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Thilakan and ors. Vs. Sukumaran and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1162
AppellantThilakan and ors.
RespondentSukumaran and anr.
Cases ReferredMainal Haque v. Ganga Prosad
Excerpt:
- - 4. the learned advocate appearing for the first respondent submitted that the orders impugned are perfectly legal and within the jurisdiction of the magistrate; for determining whether process has to be issued or not, what the magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction, or whether the evidence disclosed on the examination of the witnesses is sufficient to prove the case aeainst the accused. the test is that at the initial stage, if there is 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;.....ask for quashing the complaint.5. the order passed by the magistrate on 20-3-79 is as follows:two witnesses present examined cwe. 1 and 2. the examination of these witnesses does not help the , complainant to prove his case against all the accused. posted for further examination of witnesses. posted to 10-4-1979. issue summons to no. 5.this, no doubt, appears. to be an unsatisfactory order. but the question is whether this amounts to an order under section 203 cr.p.c. in effect dismissing the complaint. the question of proving the case beyond reasonable doubt does not arise at this stage. what the learned magistrate has to isatisfv is whether of not there is sufficient ground for proceeding with the case. for determining whether process has to be issued or not, what the magistrate has.....
Judgment:
ORDER

S.K. Kader, J.

1. This revision petition is filed by the accused in S. T. No. 1/79 on the file of the Sub Divisional Judicial Magistrate, Kunnamkulam, seeking to revise an order passed by the Magistrate on 25-6-79 issuing summons to the petitioners or in the alternative, to quash the complaint.

2. The first respondent herein filed a private complaint before the court below against the petitioners alleging that they committed an offence punishable under Section 500, I.P.C. The Magistrate after taking cognizance on examining the complainant proceeded to conduct an enquiry under Section 202, Cr.P.C. and the case was posted for that purpose to a particular date on which date, although the complainant was present, as the document necessary for the purpose of the case had not been received from the office of the Deputy Superintendent of Police, the case was adjourned directing that the witness will appear, On that day, the complainant was absent and on his application the case was adiourned to another date, on which date as witnesses were absent, summonses were issued 'to witnesses 3 and 4 and the case was adiourned for the examination of the witnesses. On 20-3-79. the complainant and this two witnesses were present and they were examined as Cws. 1 and 2 and the case was posted for further examination of witnesses, and after two adjournments two more witnesses were examined. On 25-6-79. the Magistrate stating that he was of opinion ttat there was sufficient ground to proceed against the accused, issued summonses to the accused, directing the complainant to deposit the process fees.

3. The learned advocate appearing for the petitioner at the time of hearing submitted that really it is the order passed on 25-6-79 that is sought to be revised in this case and that it was under a mistake that this date was shown as 25-7-79 in the petition. The counsel very strongly contended that the learned Magistrate has gone bevond his jurisdiction in conducting an enauirv of this nature by issuing summons to witnesses; that the order passed on 20-3-79 is in effect an order of dismissal under Section 203 Cr.P.C. that there is no power of review conferred on him under any of the provisions of the Code of Criminal Procedure: that having found that no case was made out against the accused by his order dated 20-3-79, he should have dismissed the complaint, and that the continuation of the proceedings after 20-3-79 amounts to review of that order which is illegal.

4. The learned advocate appearing for the first respondent submitted that the orders impugned are perfectly legal and within the jurisdiction of the Magistrate; that Section 202 Cr. P. C confers ample power on the Magistrate to conduct an enquiry to find out the truth or falsity of the averment? in the complaint: that the learned Magistrate has not reviewed any of the orders passed by him as contended on behalf of the petitioners: that it is also not correct that on 20-3-79 he passed an order stating that no case has been made out against the accused and that the order passed on 20-3-79 cannot, in any view. be considered or treated as an order coming under Section 203, Cr.P.C. The counsel also submitted that in a proceeding of this nature, the revision petitioners cannot ask for quashing the complaint.

5. The order passed by the Magistrate on 20-3-79 is as follows:

Two witnesses present examined Cwe. 1 and 2. The examination of these witnesses does not help the , complainant to prove his case against all the accused. Posted for further examination of witnesses. Posted to 10-4-1979. Issue summons to No. 5.

This, no doubt, appears. to be an unsatisfactory order. But the question is whether this amounts to an order under Section 203 Cr.P.C. In effect dismissing the complaint. The question of proving the case beyond reasonable doubt does not arise at this stage. What the learned Magistrate has to isatisfv is whether of not there is sufficient ground for proceeding with the case. For determining whether process has to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction, or whether the evidence disclosed on the examination of the witnesses is sufficient to prove the case aeainst the accused. In order to come to this conclusion, the Magistrate is entitled to consider the allegations in the complaint, the sworn statement of the complainant, and the evidence recorded in the enquiry under Section 202, Cr. P.C. or statements recorded during an investigation under the said section, as the case may be.

6. It would appear that the Magistrate was under a misconception that in an enquiry of this nature, the evidence forthcoming should be of such a nature as is sufficient to prove the case against the accused, At this stage, the Maeistrate is not to weigh the evidence meticulously as if he were the trial court. The test is that at the initial stage, if there is 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 sav that there was no sufficient ground for proceeding against the accused : (see State of Bihar V. Rameish Singh : 1977CriLJ1606 . In any view, it is not possible to hold that the order passed by Maeistrate on 20-3-79 amounts to a dismissal of the complaint under Section 203 Cr.P.C. In the absence of such an order, there is no substance in the contention that the Magistrate has reviewed his previous order. After passing this order, the case1 underwent a. few adjournments and the complainant filed a fresh list of witnesses and from the1 list two were examined and it was only thereafter processes were directed: to be issued against the accused. Although the action of the Magistrate in this regard cannot be said to be illegal or one without jurisdiction. I am constrained to note that the manner in which the enteric was conducted by the Magistrate was unsatisfactory.

7. The other argument advanced on behalf of the petitioners is that there is no provision in the Code of Criminal Procedure to issue summonses to the witnesses to conduct an enquiry under Section 202 Cr.P.C. There is no provision in Section 202 which expressly states that the Magistrate conducting an enquiry under Sub-section (1) is empowered to issue summonses to witnesses to make them available for examination. According to the counsel for the petitioners, in an enquiry under Section 202(1) Cr.P.C. a Maeistrate is only empowered to examine only such witnesses who are present or are produced by the complainant and therefore the Magistrate has acted beyond his jurisdiction by issuing summonses to witnesses. There is not nine in Sub-section (2) of Section 202 indicating that the Magistrate is empowered to examine only witnesses who are present or witnesses who are produced. What Sub-section (2) states is that in an enauirv under Sub-section (1) the Magistrate may. if he thinks fit, take evidence of witnesses on oath. This enquiry, as stated earlier, is to find out whether there is sufficient ground for proceeding with the case and for this purpose, as is clear from Sub-section (2), witnesses can be examined on oath. That means the Maeistrate has got power to take evidence of witnesses on oath, irrespective of the fact whether those witnesses are persons present in court or produced in court by complainant or summoned by the Magistrate. If a Magistrate in his discretion finds that it is necessary for the purpose of an enquiry under this sub-section that witnesses should be summoned he can certainly summon the witnesses and examine them.

8. The scope of enquiry under Section 202(1) has been considered by the Supreme Court in Chandra Deo v Prokash Chandra : [1964]1SCR639 . It has been held in that case that one of the obiects behind Section 202 Cr.P.C. is to ascertain whether the allegations made in the complaint are intrinsically true and also ,to enable the. Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from beins called upon to face an obviously frivolous complaint. The counsel for the petitioners cited decisions in Dr. V. Naidu v. K. Janardhana AIR 1959 Mys 119 : 0-959 Cri LJ 620 : P.S. Rama-swami v. R. Viswanathan 1957 Cri LJ 673 (Mad) and Dattatraya v. Wadttal AIR 1958 Bom 335 : 1958 Cri LJ 1134; in support of his contention that 'the Magistrate has no power to issue summons and examine witnesses in an enquiry under Sub-section (1) of Section 202. The counsel for the first respondent cited a decision reported in Mainal Haque v. Ganga Prosad AIR 1957 Assam 7f : 1957 Cri LJ 504 in support of his contention that the Magistrate can conduct a thorough enquiry under this section and there is nothing in the section preventing issue of summonses and examination of witnesses. In Dr. V. Naidu's case AIR 1959 Mys 119 : 1959 Cri LJ 620 or in Dattatraya's case AIR 1958 Bom 335 : 1958 Cri LJ 1134 the question whether a Magistrate is empowered to issue summonses to witnesses and examine them in an enquiry under Section 202 Cr.P.C. never came up for consideration. So also this question did not come up for consideration and decision neither in P. S. Ramaswami's case 1957 Cri LJ 673 (Mad) nor in Mainal Haque's case AIR 1957 Assam 76 : 1B57 Cri LJ 504, where1 while dealing with an enquiry under Section 202 Cr.P.C. it was held that an enquiry within the meaning of Section 202 is not limited to and doe? not necessarily mean an enquiry by examining witnesses or by holding investigation into the case in any particular form and it was open to the Magistrate to enquire into the case in any manner that he could have adopted if the accused had been in attendance. In that case the Magistrate made a local inspection of the scene of offence. With respect I do not know how an accused would ordinarily be present or in attendance in an enquiry under Section 202 Cr.P.C. The very scheme of Chapter XVI of the Code shows that an accused has no filthy to be present or to take part in an enquiry until process is issued. The Magistrate has also no jurisdiction to permit an accused to participate in an enquiry under Section 202 Cr.P.C. This does not mean that an accused is precluded from being present, when an enquiry is held by the Magistrate. An accused can be present either in person or through his lawyer or agent with a view to be informed of what is going on against him. But as of right he cannot take part in an enquiry under Section 202. Cr. P.C; Although a Magistrate is empowered to put auestions to the witnesses examined in the enquiry with a view to find out the truth, it is not open to him to examine any witness at the instance of the accused or to put questions to witnesses at the instance of the accused. Regarding the prayer for quashing the complaint, the counsel 'Submitted that he would take appropriate steps in a separate proceeding for that purpose.

9. In the result this revision petition fails and is hereby dismissed.


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