Sheikh Mianjan Mian vs Rajballabh Singh and Others

K.B.N. Singh, J.—This revision petition has been directed against an order of the Sub-divisional Magistrate, Hazaribagh, dated the 6th February, 1967, directing Sri S.N. Laha, Magistrate 1st class to hold further enquiry and report by the 30th March, 1967., The facts leading to the filing of the present revision petition are as follows.

A complaint was filed by the petitioner on the 26th August, 1965, before the Sub-divisional Magistrate, Hazaribagh, who, after examining the complainant on solemn affirmation, dismissed the complaint by his order of the same date. The allegation in the complaint petition was that while the. complainant along with 25 others including women was doing transplanting work in his Jobia khet at about l0 A.M. on the 25th August, 1965, in village Dhothuwa P.S. Ramgarh district Hazaribagh the seven opposite party came to the said field and asked the complainant to stop transplantation at the point of guns. The complainant and his men stopped transplantation work and thereafter when the complainant''s party was fleeing away the opposite party chased them up to village Dhothua and opened fire as a result of which Mokram Mian, Maniruddin and Jalaluddin received gun shot injuries and the first two persons succumbed to their injuries. The allegation against the opposite party was that they hatched a plan and in conspiracy committed the offence in question. It was further averred in the complaint petition that the accused persons could have averted the situation by arresting the members of complainant''s party if there was any occasion for doing so but instead indulged in this heinous crime. It may be stated here that out of seven accused opposite party Nos. 1 to 3 are residents of village Mael (Mael Colliery) and opposite party Nos. 6 and 7 are residents of village Dhuthwa, while opposite party No. 4 Lakh Narayan Singh is officer-in-charge of police station Ramgarh and opposite party No. 5 Suresh Prasad is Sub Inspector attached to Ramgarh police station.

The petitioner filed a revision application before the Sessions Judge against the order of dismissal of the complainant praying for further enquiry (criminal revision No. 116 of 1965) which was allowed by the Sessions Judge and further enquiry was ordered. On receipt of the aforesaid order the Sub-divisional Magistrate directed Sri R.L.P. Sukla, to enquire and report in the matter. On the protest of the petitioner the Sub-divisional Magistrate recalled the enquiry and entrusted it to another 1st class Magistrate Sri S.N. Mahto, Shri Mahto after enquiry submitted his report that present case was a false one. On perusal of the report and after hearing, the Sub-divisional Magistrate dismissed the complaint as no prima facie case was made out. Against the said order petitioner filed a revision petition (Cr. Rev. 172 of 1966) before the Sessions Judge which was heard by the Additional Sessions Judge who directed further enquiry by his order dated the 28th January, 1967. , The Sub-divisional Magistrate, on receipt of the order of the Additional Sessions Judge, passed the impugned order on the 6th February, 1967, and directed Sri B.N. Laha, Magistrate 1st class, to hold further enquiry and report by the 30th May, 1967.

A counter affidavit had also been filed by the opposite party in this case and in paragraph 3 of the counter affidavit it is alleged that the petitioner filed this petition by suppressing true version of the occurrence to save himself from prosecution u/s 307 and other sections of the Indian Penal Code. They also filed the first information report lodged by opposite party No. 4 on 25-8-1965 regarding an occurrence in which armed force with a Magistrate deputed there, was severely assaulted by petitioner''s party in which case the complainant in the present case and his party men have been committed to the court of session on 9-12-1966 and also filed copy of commitment order with the counter affidavit. That the complainant and his party men have been committed to the court of sessions for an occurrence of the same date and place has not been challenged by the petitioner.

Mr. Joytinarain appearing on behalf of the petitioner has urged that after the order of further enquiry by the Additional Sessions Judge, the Subdivisional Magistrate should have issued processes against the opposite party instead of calling for any report in the matter from Sri Laha. The submission of the learned Counsel is that an enquiry having already been made out by Sri Mahto, the order of the Additional Sessions Judge directing further enquiry should have been given effect to by summoning the opposite party. Learned Counsel in support of his submission has relied on two decisions of this Court in the case of Brijnalh Sahai v. Babu Lal 1956 BJLR 575 and in the case of Mr. Jugeshwar Choudhary v. Mr. A. Lakra, Deputy Incharge of Land Revenue 1966 BL.JR 693.

To appreciate the position it will be useful to refer to the order of the Sub-divisional Magistrate dated the 26th August, 1965 dismissing the complaint which runs as follows:

Examined the complainant on S.A. The complainant has not divulged the real state of affairs leading to the incident indicated in the complaint petition and has tried to make out a prima facie case against the persons named as accused in the complaint petition. I gather that a Magistrate along with armed force was deputed to maintain law and order in pursuance of direction issued by a competent court of law. The trouble over the disputed land was brewing of since long time and the complainant has lost all the case in the civil and criminal courts and the other party was declared in possession over the land.

The complainant seems to have taken the law into his own hand and wanted to create trouble with his own men there. There is no reason to believe that the S.I.''s of police has opened fire when a Magistrate I/c Armed force was detailed for the purpose.

Section 132 of Cr. P. C. envisages that no prosecution against any person for any act purporting to be done under chapter IX of Cr. P. C. can be instituted in any criminal court except with the sanction of the State Govt. and it further lays down that no inferior officer, soldier, sailor or airmen in the Armed force doing any act of obedience to any order which he was bound to obey shall be deemed to have thereby committed an offence. The Armed force deputed there has acted lawfully and this section stand as a bar to take cognizance of the matter. Further no sanction from the State .Govt. has been filed along with the complaint petition and as such the complaint is not maintainable.

I, therefore, dismiss the complaint u/s 203, Cr. P. C. After the order of further enquiry by the Additional Sessions Judge the Sub-divisional Magistrate deputed Sri Mahto to enquire and report and Shri Mahto reported that petitioner had filed a false case which the Sub-divisional Magistrate accepted on 16-9-1966 and dismissed the complaint and observed as follows.

In his report, Sri Mahto has after carefully considering the evidence of witnesses examined before him has held that in his opinion the complainant had filed a false Case regarding the manner in which the occurrence took place. I have gone through the report carefully and also perused the statements of witnesses recorded by Mr. Mahto during the course of enquiry. Those statements have been forwarded with the record of the enquiry I have also carefully examined the statement of complainant on S.A. and the complaint petition. I am satisfied that the prosecution has completely failed to substantiate any prima facie case against the accused persons and there is no merit in the present case.

Under the circumstances the complaint is dismissed u/s 203, Cr. P. C." From the aforesaid fact it is apparent that from the materials already on the record the Sub-divisional Magistrate was not satisfied that any prima facie case was made out. He, therefore, wanted a fresh enquiry report into the matter by Sri Laha. He has not finally disposed the matter.

Mr. Narayan urged that the Additional Sessions Judge in the order for further enquiry has observed that the complaint petition has been able to make out a prima facie case and hence the Sub-divisional Magistrate should have summoned the petitioner.

In the case of Brijnath Sahai 1956 BLJR 575 relied upon by learned "Counsel for petitioner the facts are as follows:

Brijnath Sahai filed a complaint for offence under Sections 426 and 504 of the Indian Penal Code before Sub-divisional Magistrate, Arrah and one of the accused persons was driver of the Sub-divisional Magistrate Mr. Mallik: After examining the complaint on solemn affirmation the Sub-divisional Magistrate sent the matter for enquiry and report by Sri A.C. Majumdar Magistrate. Mr. Majumdar enquired into the matter and submitted a report to the effect that the complaint should be dismissed. Thereafter the learned Sub-divisional Magistrate dismissed the complaint. The complainant then moved the learned Sessions Judge of Sahabad for a further enquiry into his complaint which was heard by Additional Sessions Judge, who set aside the order of dismissal on the ground that it was not a proper order and that the case should be tried in Court, and the learned Additional Sessions Judge passed a technical order directing a further enquiry into the complaint of Brijnath Sahai. On receipt of the order of the Additional Sessions Judge, Mr. D. P. Mallik passed an order on the 20th November, 1954 for issue of notice to the parties to appear before him. The complainant again moved the Sessions Judge for revising the order of the learned Sub-divisional Magistrate on the ground that there was no occasion for a second judicial enquiry when the learned Additional Sessions Judge had already directed that the accused persons should be put on trial. The second revision application was dealt with by another Additional Sessions Judge who held that the order of the learned Sub-divisional Magistrate was not happily worded but rejected the application and observed that a further enquiry should be done and the case should be taken up by a Magistrate other than Messrs D. P. Mallik and A.C. Majumdar. He further observed that the record should be placed before the District Magistrate for transfer of the case for disposal to some other Magistrate. Mr. D. P. Mallik thereafter sent the record of the case to the District Magistrate. The District Magistrate, however, instead of making over the case to some other Magistrate of competent jurisdiction, passed an order returning the record to the Sub-divisional Magistrate and asking the Sub-divisional Magistrate to take necessary action in accordance with law. Mr. Mallik thereafter transferred the cage to Sri M.N. Gharri to hold a second judicial enquiry into the complaint and to submit a report. The complainant again moved the Sessions Judge praying to refer the case to the High Court against the order of learned Sub-divisional Magistrate asking a second judicial enquiry and suggesting that the accused should have been put on trial. It was in those circumstances Das, J. on reference made by Sessions Judge, observed as follows:

It seems to me quite clear that in the circumstance of this case, the proper order to pass is to put the accused person on trial without holding a second judicial enquiry. As was explained in Udit Narayan Patwari and Others Vs. Emperor, the order by a Superior Court to an inferior Court to hold a further enquiry into a complaint which has been dismissed u/s 203, Code of Criminal Procedure, has acquired what may be called a technical meaning; it means a reconsideration of the complaint which has been dismissed. The nature of the reconsideration will depend on the circumstances of each case. In a case where the complaint has been summarily dismissed u/s 203, Code of Criminal Procedure, without an enquiry, the direction of a further enquiry may well mean that a judicial enquiry should be held before the complaint is dismissed. Where, however, a judicial enquiry was hold and then the complaint was dismissed u/s 203 and the superior court held that the order of dismissal was wrong and that the accused persons should be put on trial, the direction for a further enquiry can only be complied with by putting the accused persons on trial. Otherwise, the result may be an absurd and impossible position.

From the aforesaid fact, it is apparent that where a judicial enquiry is held, and then a complaint is dismissed and the superior court holds that the dismissal of the complaint is wrong and directs that the accused should be put on trial, the direction of further enquiry can only be complied with by putting the accused on trial..

Mr. Narayan, however, relied on the case of Mr. Jugeshwar 1966 BLJR 693. In that case the District Magistrate, Darbhanga ordered a judicial enquiry u/s 202 of the Code of Criminal Procedure by an Additional District Magistrate. The latter submitted a report in favour of the opposite parties. The learned District Magistrate by his order accepted the enquiry report and for reasons stated in his order, dismissed the complaint petition u/s 203 of the Code of Criminal Procedure. The District Magistrate was of the opinion that he could not take cognizance of the offence alleged to have been committed by opposite party No. 1, namely, Sri A. Lakra Deputy Collector Incharge of Land Revenue in absence of sanction of the State Govt. Against the aforesaid order of dismissal the complainant filed an application before the Sessions Judge who held that "that part of the incident had taken place which warranted putting two of the opposite parties on trial before a competent court." He, however, refused to order further enquiry against opposite party No. 1 for want of sanction u/s 197 of the Code and as against opposite party Nos. 2 and 3 he ordered further enquiry to be made. Against the said order the complainant filed a revision in this Court. Two questions arose; (1) that on the facts and in the circumstances of that case no sanction to prosecute opposite party No. 1 was necessary and (2) that in any event, the order directing further enquiry against opposite parties 2 and 3 was not couched in satisfactory language and it might contain an impression that a fresh enquiry u/s 202 might be necessary. While relying on the case of Brijnath Sahai v. Babu Lal 1956 BLJR 575 their Lordships observed on the second question that fresh further enquiry u/s 202 of the Code was uncalled for. Thus the fact of this case is also distinguishable, as there was a direction in the order of further enquiry for putting two of the accused on trial, as in Brijnalh Sahai''s case. In the instant case, the Sub-divisional Magistrate, in his first order, observed that the complainant has not come out with a true case. The enquiry report of Shri Mahto was also to the effect that the petitioner''s case was false and the fact of posting of armed force, along with a Magistrate and opposite party Nos. 4 and 5, to maintain law and order, under orders of the Magistrate, is not denied. Learned Counsel for the opposite party, on the other hand, further submitted that a reference to paragraph 8 of the complaint petition is a tacit admission of the fact that armed force had gone there. The said paragraph may be usefully quoted here below:

That the accused persons could have averted the situation by the arrest of the complainant party if there was any occasion for doing so but instead of this indulged into this heinous crime leading to death of the two persons and fatal injuries to 2, 3 or 4 persons by bullets. That the complainant party were in actual physical possession of Jhobia khet.

Learned Counsel submitted that the enquiry Magistrate, Shri Mahto, was perfectly justified in going into the question whether the opposite party had a right of private defence and the manner in which the occurrence took place, and the Sub-divisional Magistrate was also justified in, dismissing the complaint. The observation of the learned Additional Sessions Judge, in his order dated the 20th January, 1967, (in Criminal Revision No. 172 of 1966) holding a prima facie case is without taking into account the plea of right of private defence, which, in view of the admitted position that a Magistrate with armed force had gone there in course of which this occurrence took place, ought to have been taken into consideration before holding any prima facie case, in view of the Supreme Court decision in the case of Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker and Another, which decision, though referred to in the case of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, has not been overruled. Learned Counsel submitted that the learned Additional Sessions Judge was not justified in holding that the enquiring Magistrate was wrong in cross-examining the prosecution witnesses regarding the posting of the armed force, etc. I do not wish to go into this question at this stage, in view of the fact that the decisions relied upon by the learned Counsel for the petitioner are distinguishable, inasmuch as in those cases there was direction to put the accused on trial, which is not the position in the order of the learned Additional Sessions Judge dated the 20th January, 1967. There being no order to put the accused on trial, I do not think that on the facts and in the circumstances of the case, the order of further enquiry passed by the Sub-divisional Magistrate, i.e., the impugned order, can be said to be illegal so as to warrant any interference in the exercise of the revisional jurisdiction of this Court.

It, however, appears that Shri Laha had something to do with this case at one stage or the other and hence it will be desirable that the enquiry ordered by the Subdivisional Magistrate should be conducted by some Magistrate other than Shri Laha.

With the above modification in the order of the Sub-divisional Magistrate, the application is dismissed; I would, however, like to make it clear that any observation made in this case is not meant to influence the Subdivisional Magistrate who has to form his own opinion in the case in accordance with law. Any observation made by me should not be used in favour of or against any of the parties.