Makool Khan vs State of Rajasthan and Others

Shiv Kumar Sharma, J.—The main and clinching issue springing for determination is whether it was open to the committal Magistrate to launch on a process of meticulous examination of the, evidence adduced by the complainant under Sections 200 and 202, Cr.P.C, if the case is triable by a Court of session?

This issue arises in the following circumstances-

(i) An FIR was instituted by the complainant petitioner (for short the complainant with the Police Station Ramgarh, Distt. Al war against the accused non-petitioners Nos. 2 to 4 along with Fateh Singh and Mangtu Ram (Fateh Singh and Mangtu Ram died during pendency of the proceedings) for offences under Sections 447, 147, 149 and 436,1PC. After usual investigation the police laid final report. The complainant submitted protest petition and examined himself and his witnesses under Sections 200 and 202, Cr.P.C. Learned Court of Additional Chief Judicial Magistrate No. 2, Alwar vide its Orderer dated October 26, 1991 dismissed the petition and accepted the final report on the ground'' that witnesses named in the FIR were not produced''by the complainant, it was also observed by the learned Magistrate that the complainant in his statement u/s 200, Cr.P.C. did not namo. those witnesses who were named in the FIR. Therefore, the introduction of witnesses in the statement u/s 200, Cr.P.C. is an afterthought. It was further observed in the Orderer that accused Fateh Singh had already instituted FIR No. 148/89 under Sections 147, 148, 149, 447, 436, 323, 324 and 307, IPC against the complainant and the witnesses who were examined u/s 202, Cr.P.C. Evidently, these witnesses gave false statements in Orderer to save, themselves from the cross case. Therefore cognizance could not have been taken against the accused persons.

(ii) Complainant assailed the Orderer of the Magistrate by filing revision. Learned Court of Additional Sessions Judge No. 3, Alwar vide its Orderer dated January 21, 1998 dismissed the revision petition and confirmed the Orderer of Additional Chief Judicial Magistrate No. 2, Alwar.

(iii) Powers u/s 482, Cr.P.C. have been invoked by the complainant seeking quashing of the Orderers of ACJM No. 2, Alwar and Additional Sessions Judge No. 3, Alwar.

Mr. S.R. Bajwa, learned Senior Counsel appearing for the complainant vehemently canvassed that offence u/s 436, IPC is exclusively triable by Court of Sessions and it was obligatory for the ACJM to send the case for trial to the Court of session. The evidence was not required to be meticulously examined. Reliance was placed on AIR 1986 SC 1780 and Nunaram and Others Vs. State of Rajasthan and Another, 4. On the other hand Mr. M.L. Goyal, learned Public Prosecutor and Mr. S.S. Sunda, learned counsel for the accused supported the impugned Orderers and placed reliance on 1994 Cri LR (Raj) 640 and Roshan Lal Vs. P. Hemchandran,

I have reflected over the rival submissions and carefully perused the impugned Orderers.

In the case on hand after perusing the Orderer of learned ACJM, I find that the learned Magistrate acted as if he were a trial Magistrate and for his prim a facie satisfaction he has gone into merits and launched on a process of meticulous examination of the evidence adduced by the complainant. Learned Additional Sessions Judge also launched on a similar proceSection

This Court in Nunaram and Others Vs. State of Rajasthan and Another, had occasion to deal in similar situation. After discussing various judicial pronounce- ments of the Apex Court, it was indicated thus (para 20)-

In this behalf, suffice is to lend support from the decision in Kewal Krishan Vs. Suraj Bhan and Another, At the stage of Sections 203 and 204, Cr. P. C. in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recOrdered during the preliminary inquiry under Sections 200 and 202, Cr. P. C. there is prima facie evidence in support of the allegations made against the accused; and whether or not there is sufficient ground for proceeding againsi the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial Magistrate/Judge. Even, the Magistrate is debarred from scrutinising the evidence because the standard to be adopted by him in doing so is not the same as the one which is to be kept in view at the stage of framing charges. The stage of framing charges in a case exclusively triable by the Court of Sessions arises within the competence of the Court of Sessions and not the Magistrate before whom the complainant or police report is filed. That apart, as held in State of Bihar Vs. Ramesh Singh, even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. Moreover, Section 209, Cr. P. C. itself dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. In my considered view, in such cases the preliminary inquiry by the Magistrate is restricted to find out whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused. The Magi strate before whom any complaint or pol ice report is filed, lacks inherentjurisdiction to launch on a process of satisfying himself that a prima facie case has been made out on Ihe merits. Thus if the Magistrate is allowed to go into the merits even for a prima facie satisfaction, it would be an act to frustrate the Parliament''s purpose in remoulding Section 207-A (old Code) into its present non-discretionary shape. Thus, by change in the scheme under the new Code, the scope of preliminary inquiry by the Magistrate before whom the police report or complaint is filed, has been made subject to narrow inspection through which he (Committing Magistrate) has only to look at the case merely to ascertain whether the case, as disclosed by the police report or the complaint appears to him to show an offence triable solely by the Court of Session. I lend the view from the decision in Sanjay Gandhi Vs. Union of India (UOI) and Others, In this view of the matter, it is not open to the subOrderinate Magistrate before whom the complaint or police report is filed to launch on a process of satisfying that a prima facie case has been made out on the merits, if the case is triable by the Court of Session.

Gayatri v. State of Rajasthan 1994 Cri LR (Raj) 640 was the case where this Court, while dealing in the petition for anticipatory bail u/s 438 Cr.P.C. held that Magistrate is empowered to take cognizance even in a case triable by the Court of Session as the cognizance is always against the offence and never against the offender.

Roshan Lal Vs. P. Hemchandran, was a case where police submitted the final report. Thereafter a complaint was filed and statements under Sections 200 and 202, Cr. P. C. were recOrdered. The Magistrate was not satisfied and again directed police to make further investigation. The said Orderer was assailed. This Court held that on his subjective satisfaction the Magistrate will take cognizance. It was a case under Sections 341,342,349,323,504, IPC and Section 3 of SC/ST (Prevention of Atrocities) Act.

The cases Gayatri v. State of Raj 1994 Cri LR (Raj) 640 (supra) and Roshan Lal Vs. P. Hemchandran, are distinguishable and are not applicable to the case on hand. In a case triable by Court of Session, learned Magistrate was not expected to weigh the evidence meticulously as if he were the trial Magistrate. The preliminary inquiry by the Magistrate in Sessions triable cases, is restricted to find out whether or not the evidence collected in the said inquiry disclose sufficient grounds for proceeding against the accused to commit him for trial. The Magistrate lacks inherent jurisdiction to launch on a process of satisfying himself that a prima faice case is made out on merits.

Learned ACJM and Additional Sessions Judge in my considered view committed illegality in launching on a process of meticulous examination of evidence.

Resultantly, the petition succeeds and is hereby allowed. The impugned Orderers stand set aside and the case is remitted back to the learned ACJM for passing a fresh Orderer in view of observations indicated hereinabove. Parties are directed to appear before the learned Magistrate on May 12, 1998.