Mushari Ram Manhari vs Raj Kishore Lal

Jwala Prasad, J.—This is an application against the order of the Sessions Judge of Monghyr, dated the 12th November 1917, upholding an order of the Deputy Magistrate of that District, dated the 31st August 1917, dismissing the complaint of the petitioner u/s 203, Criminal Procedure Code. The grounds urged in support of the petition are as follows:--

Firstly, that the Magistrate should not have postponed the issue of process against the accused and held the enquiry u/s 202 of the Criminal Procedure Code without recording his reasons for distrusting the complaint of the petitioner.

Secondly, that the Magistrate acted illegally in allowing the accused to be present during the enquiry and to be represented by Counsel in order to examine the prosecution witnesses and also in examining defence witnesses. The complaint was lodged in the Court of the Magistrate in charge, Mr. A. Majid, on the 18th August 1917 and was made over to N.S.E. Hussain for disposal, with a suggestion that a local enquiry should be quickly made under Government Standing Order, as the complaint was against Police Officers. On the 14th August 1917, Mr. Hossain examined the complainant on oath and passed the following order:--"I will hold a local enquiry on the 16th instant. Send a copy of the complaint to the S.P. for the needful".

It is contended by the learned Government Advocate that this amounts to a recording of reasons for not issuing process against the accused, as the Magistrate thought in his mind that a local enquiry was necessary in order to satisfy himself as to the necessity of issuing any process. Reading the above order regarding the holding of the local enquiry in conjunction with the order of the Magistrate in charge of the 13th August suggesting a local enquiry to be made, it appears to me that the Deputy Magistrate acted upon the suggestion offered to him and not because he distrusted the complaint of the petitioner. I do not think that in the circumstances of the case he exercised any judgment in the matter and held upon a consideration of the complaint and the statement made on oath by the petitioner that it was a case in which process against the accused ought not to issue. It was to my mind an automatic order made by him. This no doubt is a contravention of the requirements of section 202, which is imperative in requiring the Magistrate to give reasons before postponing the issue of process. The point is so well settled that I need hardly quote authorities in support of it.

The second point urged by the learned Counsel for the petitioner also appears to be well founded. It is not at all right for the Court that in a judicial enquiry, before a process has been issued against the accused u/s 204, Criminal Procedure Code, the accused should be required to attend at a preliminary enquiry and to cross-examine the prosecution witnesses. So far as the accused is concerned, it is clear that it is unfair to call upon him to appear and to undergo the trouble and expense of conducting the case, unless the Magistrate had found upon the complaint in the enquiry made by him that there was a prima facie case and that he should be summoned as an accused in the case. And what is true as to the accused is also true so far as the complainant is concerned. It was pointed out in the case of Emperor Vs. Bhika Hossein, that there is no justification to call upon the accused to be present at a judicial enquiry u/s 202. It was observed as follows:--"Now that would be as unfair to the complainant as the converse procedure would he to the accused." There can be no manner of doubt that the procedure adopted by the Magistrate was unwarranted by the Code. In this matter also it appears to me that the Magistrate was misled by the wrong interpretation of the meaning of the Government Circular regarding investigation into a complaint made against Police Officers of certain grades. I agree with what has been said in the ruling quoted above regarding the Government Circular at page 887 that it was never intended that the Circular was in any way to affect the procedure prescribed by the Code of Criminal Procedure. I, therefore, agree with the contention of the learned Counsel for the petitioner that the procedure adopted by the Magistrate was against the procedure prescribed by law.

The question then arises, whether it is a case in which this Court should interfere in revision and set aside the order of dismissal passed by the Magistrate and direct a fresh enquiry into the complaint of the petitioner. Both the errors complained of relate to the procedure adopted by the Magistrate in ordering and conducting the enquiry before him u/s 202. It is a well-settled principle of law that errors of procedure would not vitiate the proceeding or order passed therein unless it has occasioned failure of justice. In the present case on behalf of the prosecution witnesses, numbering about 10, were examined by the Magistrate and no complaint has been made by the learned Counsel for the petitioner before me that any evidence on behalf of the prosecution was shut out. The learned Sessions Judge has carefully considered the evidence in the case and has written a lengthy judgment consisting of over three typed pages. He has also left out of consideration the evidence adduced by the defence in the case and on a consideration entirely of the evidence offered by the complainant has come to the conclusion that the complainant has failed to make out any case against the accused. The case has, therefore, been considered on merits and I do not think that the petitioner was in any way prejudiced on account of the errors referred to above. The principle enunciated in the case of In the matter of Turibullah 4 C.L.R. 338 appears to me to apply to this case. None of the cases referred to on behalf of the petitioner shows that all the evidence on behalf of the prosecution was taken by the Magistrate and the case was disposed of on a full consideration of the evidence. I therefore, reject the application.