DUDH NATH MISHRA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Petitioners, ten in number, have filed this petition under S. 482 of the Code of Criminal Procedure, 1973, (for short the Code) challenging the order of the learned Additional Chief Judicial Magistrate, Jaunpur taking cognizance of the offence under Ss.147/148/149/323/307/427/504/506 I. P. C. in a complaint case No. 557 of 1990.

(2.) Since question of law is only involved, it is not necessary to delineate the factual aspects of the case. The question raised is whether in a case arising out of complaint triable by the court of session, it is incumbent upon the Magistrate to examine all witnesses named in the complaint petition in the enquiry held under S. 202 of the Code. In the case on hand, there were in total sixteen witnesses mentioned in the complaint petition, out of whom complainant respondent No. 2 examined twelve during enquiry. Complaining that there was non-compliance of the statutory provision as envisaged in the proviso to the said section and thus the order of taking cognizance of the offence was bad in law, the petitioner moved the learned Sessions Judge in revision which did not yield the desired result. As second revision was not maintainable at the instance of the petitioners in view of the bar created by Section 397(3) of the Code, they filed the present case to quash the revisional order in exercise of inherent power. To answer the question, it is desirable to refer to the relevant provisions of the Code laying down the procedure to deal with the cases arising out of a complaint.

(3.) Under S. 200, it is imperative for the Magistrate taking cognizance of the offence on a complaint to examine upon oath the complainant and the witnesses present, if any. He, however, need not follow such procedure if complaint is made by a public servant acting or purporting to act in discharge of his official duty or in cases where complaint is made by the court. The next relevant provision is S. 202, which comes into play when the Magistrate does not trust upon the version of the complainant and his witnesses and decides that he would not be justified in issuing process without holding enquiry to ascertain whether the allegations are prima facie true or not. If he takes such a decision and postpones issue of process, then he shall either make enquiry himself or direct investigation by the police or by any other person. At the stage of enquiry what the Magistrate is required to see whether there is evidence in support of the allegation to proceed against the accused and not whether evidence is sufficient to warrant conviction. So, if evidence adduced during enquiry prima facie makes out an offence, the Magistrate without passing a detailed order shall issue process to the accused under S. 204. On the other hand, if the result of the enquiry does not show sufficient ground for proceeding with the case, he shall briefly record reasons to that effect and dismiss the complaint.