Vijayamma vs State of Kerala

T.M. Hassan Pillai

The revision petitioner filed a complaint before the Judicial First Class Magistrate Court-II, Attingal and the allegation made therein is that there is an ancient pathway having a width of 11/2 meters passing along the northern side of accuseds'' property and recently the local people and the panchayat attempted to widen the width of that pathway. That attempt was obstructed by the accused persons. The accused persons entertained suspicion that it was at the instance of the complainant and her husband the Panchayat and the local people made attempt to widen the pathway and they were on bitter inimical terms with her and her family members. On 28-1-2000 while she (petitioner) was returning after viewing Television at about 8.40 p.m. i.e., when she reached the boundary separating her property from accuseds'' property 1st accused wrongfully restrained her asking her

and she was attacked with the handle of a spade. She was beaten with the handle of a spade on her shoulder and chest. On receiving the beating she fell down and the 2nd accused caught hold of her tuft of hair and snatched away the gold chain (weighed 11/2 sovereigns) worn by her. She cried aloud and on hearing her outcry her husband rushed to the spot. On seeing her husband the accused persons fled away. Sworn statement of the complainant was taken by the learned Magistrate and in support of her case the complainant examined her husband as a witness. She also got examined on her side the doctor who examined her and marked Ext. P1 injury certificate. It is evident from the injury certificate produced that the complainant sustained the injuries noted therein on the alleged date of occurrence of the incident.

The question that is to be considered is whether the order impugned dismissing the complaint under Sec. 203 Cr.P.C., is liable to be interfered with invoking the revisional jurisdiction of this court.

Before proceeding to consider that question the law laid down by the Supreme Court in various decisions rendered is to be borne in mind. Responsibility and duty lies on the magistracy to find before issuing process to an accused whether the concerned accused should be legally responsible for the offence charged for. Only after the Magistrate is satisfied that the law casts liability or creates offence against the juristic persons or the persons impleaded, process is to be issued. The settled legal position is that at that stage the court would be circumspect and judicious in exercising direction and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complainant as vendetta to harass the persons needlessly. Prime object of criminal justice is vindication of majesty of justice and maintenance of law and order in the society. It should not be the means to wreak personal vengeance ( Punjab National Bank and others Vs. Surendra Prasad Sinha, .

Under Sec. 200 Cr.P.C., a Magistrate can take cognizance of the offence made out and then he has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. In order to find out whether there is sufficient ground or not for proceeding such examination is provided. The words used under Sec. 203 are ''sufficient ground'' and that words have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.

Referring to the scheme of Secs. 200 and 203 Cr.P.C. in Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, , the Supreme Court explained the legal position thus:

The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial.

The first part of Sec. 203 Cr.P.C. lays down the materials which the Magistrate must consider, and the second part says that if, after considering those materials, in his judgment, no sufficient ground for proceeding, he may dismiss the complaint. While setting aside the enquiry conducted under Sec. 202 Cr.P.C. by the magistrate, the apex court held in Bhagirathsinh Judeja Vs. State of Gujarat, that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Apex court further observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused. Unless the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case.

While dealing with the scope of enquiry under Sec. 202 Cr.P.C., the Supreme Court has held in Smt. Nagamma v. Veeranna Shivalingappa Kanjalgi and others (1978 (3) SCC 738) that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. The Supreme Court indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case "being "where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.

All that the Magistrate has to do at the stage of Sec. 203 and 204 Cr.P.C. is to see whether, on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Secs. 200 and 202 Cr.P.C., there is prima facie evidence in support of the charge leveled against the accused. He has to see whether or not there is "sufficient ground for proceeding" against the accused. The Magistrate is not to weigh the evidence meticulously at that stage as if he were the trial court. Magistrate is to adopt in scrutinizing the evidence the standard which is not the same as the one which is to be kept in view at the stage of framing charges. It is also settled law that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judge. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. At the stage of Sec. 202 or 204 Cr.P.C., if there is prima facie evidence in support of the allegations in the complaint that will be a sufficient ground for issuing process to the accused ( Kewal Krishan Vs. Suraj Bhan and Another, .

Object of the provisions of Sec. 202 Criminal Procedure Code is to enable the magistrate to form an opinion as to whether process should be issued or not. The Magistrate at that stage has to see whether there is evidence in support of the allegations made in the complaint and not whether the evidence is sufficient to warrant a conviction. The function of the Magistrate holding the preliminary enquiry is only to be satisfied that a prima facie case is made out on the materials placed before him by the complainant ( Om Prakash Vs. State of Haryana, .

10 In Rosy and Another Vs. State of Kerala and Others, the following observation has been made by the Supreme Court:

Further, it is settled law that the inquiry under Sec. 202 is of a limited nature. Firstly, to find out whether there is a prima facie case in issuing process against the persons accused of the offence in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose being of finding out "whether or not there is sufficient ground for proceeding against the accused". The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Sec. 202 Cr.P.C. the accused has no right to intervene and that it is the duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. ( Chandra Deo Singh Vs. Prokash Chandra Bose and Another, , Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 160 SC 1113 , Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, , Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, and Mohinder Singh Vs. Gulwant Singh and others,

Applying the above laid down principles, it cannot be held that the learned Magistrate is justified in dismissing the complaint under Sec. 203 Cr.P.C. It appears that the evidence adduced before the magistrate by the complainant is not self-contradictory or intrinsically untrustworthy. There is material to show that the complainant sustained injuries on the fateful night. The ground found favour with the magistrate for dismissing the complaint appears to be not sustainable. The course open to this court under Sec. 398 Cr.P.C. is to direct further inquiry by the Chief Judicial Magistrate, Thiruvananthapuram into the complaint dismissed under Sec. 203 Cr.P.C.

In the result, the revision is allowed and the learned Chief Judicial Magistrate is directed to make further inquiry into the complaint in accordance with law.