Ratan Singh vs Kusum alias Suman and Another

I.P. Singh, J.—Ratan Singh, accused-applicant, has filed this application Under Section. 482 Code of Criminal Procedure to seek quashing of (1) order dated 6-10-81 of IV Addl. Sessions Judge, Aligarh passed in Criminal Revision No. 37 of 1981(2) the order dated 20-12-80 of Shri K.P. Singh, Special Judicial Magistrate Aligarh, passed in Criminal case No. 820 of 1980, summoning Ratan Singh accused-applicant for offences punishable u/s 366/376 and 120-B, IPC; and (3) the complaint dated 8-10-80 filed by Smt. Kusum @ Suman (wife of Darshan Singh), opposite party No. 1, against Mohd. Ali and two others (including Ratan Singh) Under Section. 363/366/376/120-B, IPC pending in the court of Sri K.P. Singh, Special Judicial Magistrate, Aligarh.

After the above complaint was filed, statement u/s 200 and 202 Code of Criminal Procedure were recorded. Thereafter the accused including Ratan Singh applicant were summoned by order dated 20-12-80. Feeling aggrieved by the said summoning order the present applicant Ratan Singh along with other co-accused Chand Bihari, O.P. No. 2, filed Criminal Revision No. 37 of 1981 to get the impugned order of summoning them set aside. The IV Addl. Sessions Judge dismissed the said revision on 6-10-81 holding that the impugned order dated 20-12-80 summoning the accused-revisionists was an interlocutory order against which no revision lay as provided u/s 397(2), Code of Criminal Procedure. Feeling aggrieved, against the order dated 6-10-81 the present applicant has filed the present application to get the above-mentioned reliefs.

It is argued that the view of the learned Sessions Judge that the order summoning the accused was an interlocutory order is erroneous. For this reliance has been placed on the decision in Amar Nath and Others Vs. State of Haryana and Another, in which it was held:

The term interlocutory order'' in Section 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important right or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against the order, because that would be against the very object which formed the basis for insertion of this particular provision in Section. 397. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie u/s 397(2). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

It was further observed:

The order of Magistrate summoning the Appellants was one which was a matter of moment. If the Appellants were not summoned then they could not have faced the trial at all, but by compelling the Appellants to face a trial without proper application of mind could not be held to be an interlocutory matter but one which decided a serious question as to the rights of the Appellants to be put on trial. That being the position, a revision against the order was fully competent under Section. 397(1) or under Section. 482, because the scope of both these sections in a matter of this kind is more or less the same.

In view of the above decision there remains no doubt that the order of the learned Magistrate dated 20-12-80 summoning the accused applicant was not an interlocutory order as envisaged u/s 397(2), Code of Criminal Procedure and could be challenged in revision u/s 397(1), Code of Criminal Procedure before the learned Sessions Judge. That settles the matter and the order of the learned Sessions Judge dated 6-10-81 is not legal or valid.

The other prayer is to quash the complaint itself, which can be done u/s 482, Code of Criminal Procedure. In this connection reference may be made to the case of Madhu Limaye Vs. The State of Maharashtra, wherein it was held that the following principles may be stated in relation to the exercise of the inherent power of the High Court:

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

In the matter of quashing the complaint second principle quoted above will have to be gone into to find out as to whether the said complaint has been filed to abuse the process of the court or that the ends of justice require its quashing.

One of the points raised in this connection by the learned Counsel for the applicant is that the complaint annexure-1 was filed in the court on 8-10-80 with respect to the alleged occurrence of 29-5-77 as mentioned in para 7 of the said complaint. It is argued that in this way the complaint was filed after about 3-1/4 years of the occurrence and that by itself indicates that the complaint has been filed for some ulterior motive because had there been any reality in the alleged occurrence of rape the complainant would not have slept over the matter for that much period.

Learned Counsel for the complainant, opposite-party No. 1 has pointed out that no limitation has been provided against the alleged offence u/s 363/366/376/120-B, IPC and the so called delay in lodging the complaint should not weigh. I agree that the point of limitation has no substance. The matter of the abuse of the process of the court would then depend upon the fact as to whether the allegations made in the complaint fail to make out a prima facie case. If that be so, its filing would tantamount to resorting to "abuse of the process of the court". That fact by itself would be sufficient to quash the complaint itself.

In this regard another point has been stressed on behalf of the applicant that previously the FIR was lodged by the same lady with the police on 29-5-77 with respect to the same alleged occurrence. A copy of the said FIR is annexure-4 and it indicates that the allegations in the said FIR and the said complaint are one and the same. In the said FIR final report was submitted on 20-6-77 vide annexure-5. It is, therefore, argued that once the final report was submitted by the police itself, it is sufficient indicative of the fact that the allegations of the complaint are false and the filing of the complaint, in the circumstances, is nothing but an abuse of the process of the court. However, when the complaint has been filed the considerations on which the final report was submitted by the police would be irrelevant. The courts will have to confine themselves to the allegations made in the complaint to find out if a prima facie case is made out therein or not. When statements u/s 200 and 202, Code of Criminal Procedure were also recorded by the learned Magistrate in support of the said complaint then those statements are also to be looked into. A perusal of the complaint itself shows that it does contain ingredients of the offence.

Although it was not alleged in the application itself that the learned Magistrate has not recorded the statement of all the prosecution witnesses Under Section. 202, Code of Criminal Procedure (the case being a complaint case) yet in supplementary affidavit filed by one Chhote Lal as Pairokar of the applicant it was mentioned in para 4 thereof that the learned Magistrate did not call upon the complainant to produce all his witnesses ; and since he has not examined all the witnesses he had no jurisdiction to summon the applicant. Since the stand taken is that the statements of all the witnesses were not recorded Under Section. 202, Code of Criminal Procedure so the copies thereof were not filed. Nonetheless on 6-10-83 when the case was taken up This Court desired the learned Counsel for the applicant to file certified copy of the order-sheet from the lower court''s record, to throw light on the point as to whether some of the witnesses named in the FIR or the complaint or in the list attached to the complaint were given up or not (to find out conclusively as to whether all the witnesses desired by the complainant had been examined u/s 202 Code of Criminal Procedure or not). Copy of the relevant order sheet was filed on 28-11-81 with the supplementary affidavit. Its perusal shows that the statements of all the witnesses for the prosecution had been recorded by the learned Magistrate. Accordingly the above point raised was given up.

The statements of all the witnesses had been recorded by the learned Magistrate u/s 202, Code of Criminal Procedure. As a matter of fact, in para 7 of the application it was mentioned that "the Magistrate after perusing the aforesaid complaint, the statements u/s 200 and 202, Code of Criminal Procedure summoned the accused Under Section. 204, Code of Criminal Procedure by this order dated 20-12-1980". Thus while summoning the accused-applicant the learned Magistrate had taken into consideration all the above material before him. However, certified copies of the statements u/s 200 and 202 Code of Criminal Procedure have not been filed through any annexure. This Court, therefore, is net in a position to go through those statements. However, it would not be out of way to draw an adverse inference against the present accused-applicant that had he filed the copies of the statements they would have provided evidence against him. I may therefore conclude that the complaint coupled with these statements did make out a prima facie case against the accused-applicant. This then would not make the filing of the complaint abuse of the process of the court. This would also indicate that it is not necessary in the interest of justice to quash the said complaint. The prayer to this effect has also no substance.

The only point that remains is as to whether the order of the learned Magistrate, dated 20-12-80, summoning the accused-applicant u/s 366/376/120-B, IPC should be quashed or not. The argument advanced by the learned Counsel for the applicant is that when the said summoning order is revisable u/s 397(1), Code of Criminal Procedure then it should be "a speaking order." In this connection reliance was placed on the decision in Bharat Raja Vs. The Union of India (UOI) and Others, . It may be noted that the said decision was in the exercise of appellate jurisdiction under Article 136 of the Constitution of India and concerned Rule 55 of Mineral Concession Rules, 1960 framed under Mines & Minerals (Regulation & Development) Act, (1957). It was held therein:

The decisions of tribunals in India are subject to the supervisory powers of the High Court under Article 227 of the Constitution and of appellate powers of Supreme Court under Article 137. It goes without saying that both the High Court and the Supreme Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word "rejected" or "dismissed." Ordinarily, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the Central Government adopts the reasoning of the State Government, Supreme Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But, when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, Supreme Court, in appeal may have to examine the case de novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying those reasons which according to it are sufficient to uphold the order of the State Government, Supreme Court, in appeal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstances, what is known as a "speaking order" is called for.

It was, therefore, argued by the learned Counsel for the applicant that the order which is subject to revision should be a " speaking'' order ". But, I do not read the above meaning in the above decision. To my mind, it lays down that the orders passed in revisions by the tribunals which are subject to the supervisory powers of the High Court under Article 227 and of appellate powers of the Supreme Court under Article 136 of the Constitution of India should not be dismissed curtly but should be such as could be called " a speaking order ". In the circumstances the above argument of the learned Counsel for the applicant is not convincing.

In this connection we can refer to the provisions of Sections 203 and 204, Code of Criminal Procedure. These sections read as below:

203.--If, after considering the statements on oath if any of the complainant and of the witnesses and the result of the inquiry or investigation (if any) u/s 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for doing so.

204.--(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be--

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (i) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or any other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of Section 87.

A comparison of these two sections brings out the difference between the two. Whereas Section 203 provides that while dismissing a complaint the Magistrate has to record briefly the reasons for doing so, Section 204 which provides for issuing of process, does not lay down that in that event the Magistrate has to record the reasons. Thus ''while summoning the accused u/s 204, Code of Criminal Procedure the Magistrate is only to form an opinion that he is to take cognizance of the offence and that there is sufficient ground for proceeding against the accused. When the said section does not require recording the reasons for his resorting to the above course then, in other words, the order of summoning the accused need not be a speaking order and the brief or the court order requiring summoning of the accused would be quite legal order and would not suffer from any infirmity. In this connection reliance may be placed on the decision in Swarn Anand and Others Vs. Chief Judicial Magistrate and Another, wherein it was held: " In case the Magistrate does not pass an order of discharge u/s 203, Code of Criminal Procedure he has to proceed u/s 204, Code of Criminal Procedure. In that case he has merely to form an opinion if there is sufficient ground for proceeding against the accused person. It does not require him to give any reasons for his so doing. An order summoning the accused has merely to state the opinion of the Magistrate. He need not state grounds for his satisfaction."

As a result of the above discussion, I see no illegality in the order dated 20-12-80 summoning the accused.

In the facts and circumstances mentioned above, I see no force in the application. It is, therefore, dismissed.