Nageshwar Rao @ Nageshwar Pd. Roy and 4 Others vs The State of Bihar and Another

S.N. Jha, J.—This application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code'') has been filed by the petitioners for quashing the order dated 15.1.81 passed by the Subdivisional Judicial Magistrate, Bettiah, taking cognizance of an offence under sections 147, 148, 149, 323 and 302 of the Indian Penal Code (in short ''the Penal Code'') against the petitioners.'' In order to appreciate the points raised by the learned counsel for the petitioners it is necessary to narrate some facts of the case. A first information report was lodged before Officer In charge of Chautarwa Police station on 16.1.1979 by Nizamuddin, opposite party no. 2, at Patilar Hospital alleging inter alia, that on the preceding night i.e. on 15.1.1979 at about 8 P.M. as usual Akbar Mian (deceased) and one Zahur Mian were sleeping in a hut in his Batai field, all on a sudden 10-15 men armed with lathi, Bhala and Farsa surrounded them and started assaulting. It has further been alleged that the informant in the torch light and in the light of a burning lamp (Dibiya) recognised the leader of the gang, petitioner no. 1, and also petitioner nos. 2, 3 and 5. The informant has claimed to have identified some other persons as well on seeing their faces. It has further been alleged that after being injured the aforesaid Zahur Mian any how escaped and fled towards village but the informant and Akber Mian were surrounded and the accused persons made serious assault on the said Akbar as a result of which he succumbed to his injuries on the way to the hospital. Thereafter, it is said that being informed by Zahur Mian villagers came and the informant and his deceased brothers were taken to the hospital where the aforesaid statement was made, on the basis of which the first information report was lodged. A true copy of the first information report is Annexure-1 appended to this application.

The police after instituting the case took up investigation and examined as many as 14 witnesses including the petitioners and the informant. It appears that during the course of investigation a protest petition was also filed in the court of Subdivisional Judicial Magistrate, Bettiah, adding one more i.e. the name of petitioner no. 4 in the category of accused persons. The protest petition was ordered to be kept on record.

The police after completing the investigation submitted the final report on 19.4.1979. The learned Subdivisional Judicial Magistrate on 17.3.1980 accepted the final form and ordered for the registration of protest petition filed by the informant treating it as a complaint. Thereafter, it appears that the learned Subdivisional Judicial Magistrate started inquiry in purported exercise of powers conferred upon him u/s 202 of the Code. It is relevant to state here that sis persons were named as witnesses in the protest petition. During the course of inquiry five witnesses named in the protest petition, namely, Zahur Mian, Nathuni Mian, Hadish Mian, Ram Bilas Choudhary and the doctor were examined. It appears that one of the witnesses Sudhakar Tiwary named in the protest petition could not be examined.

The learned counsel appearing on behalf of the petitioners has challenged the impugned order on the ground that all the witnesses named in the protest petition have not been examined as well as the Magistrate has not called upon the complainant to produce all his witnesses, therefore, the order of the Magistrate is bad in law and fit to be set aside. In support of his contentions he has raised the following three points:--(i) After final form being accepted by the Magistrate, cognizance cannot be taken on protest petition; (ii) Since it was incumbent upon the Magistrate to call upon the complainant to produce all his witnesses and the Magistrate has not called upon the complainant to produce all the witnesses, therefore, the impugned order is bad in law and fit to be set aside; (iii) No offence has been made out against the petitioners, therefore, cognizance is bad in law and fit to be set aside.

So far as point no. 1 is concerned, I may point out here that this point has already been decided in a number of cases by the Division Bench of this court (See-1982 Bihar Law Judgment, 627, Chandra Shekhar v. Raj Kishore; 1984 PLJR 774 : Munilal Thakur & ors. v. Nawal Kishore Thakur & another). The same question was raised in Munilal Thakur''s case (supra) where it has been held, "To conclude, the answer to the question posed at the outset is rendered in the affirmative and it is held that a Magistrate, even after accepting the final report, can still take cognizance of the offence upon a complaint or a protest petition on same or similar allegations of fact". In view of the aforesaid decisions now the controversy as to whether the Magistrate can take cognizance even after accepting the final report stands set at rest and I do not find any merit in the first contention raised by the learned counsel.

So far as point nos. (ii) and (iii) are concerned, the learned counsel vehemently argued that the Magistrate has committed an error of law in issuing processes against the petitioners without complying with the mandatory provisions of proviso to sub-section (2) of section 202 of the Code and no offence under any of the sections has been made out against the petitioners. It was further urged that the teamed Magistrate had no jurisdiction to issue processes for the offence u/s 302 of the Penal Code which is exclusively triable by the court of Session without examining all the witnesses named in the protest petition and without calling upon the complainant to produce all his witnesses named therein as such the procedure adopted by the learned Magistrate is inconsistent with the provisions of section 202(2) Proviso of the Code.

Section 202 of the Code deals with the postponement of issue of processes in certain cases. It lays down that any Magistrate on receipt of the complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192 of the Code, may if he thinks fit, postpone the issue of processes and either inquire into the case himself or he may direct the investigation to be made by the police officer or any other person as he thinks fit but he con not make such direction for investigation where it appears to the Magistrate that the offence complained of is triable exclusively by the court of Session. In this connection I may fully quote sub-section (2) of section 202 of the Code:-

"202. Postponement of issue of process.

(1) x x x

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of Session, he shall call upon the complainant to produce all his witnesses and examine them on Oath."

On a plain reading of sub-section (2) of section 202 of the Code, it is clear that if the offence complained of is triable exclusively by the court of Session, it is incumbent upon the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath.

The moot question that arises for consideration in this case is as to whether it is obligatory upon the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath in the case of offence under sections 302 of the Penal Code, which is triable exclusively by the court of Session under proviso to sub-section (2) of section 202 of the Code.

The learned counsel has argued that under the proviso to sub-section (2) of section 202 of the Code since it is incumbent upon the Magistrate to call upon the complainant to produce all his witnesses and in the instant case the learned Magistrate has not called upon the complainant to produce all his witnesses therefore, the order taking cognizance is illegal and fit to be, set aside. In support of his contention reliance has been placed on a Bench decision of this court in Jai R. Ranjan Gud & ors. v. State of Bihar and another (1980 B.L.J.R. 174), where it has been held that on the perusal of the proviso it is clear that a Magistrate is bound to examine on oath all the witnesses of the complainant. He is also bound to call upon the complainant to produce all his witnesses. It was vehemently argued that in the instant case the learned Magistrate had not called upon the complainant to produce all his witnesses. In the instant case it is an admitted position that six persons were cited as witnesses in the protest petition, out of them five witnesses were examined and one more, who was not named in the protest petition, was also examined.

In order to find out as to whether the learned Magistrate has called upon the complainant to produce all his witnesses, I have examined the record of the court below. From the order dated 6.5.1980 I find that one of the witnesses Zahur Mian, was examined during the course of inquiry and complainant was called upon to produce other witnesses on 22.5.1980. I find from the order sheet that on 22.5.1980 another witness. Hadish Mian, was examined and the case was adjourned to 17.6.80 for further examination of the witnesses. Witness no. 3 Nathuni Mian was examined on 10.7.1980. Witness no. 4 Ram Bilas Choudhary was examined on 24.7.80 and on that date the complainant was called upon to produce his remaining witnesses on 8.8.1980. Having examined the records of the case, I find that the Magistrate had called upon the complainant to produce all his witnesses and in my opinion, there has been substantial compliance of the provisions of the law. 1 do not find any substance in the contention of the learned counsel that the Magistrate had not called upon the complainant to produce all the witnesses to be examined on behalf of the complainant, and thus, there has been any violation of the provisions contained in sub-section (2) of section 202 of the Code. From the reading of the aforesaid provisions the only requirement of law is that the Magistrate has to call upon the complainant to produce all his witnesses and examine them on oath, if so produced. I have already indicated above that out of six witnesses named in the protest petition five witnesses have already been examined. If the complainant fails to produce one of his witnesses in the instant case, in my opinion, that will not vitiate the order of the learned Magistrate. I have gone through the ordersheet and it appears that opportunity was given to the complainant on various dates to bring his witnesses and, therefore, it is absolutely clear that the Magistrate had called upon the complainant to produce his witnesses. Thus, in my opinion, the relevant provisions of the Code has not been violated and even if one of the witnesses named in the protest petition has not been examined, that will not make the order taking cognizance against the petitioners bad in law.

The learned counsel further pointed out that it has been held in the case of Jai Ram''s case (supra) that consequence of noncompliance with the mandatory procedure will render the order of issuance of process and all subsequent orders illegal. In other words, his contention was that provision to sub-section (2) of section 202 of the Code is mandatory and the Magistrate is bound to examine all the witnesses, whom the complainant wishes to examine. On the other hand, the learned counsel appearing on behalf of the State and the complainant opposite party no. 2 submitted that proviso to sub-section (2) of section 202 of the Code is not mandtory, but only directory and the impugned order cannot vitiate in law for non-examination of all the witnesses. It was further contended on behalf of Opposite party no. 2 as well as the State that under the law a duty has been cast upon the Magistrate to direct the complainant to produce all his witnesses, even if some witnesses are not produced, that will not vitiate the order of the learned Magistrate. It has also been contended that opportunity was given to the complainant to produce all his witnesses by the Magistrate, and therefore, the order of the Magistrate should not be disturbed. I have already stated above, after going through the ordersheet that the complainant was called upon to produce all his witnesses and five witnesses out of the six cited in the protest petition were examined by the Magistrate on different dates. The question is whether the failure of the complainant to examine the remaining one witness named in the protest petition would vitiate the impugned order. It is true that the proviso to sub-section (2) of section 202 of the Code provides, inter, alia, that the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. As I have already held that there has been substantial compliance of the law, even if one of the witnesses named in the protest petition has not been examined, that will not make the impugned order bad in law and as such I do not find any merit in this application. If the Magistrate on the evidence adduced by the complainant feels satisfied that there exists sufficient ground for proceeding in spite of the complainant not examining all the witnesses it will be lawful for the Magistrate to issue process against the accused. I, therefore, do not find any merit in the second contention as well advanced on behalf of the petitioners.

Lastly, it was submitted that no offence has been made out against the petitioners as evidenced from Annexure-2 appended to this application. In this connection I may refer to a decision of the Supreme Court in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, . In that case a complaint petition was filed and some witnesses were also examined by the Magistrate, who on a consideration of the evidence was satisfied that a prima facie case has been made against the accused persons and they were summoned for trial. The party being aggrieved by the aforesaid order moved the High Court in revision and the High Court after detailed discuss-, ions, not only on the materials produced before the Magistrate by the complainant, but also some of the documents filed by the accused, held that the order of the Magistrate was illegal and, therefore, quashed the same. The matter came before the Supreme Court where it was held that once the Magistrate had exercised its discretion it was not proper 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 that the allegations in the complaint, if proved, would ultimately end in conviction. Supreme Court held that these considerations are totally foreign to the scope and ambit of an inquiry u/s 202 of the Code and the order of the High court was set aside and the Magistrate''s order was restored. I find that the learned Magistrate in the instant case has considered the statements of five witnesses cited in the protest petition and one more witness and has come to the conclusion that a prima facie case has been made out and it is not for me to go into the merits of the case at this stage. Therefore, I do not find any substance in this argument as well.

Before concluding, in my view, one point still remains for consideration. Whether the proviso to sub-section (2) of section 202 of the Code is mandatory or directory. The learned counsel appearing on behalf of the opposite party has contended that the procedure indicated in the proviso to sub-section (2) of section 202 of the Code in this regard is only directory and not mandatory. He has relied upon a decision in Sumer Paneri and another v. State of Bihar and another (56 ILR Patna-438), which reads as follows:-

"On giving my anxious consideration I feel inclined, to take the view as indicated earlier and hold that it is not incumbent for the complainant to examine all his witnesses before a magistrate could pass an order either u/s 203 or section 204 of the Code. The procedure indicated in the proviso to sub-section 2) section 202 in this regard thus appears to only directory and not mandatory"

In view of the aforesaid decision, I hold that the proviso to sub-section (2) of section 202 of the Code is directory and not mandatory.

By the way, I may point out here that in Criminal Miscellaneous case no. 1604 of 1984 decided on 14th April 1984 I had myself held that proviso to sub-section (2) Of section 202 of the Code was mandatory, but I must state that the decision in Sumer Paneri and another vs. The State of Bihar (supra) had not been brought into my notice and 1 must admit that court, in view of the aforesaid Division Bench decision of this court, my view was wrong on the earlier occasion. For the reasons stated above, I do not find any merit in any of the contentions advanced on behalf of the petitioners and in the result, the application is dismissed.