrate has applied his mind. Any mode or form for the order summoning the accused can neither be prescribed, nor would it be desirable to do so. There cannot be any hard and fast rule, as it would depend on the facts and circumstances in an individual case. As long as it is evident from the pattern of the order, that the Magistrate applied his mind upon relevant facts, the requirement of law is satisfied. Any order which is open to judicial review is required to be a speaking order. Similarly the order of the Magistrate summoning the accused has to be Speaking, but to what extent ? In our opinion if the Magistrate has referred to, in his order, the material considered by him, without giving the details thereof and there is indication that he applied his mind on the material, relevant and admissible under the statute, he should be considered to have complied with the requirement of Section 204. Between the two extreme cases, one where the order is laconic or perfunctory, as in it no aspect of evidence is described, Which is always held non-speaking, and the other, where the Magistrate holds a mini trial and discusses the entire evidence, which is always held to be a speaking order, there are a variety of orders, some of which may indicate the evidence considered and mind applied upon such evidence; such orders would nonetheless be held valid u/s 204. We have considered the impugned orders made by the learned Magistrate and in our opinion it is a speaking order and the material laid down by the statute was considered by the Magistrate.

The second contention of Shri R.L. Garg is also devoid of any merit. The learned Counsel contended that u/s 482 of the Code an abuse of the process of the Court can be inferred and a case is made out defeating the ends of justice. We have gone through the complaint and the allegations made therein which in our opinion do spell out prima facie an offence of defamation and the decision in Smt. Nagawwa''s case (supra), would apply in the present case. The other significant feature to be considered is, the discharge of the complainant Mohinder Pal by the High Court, as a result of the revision filed by him before the Court. The order of the High Court definitely indicated that no case was made out against Mohinder Pal with reference to the complaint instituted by Kamla Rani. That was also a factor to be considered prima facie at this stage when these accused are merely summoned to stand their trial. Besides Mohinder Pal examining himself u/s 200, he also produced three witnesses, Sadhu Ram, Kishan Chand and Magh Singh. The learned Magistrate considered all this preliminary evidence, besides going through the allegations made in the complaint. Thereafter he passed the order summoning the accused u/s 204. It cannot be said that any abuse of the process of the Court was committed or ends of justice were defeated in any manner. In our opinion, therefore, a case is not made out for interference u/s 482 of the Code of Criminal Procedure. Similarly it cannot be held that the order of the Magistrate is illegal or improper for interference in exercise of the revisional jurisdiction of the High Court The petition is thus without any merit and the same is dismissed.

D.S. Tewatia, J.

I agree.