Laxman Singh and another vs Ramsewak

G.D. Saxena, J.—By preferring the present petition u/s 482 of Cr.P.C., the petitioners seek quashment of the order dated 1st April 2010 in Cri.Rev.No. 215/2009 passed by the Fourth Additional Sessions Judge Bhind (M.P.) whereunder their revision was dismissed confirming the order of the trial Magistrate dated 21st August 2009 in Criminal Case No. 451/09, taking cognizance and issuing processes against the petitioners. The facts, in short, just for the adjudication of the case are that there was a matrimonial dispute between the daughter of petitioner No. 2, namely, Smt. Mamta and her husband Ram Sewak Narwaria (respondent herein), which resulted in filing complaints by both of them against each other. It is stated that the respondent filed complaint against the petitioners being related to his wife Mamta before the JMFC Mehgaon district Bhind. The trial Magistrate after recording the statement of complainant u/s 200 Cr.P.C and his witnesses u/s 202 Cr.P.C. and upon perusal of the police report, dismissed the complaint u/s 203 of Cr.P.C. The complainant Ram Sewak, being aggrieved by the order of dismissal of JMFC Mehgaon filed the Criminal Revision before the Court of Sessions. The Revisional Court by allowing the revision petition set aside the order of dismissal passed by the trial Magistrate and remanded the criminal complaint for fresh consideration and pass an appropriate order as per law. The trial Magistrate in compliance of the directions of the revisional court heard the complainant and by an order dated 21st August 2009, took cognizance and issued process against the petitioners. Same order was challenged by the accused-petitioners in the instant revision which came to be dismissed by the court vide impugned order dated 1/4/10, hence this petition.

The contention of the learned counsel appearing for the petitioners is that once the trial Magistrate after due consideration on the evidence and recording the statements of the complainant and his witnesses, dismissed the complaint, thereafter at subsequent stage he has no power to review his previous order of dismissal of the complaint. It is submitted that after remanding the complaint for reconsideration on the same set of evidence recorded by the trial Magistrate at earlier point of time, the trial Magistrate can not pass the order of taking cognizance against the accused unless there is noticed any subsequent change in the circumstances. Hence, the finding of the revisional court for remanding the complaint for reconsideration is also against law. In support of his submissions, learned counsel for the petitioners placed reliance on the decision of the Apex Court in the cases of Hari Singh Man Vs. Har Bhajan Singh Bajwa [2001 AIR (SC) 43] and Adalat Prasad Vs. Roop Lal Jindal 2004 (2) SCC Criminal 1927.

Per contra, supporting the order dated 21th August 09 in Complaint Case No.451/09 of the trial Magistrate as well as the order dated 1st April 2010 in Criminal Revision No. 215/2009 of the revisional court, learned counsel appearing for the respondent submitted that previously the complaint of the respondent was dismissed by the trial Magistrate without assigning any reason. Because the trial Magistrate passed the erroneous order, without consideration of the evidence, dismissing complaint of the respondent, the revision was preferred against that order, which was allowed remanding the matter back to the court concerned. It is submitted that upon direction of the revisional court, the trial Magistrate rightly considered the complaint and evidence and thereafter took cognizance of the offence and issued the process against the petitioners. Under such circumstances, it is submitted that the petition of the petitioners is liable to dismissed.

Heard the learned counsel appearing for the parties. Also perused the petition and all the documents filed alongwith the petition and the law applicable to the case at hand.

Section 200 Cr.P.C. contemplates examination of complainant and the witnesses by the Magistrate while taking cognizance of an offence on complaint and Section 202 Cr.P.C. contemplates postponement of issue of process against the accused if the Magistrate thinks it fit to inquire into the case by himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding and after such investigation or inquiry, if the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by recording the reasons u/s 203 of the Code. If there is sufficient ground for proceeding, the Magistrate shall take cognizance of offences in any one of the three modes referred to supra and he shall issue process by way of summons u/s 204 of the Code if it is a summons-case or shall issue a warrant if it is a warrant-case and in none of the above stages, the accused is heard. To put in other words, in whatever mode the cognizance of offence is taken by the Magistrate, the process can be issued only u/s 204 of the Code.

In the case of Adalat Prasad (supra) the Hon. Apex court held:-

But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons u/s 204 of the Code. Therefore what is necessary or a condition precedent for issuing process u/s 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated u/s 202 that there is sufficient ground for proceeding with the complaint hence issue the process u/s 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew''s case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under sections 200 and 202, and the only stage of dismissal of the complaint arises u/s 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the Court and making an application for dismissal of the complaint u/s 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code.

In Chandra Deo Singh Vs. Prokash Chandra Bose and Another, the Hon. Apex court held:-

No doubt, one of the objects behind the provisions of S. 202,Cr.P.C is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interest of an absent accused persons, but also with a view to bring to door: a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accessed may have can only be enquired into at the trial. An enquiry under S. 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence.

For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not 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.

"The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the Investigation or inquiry, if any, under S. 202, there is in his Judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing".

The power to dismiss a complaint rests only with a Magistrate who has taken cognizance of it. If before issue of process, he had sent down the complaint to a Magistrate subordinate to him for snaking the enquiry, he has the power to dismiss the complaint, if in his judgment'' there is no sufficient ground for proceeding one of the conditions, however, requisite for doing so is the consideration of the statements on oath if any made by the complainant and the witnesses and of the result of the investigation or the enquiry which he had ordered to be made under S. 202 Cr.P.C. In the case before us, an investigation by a police officer was not ordered by the learned Sub-Divisional Magistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry. It was not open to him to consider in this connection the statements recorded during the investigation by the police on the basis of the first information report lodged by Panchanan Roy or on the basis of any evidence adduced before him during the enquiry arising out of the complaint made by Mahendra Singh. All these were matters extraneous to the proceedings before him. Of course, as we have already stated, the learned Magistrate has not given any reasons for dismissing the complaint and, therefore, we do no know what exactly weighed with him when he dismissed the complaint, but the learned single Judge of the High Court who has dealt with the case elaborately has not kept the evidence adduced in the two complaints separate but appears to have been influenced in deciding one case on the basis of what was stated by the witnesses in the other case. The High Court has relied upon the evidence of Pannalal Saha and Sankar Ghose who ought never to have been examined by enquiring a Magistrate. The High Court has further relied upon the investigation made by the police in the complaint of Panchanan Roy. All this will be clear from the following passage in its judgment

Now, coming back to the factual and legal aspects of the case, it comes to know that the complaint filed by the complainant against the accused-petitioners was at first instance was dismissed by the trial Magistrate. No reasons in brief were recorded by the court. Being aggrieved by the order of the trial Magistrate, a criminal revision petition was preferred which was allowed by the court of Sessions and the complaint was remanded back for reconsideration. Thereafter, the trial Magistrate after hearing the complainant passed the order u/s 204 of Cr.P.C. and issued the process against the accused. The accused being aggrieved by the order of taking cognizance u/s 204 of Cr.P.C. preferred a revision before the Court of Sessions which was dismissed by confirming the order of taking cognizance against the accused.

The main question which arises for consideration in this case is whether under the order of remand by the revisional court and its direction, if the trial Magistrate again considers the evidence recorded under Sections 200 and 202 of Cr.P.C., then such consideration will amount to review of the previous order dismissing complaint u/s 203 of Cr.P.C.

In Kuldip Chand Bhalla Vs. Kamaljit Singh, he High Court of Punjab & Haryana held as under:-

It would be clear that the learned SDJM, Nawanshahr, while dismissing the criminal complaint, had not applied his mind at all to the facts of the case. The learned Magistrate, nowhere had mentioned as to how and in what manner the ingredients were not attracted in this case. Except mentioning that the complainant himself had appeared as PW. 1 and had examined Mitha Ram as PW. 2 in the preliminary evidence, the learned Magistrate, had not referred to the evidence of the complainant while dismissing the criminal complaint. Furthermore, except reproducing the allegations made in the complaint, the learned Magistrate, had nowhere mentioned as to in what manner the offence sunder Ss. 192/423/465/471 read with Ss. 34 and 120B, IPC were not made out in the present case. The order dated 10-5-1999, passed by the learned Magistrate, does not show any application of mind and otherwise is a non-speaking order.

So far as the order dated 9-7-2001, passed by the learned Additional Sessions Judge, is concerned, the criminal complaint filed by the complainant had been dismissed by the learned Magistrate. Still the learned Additional Sessions Judge, had termed the said order of the learned Magistrate, as "interlocutory order". I fail to understand that as to in what manner, the said order of the learned Magistrate was interlocutory and why the revision petition was not maintainable against the order dismissing the criminal complaint. It appears that the learned Additional Sessions Judge, had not applied his mind at all to the facts of the case. It appears that the learned Additional Sessions Judge, had equated the order of summoning passed by the Magistrate in the criminal complaint with an order of dismissal of the criminal complaint passed by the Magistrate. The two cannot be equated. The summoning order may be interlocutory, but the order dismissing the criminal complaint could not be interlocutory. Furthermore, while dismissing the revision petition, the learned Additional Sessions Judge, had observed that the earlier complaint was dismissed by the Court in default and even though the subsequent complaint is maintainable but the earlier complaint should have been relied upon and got attached with the record. This was a ground taken by the learned Additional Sessions Judge, for dismissing the revision petition. A perusal of para 5-A of the criminal complaint would show that the petitioner had made a reference in the complaint that the previous complaint was dismissed in default on 8-12-1997. Whether the previous complaint is attached with the present complaint or not, was the job of the learned Magistrate and the petitioner could not be blamed for the same.

In this view of the matter, in my opinion, the order passed by the learned Additional, Sessions Judge, dismissing the revision petition, is also liable to be set aside especially when it does not show any application of mind.

In view of the above, the present petition is allowed and the orders dated 10-5-1999 and 9-7-2001 passed by the Sub-Divisional Judicial Magistrate, Nawanshahr and the Additional Sessions Judge, are set aside and the case is sent back to the learned Magistrate, for deciding the matter afresh, in accordance with law, after due application of mind.

In Ashok Maheshwari Raj Kamal Prakashan (P) Ltd Vs Dinesh Puranik 2007 Criminal Law Journal (NOC) MP 827, this court held that the revisional court exercising powers under Sections 397/401 of Cr.P.C. can pass an order for registration of the case where the Magistrate has wrongly dismissed the complaint u/s 203 Cr.P.C. and discharged the accused.

In the light of the above discussions, the answer to the question formulated above is that when the order passed by the trial Magistrate does not show any application of mind and otherwise is a non-speaking order, re-consideration by the trial Magistrate under the order of remand by the revisional court is permissible. A perusal of the order assailed herein goes to show that the trial Magistrate while dismissing the complaint did not record reasons u/s 203 of the Code and under such circumstances the complaint was sent back to the court concerned for its afresh consideration in the light of the evidence available on record. Admittedly, the trial Magistrate in the absence of any reviewing power or inherent power, on his own motion or on the request of the accused/complainant, can not pass such an order. Such exercise can be made only under the orders passed by the Revisional court, as held in the case of Kuldip Chand Bhalla (Supra).

The next submission of the learned counsel for the petitioners is that the complaint is filed by the respondent at later stage with an ulterior motive to harass and compel his wife and her close relative to compromise in matrimonial dispute. Whatever defence the accused may have, can only be inquired into at the stage of trial. An inquiry under S. 202 can in no sense be characterized as a trial for the simple reason that in law there can be but one trial for an offence. So, at the preliminary stage of cognizance, neither the trial Magistrate nor the court of revision can consider the defence of the accused. In view of discussions made above, in the opinion of this court, the trial Magistrate had committed no illegality in taking cognizance on a complaint of the respondent and issuing processes against the petitioners/ accused. The petitioners shall have liberty to raise all possible grounds of defence at proper stage of trial. No ground to prevent the abuse of the process of the court or to secure the ends of justice appear from the petition and the documents filed on record. Consequently, the petition filed u/s 482 of Cr.P.C. is bereft of merit. It is accordingly dismissed.