Mahidhar and Others vs State of U.P. and Another

Rajeshwar Singh, J.—This is an application u/s 482 Code of Criminal Procedure.

The facts are that one complaint was filed under Sections 379 and 427 IPC. The learned Magistrate recorded statements under Sections 200 and 202 Code of Criminal Procedure. These statements disclosed commission of an offence but after making some discussion the learned Magistrate dismissed the complaint u/s 203 Code of Criminal Procedure. The complainant went in revision to the Sessions Court. The Sessions Court observed:

I am of the view that the learned Magistrate ought to have decided the question of summoning the accused persons only on the available evidence whether it was sufficient to summon the accused persons. The mandate of the law u/s 202 does not necessarily imply that the unassailed testimony of the witness should not be taken into consideration and should be discarded on the mere flimsy grounds on the grounds that would have been taken subsequently only when the accused persons could have been tried.

The Sessions Court then ordered:

The application in revision is allowed. The order dated 2-12-86 is and shall make further inquiry in this connection.

When the matter went to the learned Magistrate he passed an order that he perused the evidence on record in the light of the judgment passed in revision and he summoned the accused persons. Against this order the accused filed a revision. That has been dismissed and now the accused have approached this Court through this application u/s 482 Code of Criminal Procedure praying that order summoning them and order of Sessions Court be quashed.

The only argument of the applicants is that the Sessions Court ordered further inquiry and directed the Magistrate to proceed afresh; so the Magistrate could not summon the accused on the same evidence without recording further evidence.

In fact the learned Sessions Court has passed order u/s 398 Code of Criminal Procedure. It merely directs that the Sessions Judge may direct further inquiry into any complaint. It does not say that afresh inquiry should be directed. I have reproduced above the observations made by the learned Sessions Judge in his judgment before passing the order. There too the Sessions Judge said that the learned Magistrate should have decided the question of summoning the accused persons only on the available evidence and it was not necessary to reject unassailed testimony of the witness and it should have been taken into consideration So it appears that the intention of the Sessions Judge was only to order further inquiry.

However, the argument of the applicant is that further inquiry means that further evidence should have been taken. The meaning of the word ''inqury'' according to Chambers 20th Century Dictionary is "to make an examination." "Then the order of further inquiry only means to examine further. So the Magistrate could have made further examination of the evidence that was on record in the light of the judgment of the Sessions Court and it was not necessary that further evidence should have been recorded. Further inquiry is not restricted to the mere taking of further evidence. It includes consideration of that evidence which is already on record. Where no additional evidence is forthcoming a rehearing or re-consideration of the same materials which are on the record will suffice. If it is held otherwise a difficult position will arise. Suppose a complainant has given all evidence that he could in a case and the Magistrate has dismissed the complaint; the matter goes to Sessions Judge in revision and he directs further inquiry. The matter comes before the Magistrate and the complainant does not give any further evidence because he had given all his evidence earlier. In such a case there will remain no option but to dismiss the complaint again, if further inquiry is taken to mean taking of further evidence. This will cause injustice and the judgment passed in revision will be of no assistance. So an order for further inquiry does not make it obligatory to proceed again u/s 202 Code of Criminal Procedure but the Magistrate may issue process. Further inquiry only means re-copsideration. Following extract from the case of Shyamlal Ruia and Another Vs. State and Another, can be quoted with its advantage:

A Magistrate, when directed to hold further inquiry u/s 436 by a Superior Court, is not bound to hold further inquiry u/s 202. The matter came back to him for re-consideration. He can, therefore, hold an inquiry or get an inquiry made u/s 202, if he considers it proper, he can issue process u/s 204 without any inquiry at all.

Therefore, the argument advanced on behalf of the applicants has no force.

The application u/s 482 Code of Criminal Procedure is dismissed.