Swarn Anand and Others vs Chief Judicial Magistrate and Another

J.P. Chaturvedi, J.—This is an application u/s 482, Cr.P.C. for quashing the order of the learned Chief Judicial Magistrate, Gorakhpur, dated 7th April, 1976 summoning the petitioners Smt. Swaran Anand, Jogendra Lal Anand, Shyam Lal Anand, Makkhan and Nanak for the offences under Sections 426 447, and 382, I.P.C. read with Section 120-B, 1P.C. and to appear before him on 27th April, 1976.

The facts giving rise to the application are that a complaint was made by Ram Chandra Sharma against Smt. Swaran Anand, Jogendra Lal Anand, Shyam Lal Anand, Makkhan and Nanak in the court of the Chief Judicial Magistrate, Gorakhpur of the offences under Sections 109 120-B 426, 447 and 382, I.P.C. alleging that the complaint Ram Chandra Sharma had a shop which he let out to Amar Nath Anand, husband of Smt. Swaran Anand applicant No. 1 in 1961. Amar Nath Anand and Mohammad Hanif had a partnership firm known as Perfect Engineering Works, In the said shop Mohammad Hanif had invested the capital while Amar Nath Anand was the working partner. Amar Nath Anand died in 1988 whereupon applicant No. 1 Smt. Swaran Anand and Jogendra Lal Anand became working partners with Mohammad Hanif under a registered deed of partnership. Jogendra Lal Anand separated from the partnership undertaking in 1972. Mohammad Hanif dissolved the partnership after giving notice and ever since 1972 Mohammad Hanif had been in possession of the shop and Smt. Swaran Anand and Jogendra Lal Anand had nothing to do with it. The complaint brought a suit for eviction of Amar Nath Anand in the civil court and obtained a decree against him. Mohammad Hanif brought a suit against the complaint Ram Chandra Sharma in which there was a compromise on 19th March 1976 in accordance with which the entire machinery and goods in the shop were sold by Mohammad Hanif to the complaint Ram Chandra Sharma for Rs. 30,000. Ram Chandra Sharma accordingly came into possession of the shop along with the machines and the goods therein on 19th March 1976 and the applicants Smt. Swaran Anand and others had nothing to do with it. There was a conspiracy between the applicants Smt. Swaran Anand and others for taking pas-session of the shop unlawfully. On 22nd March 1976 when the complaint and Mohammad Hanif were removing some articles from the shop the applicants Shyam Lal Anand, Makkhan and Nanak along with 10 or 12 persons came and entered the shop. They burnt some documents. They caught hold of the complaint Ram. Chandra Sharma and Mohammad Hanif and beat them with iron rods. They removed two transformers which were used for welding purposes, They unlawfully took possession of the shop also. On 30th March 1976 Ram Chandra Sharma made an application under the provisions of Section 94, Cr.P.C. whereupon the learned Chief Judicial Magistrate passed an order directing the Station Officer, Kotwali to take possession of the shop. The complaint also gave a notice to the applicants Smt, Swaran Anand and others for vacating the shop.

The learned Magistrate recorded the statements of Ram Chandra Sharma, Mohammad Hanif and Ram Bhuwan Tewari on 6th April 1976 and ordered for summoning the accused.

Learned Counsel for the applicants has contended that the learned Magistrate has not applied his mind in passing the above order and as such there was abuse of the process of the court in summoning the applicants. It was also pointed out that in the application for proceedings u/s 94, Cr.P.C. Annexure V Sami Ullah, Hamid, Kallu, Shyam Sunder, Ram Nagar, Shanker Singh and others were cited as witnesses of the incident of 22nd March 1976 while in the complaint two more persons Ram Bhuwan Tewari and Jangi Lal have been added. The application u/s 94, Cr. P, C. was meant for a limited purpose that is for search of the shop. Any way the word ''etc'' in paragraph 11 of the application u/s 94, Cr.P. C suggests that there were some persons other than those mentioned'' therein end on the basis of the allegations in paragraph 11, therefore, the presence of Jangi Lal and Ram Bhuwan Tewari cannot be excluded. Even if the presence of Ram Bhuwan Tewari is doubted there were two other witnesses whose statements were recorded by the learned Magistrate. They are Mohammad Hanif and Ram. Chandra Sharma who were also alleged to be present in the application u/s 94, Cr.P.C. It was also pointed out that the allegation as to the burning of documents inside the shop did not find support from the statement of the complaint himself recorded by the learned Magistrate u/s 202, Cr.P.C. A certified copy of the statement of Ram Chandra Sharma is annexed with his counter-affidavit and it is clearly stated therein in paragraph 3 that the miscreants burnt the documents which were kept in the shop. The learned Magistrate recorded the statements of three witnesses on 6th April, 1976. He passed the order for summoning the applicants on 7th April 1976. The statements of the witnesses are in the handwriting of the learned Magistrate himself and it cannot be supposed that he did not consider them when he passed the order for summoning the applicants.

It has further been contended that u/s 204, Cr.P.C. a Magistrate can pass an order for summoning the accused only if there is sufficient ground for proceeding. The procedure which a Magistrate has to follow on complaint is given in Chapters XV and XVI of the Code. Section 200, Cr.P.C. provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complaint and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complaint and the witnesses, and also by the Magistrate. Section 202 further empowers the Magistrate to postpone the issue of process against the accused and direct an enquiry or investigation to be made by a police officer or by such other person as he thinks fit. Section 203 authorises the Magistrate to dismiss the complaint . It provides:

If, after considering the statements on oath (if any) of the complaint 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 so doing." The provisions of Section 203 require the Magistrate to form an opinion on the basis of the statements of the complaint and the witnesses and the result of the enquiry or investigation and if he is of the view that no prima facie case is made out he is empowered to dismiss the complaint , If he does so he has to record reasons for doing so. In case the Magistrate does not pass an order of discharge u/s 203, Cr.P. C. he has to proceed u/s 204, Cr.P.C. In that case he has merely to form an opinion if there is sufficient ground for proceeding against the accused persons. 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. This view finds support from the authority reported in Hafizar Rahman Vs. Aminal Hoque, where it was held that

It is not necessary that the opinion of the Magistrate that there is sufficient ground for issuing process against certain accused persons u/s 204 should be based on evidence in the case nor that the reasons for such an opinion should be recorded. Consequently when the sworn statements, the reports of the enquiring officers u/s 202 of the Code and the petitions of the complaint are before the Magistrate, it must be presumed that he had perused these documents and the other papers on the record and that, after having done so, he was of the opinion that there was sufficient ground for proceeding against some of the accused persons other than those in respect of whom process had originally been issued.

Learned Counsel for the petitioners has referred to the authority reported in Udby Bir Singh Vs. Shakumtla Devi etc., . In this case a complaint was made against six persons. After having recorded the statements of the complaint and the witnesses produced by him the trial court passed an order for summoning only three of the accused. It was observed that

where a complaint is brought alleging that several offences have been committed by the accused persons and the Magistrate finds sufficient grounds for proceeding against all of them or some of them in respect of some of the offences, his order will amount to a dismissal of the complaint against such persons in respect of other offences. In that case, also the provisions of Section 203 of the Code will come into play and the Magistrate will have to state brief reasons as to why he considers that there is no sufficient ground for proceeding against the accused persons for the offences for which no action is initiated against them.

It was further observed-

The Magistrate can pass a composite order which may be covered by both Sections 203 and 204 of the Code. A consideration of the opening part of Section 204 of the Code persuades me that for proceeding against any accused person the Magistrate must make manifest in his order the sufficient grounds which may have led to his opinion that the proceedings should be initiated.

The facts of this case were peculiar in that out of six persons against whom a complaint was directed the Magistrate issued process against only three and as such he had to give reasons for discharging the three other persons. Under the provisions of Secion 203, Cr, P.C. if the order was composite he had to distinguish the case of those three persons from those who have been summoned by him. The facts of this case are quite different and as such the authority does not apply to the present case.

It was also contended on behalf of the opposite parties that an order u/s 204, Cr.P.C. summoning certain accused persons is an interlocutory order and that a revision petition against such an order being barred under the provisions of Section 397(2) a party could not be allowed to take recourse u/s 482, Cr.P.C. and thereby circumvent the provisions of Section 397(2), Cr.P.C. In support of this view reliance has been placed on Sant Lal Vs. Krishan Lal, and Budaraju Seshagiri Rao and Others Vs. T.V. Sarma and Another, . There is no reason why these authorities should not be made applicable to the facts of the present case. As such the petition is not maintainable.

The petition has, therefore, no force and is not maintainable. Stay order dated 20th April 1976 is vacated.