Skip to content


Nirod Chandra Misra Vs. Dijabara Swain - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 501 of 1981
Judge
Reported in57(1984)CLT124; 1984(I)OLR117
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 202, 203 and 204
AppellantNirod Chandra Misra
RespondentDijabara Swain
Appellant AdvocateDevanand Misra, Deepak Mishra and R.N. Naik
Respondent AdvocateB.K. Sahu and P.K. Sahu
DispositionPetition allowed
Excerpt:
.....court has not applied his judicial mind to the facts of the case which is apparent from the fact that even though the enquiring magistrate clearly stated that there is no prima facie case against 7 of the accused persons, processes have been issued against all the accused persons without assigning any reason whatsoever......registered as i, cc. case no. 318 of 1981.2. this revision is directed against an order of the chief judicial magistrate, cuttack dated 31-8-1981 by which the learned chief judicial magistrate issued processes against the present petitioner and some others.3. the opposite party dijabara swain lodged an f. i. r. in the sadar police station, cuttack alleging that the present petitioner along with lingaraj acharya, charulata panda, aparna devi and saila came in a vehicle and asked his wife to vacate the house. it is further alleged that charubal a caught hold of the hand of the wife of the complainant and lingaraj opened a bottle and threw something which, however, did not fall on his wife as she closed the door and went inside. it is also alleged that one gandharba sahu, the.....
Judgment:

P.C. Misra, J.

1. The petitioner is an accused in the complaint case registered as I, CC. Case No. 318 of 1981.

2. This revision is directed against an order of the Chief Judicial Magistrate, Cuttack dated 31-8-1981 by which the learned Chief Judicial Magistrate issued processes against the present petitioner and some others.

3. The opposite party Dijabara Swain lodged an F. I. R. in the Sadar Police Station, Cuttack alleging that the present petitioner along with Lingaraj Acharya, Charulata Panda, Aparna Devi and Saila came in a vehicle and asked his wife to vacate the house. It is further alleged that Charubal a caught hold of the hand of the wife of the complainant and Lingaraj opened a bottle and threw something which, however, did not fall on his wife as she closed the door and went inside. It is also alleged that one Gandharba Sahu, the Brother-in-law of the complainant was stabbed on the upper portion of the left eye by the petitioner. The matter was investigated by the police who submitted a final report stating that the case was a false one. The complainant thereafter initiated the above mentioned case and thereupon the Chief Judicial Magistrate, Cuttack passed an order for enquiry under section 202 Cr. P. C. by a Judicial Magistrate, First Class, Cuttack. The enquiring Magistrate Submitted his report dated 19-8-1981 in which he came to a conclusion that there is no prima facie case against the accused Sailasuta, Aprna, Sunita, Kadambari, Gobinda, Maheswar and Ashoka. He however, concluded that there is a prima facie case against the accused Niroda (present petitioner) under section 448/324 I. P. C. and against Lingaraj and Charulata under section 352 I. P. C. The report is silent as to the accused Mukunda Hati. After receipt of the report the Chief Judicial Magistrate has passed the impugned order, the text of which is as follows :

'6. 31-8-81. The report of the enquiring officer seen. Perused the Petition filed by the complainant. This case is a counter case to G. R. 2890 of 79. I am in agreement with the petitioner's advocate. There being prima facie case against all the accused persons Under-section. 147/448, 324/352/149 I. P. C. Cog. taken thereunder, Issue summons to the accused persons fixing 18-9-81 for appearance.

Requisite at once.

Sd/-Illegible.

C. J. M'.

4. The petitioner in this revision has challenged the aforesaid order of the Chief Judicial Magistrate mainly on the ground that the learned court has not applied his judicial mind to the facts of the case which is apparent from the fact that even though the enquiring magistrate clearly stated that there is no prima facie case against 7 of the accused persons, processes have been issued against all the accused persons without assigning any reason whatsoever.

5. In order to appreciate the point canvassed in this revision it is necessary to deal with the powers of the Magistrate under the relevant provisions of the Criminal procedure Code.

6. Section 202 of the Criminal Procedure Code provides that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer, or by such other agency as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The enquiry report is to be taken into consideration by the Magistrate diracting the enquiry under section 202 and if he is of the opinion that there is no sufficient ground for the proceeding he shall dismiss the complaint in exercising the powers under section 203 Cr. P. C. and in such event he shall briefly record his reasons for so doing. Section 204, Cr. P. C. regulates the issue of process where there is sufficient ground for proceeding against the accused persons.

Sections 203 and 204 Cr. P. C. read together would suggest that the law does not expressly require the Magistrate to record the reasons for proceeding under section 204 whereas section 203 of the Code in express terms requires the Magistrate to record reasons for his dismissal of the complaint.

It must be remembered that once an enquiry under section 202 of the Code has been ordered, it is for the obvious reasons that the Magistrate did not think it fit to issue process on the basis of the sworn statement of the complainant read with the complaint petition and thought it fit to enquire into the matter further to enable itself to arrive at a conclusion as to whether. there is sufficient ground for proceeding against the accused. Therefore, while forming an opinion as to whether there is sufficient ground for proceeding, the Magistrate is bound to take into consideration to result of the enquiry held under section 202. Thus, after receipt of the enquiry report, the Magistrate is bound to consider whether the process shall be issued or not.

In forming such an opinion the approach of the Magistrate must be the same whether he dismisses the complaint holding that there is no sufficient ground for procceeding or issues process because there is sufficient ground for doing so. In other words, irrespective of whether he is required to record the reasons or not, the approach of the Magistrate shall be the same where he dismisses the complaint under section 203 or issue process under section 204.

There is no dispute that the Magistrate must apply his judicial mind to the materials on record on the basis of which he is to form an opinion as to whether the process should be issued or not. If the Magistrate passes an order mechanically and without applying his judicial mind to the enquiry report and the evidence on record, the order issuing process cannot be sustained.

7. In the present case the enquiry was conducted by a Magistrate, First Class, who, considering the evidence of witnesses examined before him, came to a conclusion that there is no prima facie case whatsoever against 7 of the accused persons named above. The report is silent about one of the accused persons. The enquiring Magistrate was of the opinion that 3 of the accused persons can be proceeded against, one under section 448 and 324 I. P. C. and two under section 352 I. P. C. In the impugned order, the learned Chief Judicial Magistrate records that he has perused the report of the enquiring officer and also the petition of the complaint. He makes a mention that this is a case counter of G. R. Case No. 2890. of 1979. He further mentions that he is in agreement with the petitioners Advocate, though text of the contention of the petitioner's Advocate does not find mention. Thereafter he jumps to a conclusion that process should be issued against all the accused persons under sections 147/448 324/352/149 I. P. C. Wide discretion has been given to the Magistrate with respect to grant or refusal of the process. This discretion should be exercised with caution evidently because an accused person against whom there are no materials ought not to be dragged into the court to answer to the charga merely because the complainant has named him in the complaint petition. The impugned order does not show that the learned Chief Judicial Magistrate had applied his judicial mind to the facts available on record.

Even though section 204 Cr. P. C. does not cast any obligation on the Magistrate to record the reasons for his satisfaction for the issue of the process, the circumstances of the case demand that the learned Chief Judicial Magistrate should have indicated the reason for forming an opinion entirely different from that of the enquiring Magistrate. The order may not be vitiated on account of the fact that no reasons have been assigned but at the same time it does not disclose as to whether the learned Chief Judicial Magistrate had applied his juditial mind to the question issue.

8. I have no hesitation to conclude that the learned Chief Judicial Magistrate has not applied his judicial mind while forming an opinion to issue process against all the accused persons. I, therefore, allow the revision, set aside the impugned order and direct the Chief Judicial Magistrate to determine as to whether he should issue process and if so against all or which of the accused persons in accordance with law. There would be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //