BHAIYALAL Vs. STATE OF U.P.

JUDGEMENT

(1.) THESE are two connected petitions filed by different accused persons in the same case State v. Rajaram and others Criminal No. 47 of 1971 under Section 460/302, I.P.C. pending in the court of the Judicial Magistrate with the prayer that the criminal proceedings be quashed. In this case investigation was made by the police which submitted a final report. There was, however, a protest petition by Brijnandan Sharma, husband of the informant. The learned Magistrate then refused to accept the final report and instead took himself cognizance of the offence under Section 190(i)(c), Cr.P.C. and issued warrants for the appearance of the petitioners under Section 204, Cr.P.C. One of the accused persons Gajadhar had also filed a revision in the Court of Session on the ground that the issue of warrants against him was illegal and the learned Sessions Judge had made a reference (Cr. Reference No. 398 of 1973) to this Court recommending that the order of the learned Magistrate issuing warrants of arrest against Rajaram, Ramdas, Dhanni, Gajadhar and Jitendra Pratap be quashed and the learned Magistrate be directed to comply with the provisions of Chapter XVI of the Code of Criminal Procedure. Yashodanandan, J. rejected that reference by his order dated January 3, 1974. He took the view that cognizance was taken by the Magistrate under Section 190(i)(c) of the Cr.P.C. on the basis of the material before him. He had called for the record of the Magistrate and was satisfied that the police diary was before the Magistrate at that time. The learned Judge was, therefore, of the view that warrants would have been issued against the accused persons under Section 204, Cr.P.C. as there was sufficient material before the Magistrate who could have been satisfied on the basis of that material. The same point has now been sought to be repaginated in these petitions under Section 482, Cr.P.C. which have been filed by the accused persons other than Gajadhar. Learned counsel for the petitioners has argued that after the Magistrate has taken cognizance of the case under Section 19(i)(c), Cr.P.C. he should have followed the procedure regarding complaints as prescribed under Chapter XVI, Cr.P.C. (old). He relied on some old cases of the Calcutta High Court and Patna High Court in which it was held that when cognizance is taken on the basis of a protest petition, that protest petition amounts to a complaint. This controversy now stands finally settled by the Supreme Court in the case of Abhinandan Jha v. Dinesh Misra, A.I.R. 1983 S.C. 117 in which it was held that even when cognizance is taken by the Magistrate on the basis of a protest petition, the cognizance is taken under Section 190(i)(c), Cr.P.C.

(2.) LEARNED counsel for the petitioners has next argued that even when cognizance is taken under Section 190(i)(c), Cr.P.C., the case is to be tried as a complaint case and not as a police case and as such the entire procedure as laid down under Chapter XVI, Cr.P.C. had to be followed. In support of this contention, he has placed reliance on the case of Pradyum Narain Pandey v. State, 1968 A.L.J., p. 768 in which it has been held that in such a case procedure is to be followed as laid down under Section 252, Cr.P.C. and not under Section 251, Cr.P.C. There can be no dispute that the case in which cognizance is taken under Section 251(c), Cr.P.C. has to be tried as a complaint case with the only difference that the provisions of Section 191, Cr.P.C. are to be, applied. The accused has an option to get the case tried by a different Magistrate but the same Magistrate, who takes cognizance, can commit the case to the Court of Session. Once the case is committed to the Court of Session, there is no difference between the trial of a complaint case and the trial of a police case. During enquiry stage, an enquiry had to be made in such a case under Section 208, Cr.P.C. and not under Section 207(a), Cr.P.C. (Old). Section 208, Cr.P.C. similar to Section 252, Cr.P.C. provides that the complaint is to be examined (if any) and then the prosecution evidence is to be taken, But it cannot certainly be said that the entire provisions under Section 200, Cr.P.C. also apply to such a case when, in fact, there is no complaint. Similarly, under Section 202, Cr.P.C. (Old) it was optional for the Magistrate to take evidence of witnesses on oath. There was no bar in his issuing process under Section 204, Cr.P.C. without examining the witnesses if he was satisfied that there was sufficient material before him for taking cognizance under Section 190(i)(c), Cr.P.C. and for issuing processes under Section 204. In the present case, the Magistrate had reported in Criminal Reference No. 398 of 1973 that the case diary was before him when he took cognizance under Section 190(i)(c), Cr.P.C. It may be observed here that processes were issued prior to March 31, 1974 under the old Code of Criminal Procedure. After that stage the Magistrate had to conduct an enquiry under Chapter XVIII, Cr.P.C. (Old). No doubt, now that enquiry has to be dealt with under the provisions of the Code of Criminal Procedure, 1973, that is, Chapter XVI. It may be observed herd that Section 208, Cr.P.C. (New) provides that copies of the statements recorded under Section 161, Cr.P.C. can be supplied even in a case which is instituted otherwise than on the police report. The learned Magistrate, no doubt, should take action under this section and order copies of such statements to be supplied on which the prosecution relies. It is not a case in which it can be said that cognizance was taken simply on the basis of an application when no evidence was available either in the form of statements recorded by the police officer or the statements of the witnesses recorded in court under Sections 200 and 202, Cr.P.C.

(3.) He, therefore, argued that under the new Code of Criminal Procedure it is mandatory that all the witnesses, should be examined on which the complainant relies. In the first place, this provision is no more available to the petitioners because that stage has crossed and warrants had already been issued under Section 204, Cr.P.C. (Old). Further enquiry has now to be made under Chapter XVI, Cr.P.C. (New) in the second place, this sub -section provides that the complainant can be required to produce all his witnesses. But in case where there is no complaint and the court itself has taken cognizance under Section 190(i)(c), Cr.P.C., it is doubtful if it can still be said that the complainant should be required to produce all the witnesses. No doubt, it is always open to the Magistrate to examine any such witness which he deems necessary before proceeding under Section 204, Cr.P.C., It is significant that under Section 244, Cr.P.C. (New) the words now used are 'The Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution'. It is not provided that the complainant is to produce his evidence. That provision relates to warrant trial on the basis of the complaint. The procedure can be followed in both the cases covered by Section 190(i)(c), Cr.P.C. and covered by Section 190(1)(a), Cr.P.C. The provisions of law are to be interpreted rationally. As such only such provision can be made applicable to the enquiry or trial in a complaint case in which cognizance is taken under Section 190(i)(c), Cr.P.C. which can rationally be applied. In my opinion, no illegality has been committed by the Magistrate in this case in issuing process under Section 204, Cr.P.C. only on the basis of the material which was before him in the form of case diary. I respectfully agree with the view taken by Yashodanandan, J. in above cited Cr. Reference No. 398 of 1973 and I see no reason to refer the case to a Division Bench as was prayed for.