S NIHAL SINGH Vs. ARJUN DAS

JUDGEMENT

(1.) The next submission made by the learned counsel for the petitioners is that the impugned order betrays total non application of judicial mind by the learned Magistrate. This contention is sub divided into three parts. In the first instant it is urged that on a bare reading of the news item in question it is manifest that Miss Khiangte had lodged a complaint against the respondent at Vinay Nagar police station and a case of obstructing public servant in the performance of his official duties was registered against him. Thereafter she submitted an inspection note to the higher authorities giving details of the incident. This could b; well noticed by the learned Magistrate while going through the offending news items. It was thus obligatory on the part of the Magistrate to call for both these documents, one from the police station which was in his own jurisdiction and the other from Delhi Administration in order to verify true facts. The argument put forward precisely is that while holding a preliminary enquiry u/s 202, the Magistrate need not confine himself to the evidence adduced by the complainant and he is free to hold any kind of enquiry which he deems fit in order to as- certain the truth/falsehood of the allegations contained in the complaint before dismissing the same u/s 203 or issuing the process u/s 204 of the Code. On. the other hand the counsel for the respondent has urged vehemently that no obligation was cast on the Magistrate to summon the FIR or the inspection note as urged by the petitioners' counsel. He has canvassed that the Magistrate could not be expected to summon documents which would constitute virtually the defence of the accused inasmuch as it would have amounted to prejudging the guilt/innocence of the accused.

(2.) On a bare reading of S. 202 of the Code, it is manifest that the Magistrate may either enquire the case himself or direct the enquiry to be made by a police office or by such officer as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The object of an enquiry or investigation under this section is to ensure that no person shall be compelled to answer a criminal charge unless the court is satisfied that there is prima-facie case for proceeding and issuing a process against the accused person. In other words enquiry/ investigation envisaged therein is to prevent abuse of the process of court by throwing out at the threshold a false and frivolous complaint. As observed by the Supreme Court Chandra Deo Singh V. Prakash Chandra Bose, AIR 1963 SC 1340, "it is the bounden duty of the Magistrate while making an equiry to elicit all facts not merely with a view to protect the interests of an absent accuse 1 person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial". The later observation was apparently made by the Supreme Court in the context of the question whether the accused has a right to take part in the proceedings at the stage of enquiry us 202 and their Lordships held in unequivocal terms that "he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so". The learned counsel for the respondent has invited my attention to the following further observations which were made by their Lordships while dealing with this aspect of the matter.

(3.) The second limb of the contention of the petitioners' counsel as regards non-application of judicial mind by the Magistrate is that he has misread and mis-quoted each and every sentence in the impugned order which he considers to be prima facie defamatory. For instance instead of the sentence "in her complaint she said that Mr. Arjun Dass had used abusive language and intimidated her" as appeared in the newspaper reports, the learned Magistrate has simply reproduced "Mr. Arjun Dass had used abusive language and intimidated her" thus omitting the preceding words" in her complaint she said that". This according to the learned counsel for the petitioners leaves an impression in one's mind that the aforesaid insinuation against the respondent was made by the reporter of the news and not by the complainant Miss Khiangte. Similarly according to the report "Miss Khiangte said that Mr. Arjun Dass had asked the checking party not to collect oil sample from the shop and snatched the sample lifted from the shop". However the insinuation, as reproduced in. the impugned order is bereft of the opening words "Miss Khiangte said that". The submission. made by the learned counsel for the petitioners, therefore, is that the learned Magistrate while recording the impugned order was all along labouring under the impression, that defamatory imputation and insinuation was made by the newspaper and not by Miss Khiangte whose report forms the very basis of the offending news items. It is no doubt true that the learned Magistrate has not reproduced the offending excerpts from the report appearing in the newspaper with exactitude but that will not necessarily reflect on non-application of the judicial mind. It may aswell be for the reason that he did not care to compare and tally the quotations in the impugned order with the original news items. At any rate this lapse on his part will not warrant an inference that the misquoting has stemmed from misreading of the offending news items.