Surinder Kumar alias Palu Singh vs Jagdish Lal

M. M. Punchhi, J.

This is a revision petition against the order of Sh. A.P. Chaudhary, Sessions Judge, Rohtak, whereby he set aside an order of discharge passed by the Judicial Magistrate First Class, Rohtak and required of him to frame charges against the petitioner, which appear to have been made out from the prosecution evidence, and thenceforth proceed to try the accuse.

The facts, as broadly stated, are these :

The complainant Jagdish Lal had suffered an ejectment order. Mahabir Bailiff, petitioner No. 6, accompanied by petitioner No. to 5, the landlords party had reached the shop in question on 25.2.1981 to effect eviction. According to the complainant Jagdish lal, the time then was 8.30 A.M. and he too incidentally reached there. He found Surinder Kumar and Mahadev, accusedpetitioners, breaking open the lock of the shop with hammers. The complainant asked the bailiff accusedplaintiff whether he had got an order for breaking open the lock from the Court. The bailiff did not show any such order. Thus mentally obstructed, the accused persons then threatened the complainant that he would be killed if he came near them. Then accusedpetitioner Nos. 1 to 5 broke open the lock and threw away the goods lying in the shop. On alarm raised, Sant Lal, Tirath Dass and Aishi Lal, PSW, reached there as also others. When the accused were asked not to behave in a highhanded manner, they gave first blows to the complainant. When the complainant warned the accused that he was going to report the matter to the police, then two of the accused remarked that the police was their own. Thereafter the accused persons left giving a threat that they would kill the complainant and get the shop vacated. The complainant informed the police, but no effective action was taken. A few days later on 27.2.1982, he filed the complaint. After preliminary evidence, the accused were summoned by the learned Magistrate. Thereupon, proceedings, as envisaged under section 244 of the Code of Criminal Procedure, commenced. The learned Magistrate examined all such evidence as was produced in support of the prosecution. As is the settled practice in such matters, the accused persons availed the right of crossexamination and avowedly made inroads in the prosecution case. In particular, emphasis was laid on the report of the bailiff, Exhibit P2/A, introduced by the prosecution, which revealed a different version than that given by the complainant. The learned Magistrate enumerated reasons to hold that no case had been made out against the accused persons and accordingly discharged them.

The complainant went up in revisions before the Sessions Judge, Rohtak and bemoaned that the learned Magistrate had exceeded his powers by disposing of the matter as if it was a judgment of acquittal in a final case. The precise objection was that at the stage of section 245 of Code of Criminal Procedure, the learned Magistrate had only to find out a prima facie case and he could not have weighed the evidence doubting the prosecution story.

The learned Sessions Judge in paragraph 7 of his order, has noted the infirmities pointed out by the learned magistrate. These were that there was contradiction in the time as suggested by the complainant and on the other hand by the accused. There was no proof whether any complaint was lodged with the police. No medical examination was available to corroborate the complainant. Tirath Dass PW was possibly a relation of the complainant. And lastly the complainant had failed to produce the receipt relating to creation of fresh tenancy alleged to have commenced a few days earlier to the incident.

The learned Sessions Judge noticed that the defence version of the accused was that they went to the spot at 11.30 A.M. when the shop was open and, in accordance with the warrants of possession, the goods of the judgmentdebtor were taken out, but, when he offered resistance, thereafter the further proceedings were stopped. But this version, according to the learned Judge, was still to be proved and put before the Court. For the present, the Court had only on version and that was the version of the complainant. The learned Judge then took the view that the stage had not arrived before the Magistrate to consider contradiction in the statements of the witnesses or to evaluate the testimony with that strict standard. Finally, the view taken was that since the incident was practically admitted, the Court was required to determine which out of the two versions was correct and that would only be done at the final stage and not at the stage of consideration of charge. Therefore, it was viewed that the evidence already on the record, if unrebutted, could possibly lead to a conviction.

The learned counsel for the petitioners has pointed out that even the learned Sessions Judge has reappraised the evidence produced before the learned Magistrate as if his was a Court of appeal entitled to take a different view from the one taken by the trial Court. He has pointed out that there is a sharp distinction between an appeal and a revision. No legal infirmity was there in the manner of appreciation of evidence. And to say that the learned Magistrate at the stage of sections 245 and 246 of the Code of Criminal Procedure was not entitled to take into consideration the defence of the accused, would be the very negation of the right of crossexamination, for a defence story can even be introduced appropriately in the process.

Sections 245 and 246 of the Code of Criminal Procedure are found in Chapter XIXB of the Code. The apply to cases instituted otherwise than on police report. An analogous set of provisions is sections 239 and 243 found in Chapter XIXI of the Code pertaining to cases instituted on a police report. So far as the trial before a Court of sessions is concerned, whether it be instituted on a police report or a complaint, the relevant provisions of law are Sections 227 and 228 of the Code. for the stage of the aforesaid three sets of twin provisions, the legal position uniformly understood is that the Court has to apply the test whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction, and when there is prima facie evidence the matter has to be put to even though the person charged of an offence might have a plausible defence. In State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, their Lordships of the Supreme Court, taking note of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430, observed as follows :

"Reading these two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor purpose to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompitable with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilty or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused."

But in Ramesh Singh''s case (supra), it was also noted that in Nirmaljit Singh Hoon v. The State of Bengal and others, AIR 1972 SC 2639 Shelat, J., had illustratively further added "Unless, therefore, the Magistrate finds that the evidence led before him is selfconntradictory of intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case". Neither of these cases is that of section 245 of the Code of Criminal Procedure.

But the expression "if unrebutted would warrant his conviction" is perhaps a pointer towards proper interpretation of section 245 of the Code. Such an expression is significantly not employed either in sections 239/240 or sections 227/228 of the Code. Here, by crossexamining the complainants witnesses material can obviously be brought in to innately rebut the prosecution evidence and thereby claim that it has become "self contradictory or intrinsically untrustworthy" as the expression was employed by the Supreme Court in Chandra Deo Singh''s case (supra). The Court at that stage, to my mind, is entitled to see whether there are inherent weaknesses, basic infirmities and improbabilities in the prosecution case. But, in coming to that conclusion, the trial Magistrate is of course required to record reasons for the purpose. Even in subsection (2) of section 245 of the Code, the Magistrate can, at any previous stage of the case, discharge the accused if he considers the charge to be groundless. Therefore, in my view even, at the stage of section 245 of the Code, the Magistrate can take into account the material introduced during crossexamination of the witnesses and, if a plausible defence has been introduced, weigh the case in its entirety and say that the prosecution case is intrinsically untrustworthy and suffers from infirmities and improbabilities.

In Mahant Abbey Dass v. S. Gurdial Singh and others, A.I.R. 1971 S.C. 834, cited by the learned counsel for the respondent, the Court had taken the prosecution allegations as true and, on that assumption, concluded that there was no doubt that the accused had committed the offences charged against them. These observations came from the Court in the context since the High Court had taken the view that even if the prosecution allegations were accepted, they did not disclose the commission of any offence for which the accused were required to be charged.

In Anil Kapoor v. FinancecumHealth Secretary, Chandigarh Administration, 1973 Chandigarh Law Reporter 601, an Hon''ble Single Judge, while applying Mahant Abbey Dass''s (supra), held that only a prima facie case had to be seen at the stage of charge. A prima facie case meant a case established by prima facie evidence which, in turn, meant "evidence sufficient in law to raise a presumption of fact or to establish the fact in questin, unless rebutted." Now, here again, "evidence sufficient in law" would mean, as I understand, the state of evidence as the Magistrate had before him, interwined intermingled and embroiled with defence suggestions. At that stage, to say that he should ignore them and keep the prosecution case pristinely pure and unsullied is to cause violence to the language of section 245 of the Code. Surely, at that stage he has to see not the prosecution case alone, and defer seeing the case of the defence at a later stage, but as it seems to me, to look to the entire material available on the record, as introduced by both the sides, to determine whether the prosecution case is intrinsically trustworthy. If it is so, he must frame a charge and if it is not, there is no point in requiring him to proceed ritualistically to frame charge and then finally pronounce judgment that the prosecution case is intrinsically such. That would seem to me sheer wastage of precious courttime and an abuse of the process of Court. I hold it so.

Now, applying the afore enunciated principle, it is patent that the learned Magistrate had before him the crossversion in the form of the report of the Bailiff, Exhibit P2/A, as introduced by the prosecution itself. Besides that, he had the defence version suggested in the crossexamination of the witness. He took the entire material into consideration and found it appropriate to lean out on the Bailiff''s report by observing as follows :

"It is perused from the report of the Bailiff that the complainant was present in the shop and threatened the Bailiff and Surinder accused not to deliver possession, so the police help was requested to deliver the possession. It appears that the complainant has filed this complaint in order to force the accused not to take the possession of the shop in dispute and only to harass the accused."

This was in addition to the other infirmities as pointed out and noted by the learned Sessions Judge.

This view could certainly be taken by the learned Magistrate. To say that he should have taken that view much later after be had framed the charge, would be to violate the language of section 245 of the Code of Criminal procedure. Thus, in my view, the learned Sessions Judge committed an error in interfering in the order of the learned Magistrate and setting aside the order of discharge. Accordingly, I have no hesitation in allowing this review petition and setting aside the order of the learned Sessions Judge, Rohtak. It is accordingly done by holding that the petitioners shall remain discharged.