OM PRAKASH ALIAS NANKAU Vs. RUDRA MANI PANDEY

JUDGEMENT

(1.) This is an application. under Section 482 Cr. P. C. praying that the order of the Magistrate dated 17. 10. 84 summoning the accused in a complaint case, be set-aside. Those accused who have been summoned, have filed the present application. It appears from the copy of the complaint filed by the opposite party and annexed with this application that the Opposite Party lodged a F. I. R. It was registered as F. I. R. of non-cognizable case under Sections 323, 504 and 506 I. P. C. This F. I. R. was lodged on 10. 12. 81 in respect of an incident occurred on the same day. . About this F. I. R. , it has been said in the complaint that it was not-recorded correctly. In the complaint, it was said about the incident that the accused assaulted him with lathi with intention to kill, but he was saved. When the police did not take any action, then on 15. 12. 81 an application was given by the complainant to the Superintendent of Police saying that the offence comes within the purview of Section 308 I. P. C. and police be directed to investigate it. S. P. was not there and CO passed an order to take further proceeding in the matter. Still, the Sub-Inspector did not do anything. Then on 17. 12. 81, the com plainant gave an application to the Magis trate under Section 155 Cr. P. C. The Magis trate passed an order to investigate the case, but nothing happened. On 2. 7. 84, the complainant gave an application for issuing a reminder to the police. Then the police gave a report on 9. 7. 84, according to the copy of the complaint on record on 6. 7. 84 according to the learned counsel. In this report, the police said that the matter could not be enquired into as it had become time-barred. The complainant came to know of it on 20. 7. 84, when the Magistrate passed an order that he would not take any action against the police but the complainant could file a complaint. It was, thereafter that on 21. 7. 84 the present complaint was filed. The argument of the learned counsel for the applicants is that there is injury report, which shows simple injuries and the offence is only under Section 323, 504 and 506 I. P. C. the limitation for when had expired when the complaint was tiled and in fact there is no offence under Section 308 I. P. C. , under which the applicants have been summoned. It is on this ground that it is being prayed that the proceedings of the lower court be quashed. It is written in the complaint that assault was made with intention to kill. Even for an offence under Section 308 I. P. C. , it is not the requirement that there must be some injury and what is important is the intention to kill so, it will not be possible to say that from the complaint, the offence under Section 308 I. P. C. cannot be spell out. Another point is that in the non-cogni zable report, all that is dictated by a com plainant is not written and only substance is written and from the very beginning the complaint has been agitating that his report was not written correctly. Police was also directed to investigate, but it did not initially investigate the case and then started saying that the matter had become time-barred. When this position came to the knowledge of the complaint he filed a complaint. So, this is not a case where the complainant has been sitting idle and as an after thought, after expiry of limitation, he started saying that there was an offence under Section 308 I. P. C. Statement of a witness Jai Ram also appears to have been recorded under Section 202 Cr. P. C. Therein it has also been said "mar lo Jane na paye". It can also be interpreted as killing or beating. So there is support 'that it was said at the time of incident that the person concerned should be killed. In the case of Municipal Corpora tion of Delhi v. Ram Kishan Rohtaqi (1983) 1 SCC 1 S. C the Supreme Court observed. "it is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will" be justified in quashing the proceed ings in exercise of its powers under Section 482 of the present Code. " In the case before us, if we not add or subtract anything, then the allegation is that the assault was made and injuries were caused with intention to kill. Another argument is that the Magistrate h s said that a prima facie case for the offence punishable under Sees. 308, 504 and 506 I. P. C. , seems to have been made out. Accord to the learned counsel for the applicants, Ire use of word 'seems' shows that the Magistrate himself is not certain whether an offence under Section 308 I. P. C. has been committed. In Section 204 Cr. P. C. it has not been said that the Magistrate should be satisfied that a certain offence has been committed before issuing summons; rather Section 204 Cr. P. C. says that if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he shall proceed and take further action. From the use of the words "there is sufficient ground for proceeding", it appears that there should be just a prima facie case. That is exactly what appears "o mean by the use of word 'seems' and that the Magistrate has also said that a prima facie case appears to be there. In State of Himachal Pradesh v. Krishna Lal Pradhan (1987) 2 SCC 17 regarding ' framing of charge, it has been said by the Supreme Court that "all that is required at the stage of framing of charges is to see whether a prima facie case regarding the commission of certain offence is made out. The question, whether the charges will eventually stand proved or not, can be determined only after the evidence is recorded in the case". If that is the standard for framing of charges, the standard for issuing the processes cannot be more strict. In A. K. Subhaiah v. State of Karnataka (1987) 4 SCC 587 the Supreme Court observed: "it is therefore, clear that when the issue of process is challenged in the revision petition before the High Court, what the High Court is exported to see as to whether the complaint and the papers accompanying the complaint prima facie indicate that an offence is maze out". In this case, nr pointed out earlier the complaint and papers accompanying it do show it. Thus it is felt that at. the time of issuing processes what the court is required to find out is whether a prima facie case has been made out. It need not and should not determine the adequacy of the evidence to prove the guilt of the accused. In the case of Raghubir Sinqh v. State of Bihar (1986) 4 SCC 481 the Supreme Court observed: "it was strenuously contended by Shri Jethmalani that there was no imaterial whatsoever to warrant the framing of charges for any of the offences mentioned in the charge-sheet other than Section 165-A. We desire to express no opinion on this question. It is not a matter to be investigated by us in a petition under Article 32 of the Constitution, we wish to emphasise that this Court cannot con vert of a Magistrate or a Special Judge to consider whether there is evidence or not justifying the framing of charges. " It is felt that almost the same principle should apply in proceedings under Suction 482 Cr. P. C. and if there is prima facie evidence, this Court should not convert itself into the court of a Magistrate to examine whether the evidence is sufficient or not and it should be left to the discretion of the Magistrate. In the case of Kacheru Singh v. State of Uttar Pradesh (1982) 3 SCC 218, the Supreme Court refused to interfere at the stage of summons being issued. The learned counsel for the applicants has pointed out that when the complainant applied to the Magistrate regarding taking action against the police, the Magistrate permitted the complainant to file a complaint under second bail (?) of Section 506 and not under Section 308 I. P. C. I think there was no occasion for thing permission and the complainant is at liberty to file a com plaint according to the facts and circum stances of his own case. It was also argued that final report was filed by the police and it has not been finally accepted or refused. This ground is not be found in the application under Section 482 Cr. P. C. So in short the position appears to be, that the complaint makes out an offence and this Court should not interfere. It is for the Magistrate to see into the matter and proceed according o law. The application under Section 482 Cr. P. C. is dismissed and the stay order, if any, is vacated. .