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Abdul Nabi Vs. Gulam Murthuza Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 356 of 1965 and Criminal Revn. Petn. No. 327 of 1965
Judge
Reported inAIR1968AP93; 1968CriLJ303
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 200, 201, 202, 203, 204, 252, 252(1), 253, 253(1) and 253(2); Indian Penal Code (IPC), 1860 - Sections 420
AppellantAbdul Nabi
RespondentGulam Murthuza Khan and anr.
Appellant AdvocateH.S. Gururajrao and ;N. Madhusudhanaraj, Advs.
Respondent AdvocateM.A. Khader, Adv. and ;C. Padmanabhareddy, Adv. for Public Prosecutor
DispositionPetition dismissed
Excerpt:
.....1898 - respondent's complaint against appellant dismissed without recording any evidence - revision petition filed - petition decided in respondent's favour and enquiry directed - appeal filed against enquiry - complaint can be dismissed only after fulfillment of provisions of section 203 and after all evidences recorded - enquiry rightly directed as complaint not examined and evidences not recorded. - - what must, however, be clearly understood from the facts of the case mentioned in the judgment is that in that case the magistrate had recorded the statement of the complaint obviously after the accused had put in his appearance. i am, therefore, satisfied that the learned sessions judge has not committed any error in directing enquiry in the present case......complaint against the petitioner under sections 420 and 406 i. p. c., alleging certain facts. the learned magistrate before whom the complaint was filed, recorded the statement of the complainant under section 200 cr. p. c., took cognizance of the case under section 420 i. p. c. only, and issued summons to the accused.3. on appearance of the accused, he raised an objection that the facts as disclosed in the complaint do not make out any offence, and that the magistrate has no jurisdiction, to try the case. the learned magistrate upheld the contentions of the accused and dismissed the complaint and discharged the accused.4. the complainant, dissatified with that judgment took the matter in revision to the chief magistrate, hyderabad. the learned judge allowed the revision petition and.....
Judgment:
ORDER

1. The short question which must necessarily be answered in this enquiry is whether a Magistrate can, under Section 253(2) Cr. P C., discharge the accused even after the accused has put in his appearance in response to the summons issued, but without taking any evidence whatsoever under Section 252 Cr. P. C.

2. The necessary facts are that the respondent filed a complaint against the petitioner under Sections 420 and 406 I. P. C., alleging certain facts. The learned Magistrate before whom the complaint was filed, recorded the statement of the complainant under Section 200 Cr. P. C., took cognizance of the case under Section 420 I. P. C. only, and issued summons to the accused.

3. On appearance of the accused, he raised an objection that the facts as disclosed in the complaint do not make out any offence, and that the Magistrate has no jurisdiction, to try the case. The learned Magistrate upheld the contentions of the accused and dismissed the complaint and discharged the accused.

4. The complainant, dissatified with that judgment took the matter in revision to the Chief Magistrate, Hyderabad. The learned Judge allowed the revision petition and directed enquiry into the complaint. His opinion was that the learned Magistrate was not justified in dismissing the complaint and discharging the accused without recording any evidence in the case. It is this view of the learned Sessions Judge that is now challenged in this revision petition.

5. The principal contention of Sri Gururajrao, the learned counsel for the petitioner is that in view of Section 253(2) Cr. P. C. the Magistrate was empowered to dismiss the complaint even without recording any evidence. He relied on in support of this contention the following wording in sub-section (2) of Section 253 Cr. P. C.

'At any previous stage of the case.'

He sought support for this contention from a decision of this Court in R. M. D. Chamarbaugwallah v. M. Ramachandra Rao, 1957-2 Andh WR 368.

6. In order to appreciate this contention, it is necessary to understand the scheme of the Criminal Procedure Code, and the implications of Section 253(2) Cr. P. C.

7. Chapter XVI relates to the complaints filed before the Magistrate. Under Section 200 Cr. P. C. a Magistrate taking cognizance of an offence on complaint, has at once to examine the complainant and the witnesses present, if any, upon oath, and has to reduce the substance of the examination to writing which is required to be signed by the complainant and the witnesses. If the Magistrate, before whom, the complaint in writing is made is not competent to take cognizance under Section 201, he has to return it for presentation to the proper Court. It is Section 203, which is relevant for our purposes. According to that section, the Magistrate before whom a complaint is made, may dismiss the complaint after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under Section 202; if (sic) in his judgment there is no sufficient ground for Proceeding, he shall briefly record his reasons for so doing. It is under Section 204 that if the Magistrate taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding, he can issue the summons in view of the nature of the case. It is thus clear that the first stage in a complaint filed by a private person for its dismissal is under Section 203. Once that stage is passed, then the second landing is only under Section 253(2) Cr. P. C. There is no stage in between at which the Magistrate, who has taken cognizance of the case, can dismiss the complaint. It is true that die language of Section 253(2) is somewhat wide but its connotation has to be understood by reading Sections 252 and 253 together. It will be seen that under Section 252 Cr. P. C. it is made incumbent upon the Magistrate to proceed after the accused appeared before him to hear the complaint (if any) and take all such evidence as may be produced in support of the prosecution. In Section 253 Cr. P. C. reference is made to this duty of the Magistrate referred to in Section 252, that is to say, to hear the complaint (if any) and take all such evidence as may be produced in support of the prosecution. Sub-section (2) of Section 253, however, empowers the Magistrate to discharge the accused at any previous stage of the case, if, for reasons to be recorded, he considers the charge to be groundless. What then is the meaning of the phrase 'at any previous stage of the case' obviously, has to be understood in the light of sub-section (1) in which reference to Section 252 is made. Sub-section (1) expressly refers to 'the duty of the Magistrate to take all the evidence referred to in Section 252, and it is in juxtaposition of this duty that Section 252 empowers the Magistrate to discharge the accused at any previous stage of the case. It can only mean that after the stage of Section 203 is passed, but some evidence is recorded under Section 252 and before all the evidence referred to in Section 252 is recorded the Magistrate can discharge the accused. Any other interpretation would be derogatory to the scheme of the Act and is likely to create anamolous situation. I am thus clear that after the stage of Section 252 is passed, the Magistrate can discharge the accused in a complaint only in a case where he records either the statement of the complainant in the presence of the accused, or records some evidence but has not completed the recording of all the evidence as may be produced in support of the prosecution. I do not think, he can dismiss the complaint and discharge the accused before recording any evidence whatsoever under Section 252 Cr. P. C. That will not only militate against the natural conclusion which must follow from the reading of Sections 203 and 204 but would be contrary to Sections 252 and 253 Cr. P. C. themselves.

8. I do not think, the decision in (1957) 2 Andh WR 368, is in any way contrary to what I have stated before. In (1957) 2 Andh WR 368, Srinivasachari J. observed :--

'The Section 253(2) as is worded would make it clear that there is nothing to prevent the Magistrate from taking the step of closing the case and discharging the accused immediately after filing of the complaint if he feels that the charge is groundless . .'

This observation, it is true, creates an impression that power under Section 253(2) can be exercised immediately after the filing of the complaint. But I do not think that the impression can be correct. The dismissal of the complaint immediately after it is filed is possible only under Section 203 Cr, P. C. From a reading of the said Judgment, it is clear, however, that not only the Magistrate had taken cognizance but had issued summons to the accused; the accused appeared and had pleaded not guilty and raised certain plea regarding the jurisdiction and maintainability of the complaint. What must, however, be clearly understood from the facts of the case mentioned in the judgment is that in that case the Magistrate had recorded the statement of the complaint obviously after the accused had put in his appearance. If this essential fact is kept in view, the decision in the case can easily be understood in the light of Section 253(2) Cr. P. C. The above said observation, therefore, has to be understood in the context of this essential fact. The learned Judge, therefore, was right, if I may say so with due respect, in holding that after examining the complainant under Section 252, if the Magistrate reaches the conclusion that the charge is groundless, he can discharge the accused under Section 253(2). That is the view which has been taken in another case of this Court in Madriyala George Solomon v. Rev. Ch. Luke, 1962-2 Andh LT 348 = (1963 (1) Cri Lj 347). No case was brought to my notice which decides that after the accused is summoned and he appears, without recording any evidence as is visualised by Section 253(1), the Magistrate can discharge the accused, in view of the language employed in Section 253(2) Cr. P. C. I am, therefore, satisfied that the learned Sessions Judge has not committed any error in directing enquiry in the present case. Admittedly, the complainant was not examined nor any evidence recorded. The learned Magistrate could not have, therefore, dismissed the complaint and discharged the accused at that stage.

9. For the aforesaid reasons, I do not find any substance in this petition. The petition is dismissed.


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