Kundan Lal vs Tejbir Singh D.S.P., Kaithal

D.S. Tewatia, J.—This revision petition directed against the order of the Sub-Divisional Judicial Magistrate Kaithal, dated 20th January, 1979, declining to summon the respondent, Shri Tejbir Singh, Deputy Superintendent of Police, Kaithal, as an accused.

The petitioner had filed a complaint against the respondent in the Court of the Sub-Divisional Judicial Magistrate, Kaithal, under sections 166, 217, 323, 504 and 506, Indian Penal Code. It is unnecessary to go into the details of the complaint and suffice to mention that the complainant has alleged in the complaint that the respondent had given flaps, first and kick blows and abuses in fifthly language, when he alongwith his advocate Shri Randhir Singh Sathi, Ami Lal and Jarnail Singh approached the respondent for enquiring as to what had happened to his application u/s 145. Criminal Procedure Code, submitted to the Executive Magistrate, Kaithal, who had marked the same to the Station House Officer. Police Station, Guhla, for report, and the latter bad forwarded the same to the respondent for countersigning, who in turn sent it back for seeking Kalendra from the Station House Officer. Police Station, Guhla.

The respondent is said to have annoyed with the complainant on account of his having met in deputation the Chief Minister against the Station House Officer, Police Station. Guhla, and the Chief Minister having ordered an enquiry against the Station House Officer.

In support of the complaint, the complainant gave evidence as P.W. 1, besides examining Jarnail Singh, Ami Lal and Randhit Singh advocate as his witnesses.

From the perusal of the order of this learned Magistrate, it is clear that he has appreciated the evidence in a manner which is permissible only when he had to finally decide as to whether the evidence was sufficient to warrant conviction.

It is by now well settled as to what approach has to be adopted by the trial Magistrate for judging as to whether sufficient grounds exist for summoning an accused or not. In Chandra Deo Singh Vs. Prokash Chandra Bose and Another, , it has been held that where there was prima facie evidence, even though an accused might have a defence that the offence was committed by some other person or persons, the matter had to be left to be decided by the appropriate foram at the appropriate stage and issue of process could not be refused. It was also further enunciated in the judgment that what the Magistrate had to he satisfied with was whether there was a sufficient ground for proceedings Whether the evidence was adequate for supporting the conviction, could be determined only at the trial and not at the stage of enquiry. These very views have been reiterated by their Lordships in subsequent judgments while dealing with the test that has to be applied by the trial Court at the stage of framing of charge a stage which can be considered almost a second step in the trial a step further in the trial than the first step in a complaint case where the Court has to see as to whether there is sufficient evidence to summon the accused or not. In State of Bihar Vs. Ramesh Singh, , Untwalia, J., speaking for the Court, put the test in the following words :

If the scales of pan as to guilty or innocence of the accused are something like even at the conclusion of the trial, then on the theory of benefit of doubt, the case is to end in the acquittal. But if on the other hand, it is so at the initial stage of making an order u/s 227 or section 218 (Criminal Procedure Code), then in such a situation ordinarily and generally the order which will have to be made will be one u/s 223 and not u/s 227.........

In Union of India v. Prafulla Kumar Samal etc. 1979 Guj. J.L. 35 Fazal Ali, J. of the Supreme Court while observing that the power u/s 227 is not a mere post office to frame the charge at the behest of the prosecution nevertheless went to restate the view that whereas strong suspicion might not take the place of the proof at the trial state, yet it might be sufficient for the satisfaction of the trial Judge in order to frame a charge against the accused.

Sarkaria, J. in Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, , ennunciated the law thus :

The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptile opinion as to the existence of the factual ingredients constituting the offence alleged ; may justify the framing of charge against the accused in respect of the commission of that offence.

Mr. Naubat Singh Learned Counsel for the respondent, however, urged, on the strength of the following observations of Fazal Ali. J., who delivered the opinion for the Bench in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, :

The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused......

that once the Magistrate has exercised his discretion, it cannot be interferred with by any Court.

That was a case in which the Magistrate had issued process and had summoned the accused. High Court allowed the revision and set aside the order of the Magistrate. Against that order of the High Court, special leave was granted by the Supreme Court. The High Court, while setting aside the order of the Magistrate, appreciated the evidence in a manner which was not permissible at the stage where the process was to be issued and it was in that context that their Lordships observed that at the stage of issuing of process the Court is not to weigh the evidence to assure itself as to whether it is sufficient to warrant conviction. The Magistrate having exercised discretion, the same could not be interfered with by a Superior Court by weighing the evidence as if it was judging whether the conviction could be warranted on the basis of the evidence that was before the Magistrate.

The Court, however, has to see whether the Magistrate has not fallen into that error which, according to their Lordships, the High Court had fallen in that case while setting aside the order of the Magistrate. In the present case, it may be observed that the learned Magistrate weighed the evidence adduced by the complainant in order to judge as to whether it was sufficient to warrant conviction, though after so appreciating the evidence he merely concluded that the complainant had failed to establish a prima facie case against the accused.

Mr. Naubat Singh lastly urged that the Court could not take cognizance of the complaint in the absence of sanction in terms of section 197(1). Criminal Procedure Code.

In my opinion, it is no part of the duty of any person placed '' in the position of the respondent or any such public servant to abuse and give beating to a respectable citizen who approaches him for wanting some information or with some grievance and, therefore, it cannot be said that when such an authority gives beating to such a person, it does so while acting or purporting to act in the discharge of his official duty.

For the reasons aforementioned, the impugned order is set aside and the learned Magistrate is directed to summon the respondent in the case and also deal with the same expeditiously.