BACHCHU POHAAKAL BAIGA Vs. ASHOK KUMAR TIWARI

JUDGEMENT

(1.) THE applicant-complainant is aggrieved by the order of discharge of the accused by Chief Judicial Magistrate, Shahdol by order dated 28-11-1988.

(2.) THE applicant filed a complaint against non-applicants Nos. 1 and 2 in the Court of Chief Judicial Magistrate Under Sections 465, 469, 471, 120-B and 420 of the Indian Penal Code. After recording the statement of the complainant Under Section 200, Criminal Procedure Code, the trial Magistrate directed the complainant to adduce evidence Under Section 202, Criminal Procedure Code. The complainant wanted to contest the election of Gram Panchayat, Devhara from Ward No. 4. Consequently, he filed his nomination paper before the returning officer non-applicant No. 2. It is alleged in the complaint that non-applicant No. 1 - sitting Sarpanch and also candidates to the election filed an application on behalf of complainant Bachchu before the returning officer Under Rule 28 of the Madhya Pradesh Gram Panchayat (Election and Cooption) Rules, 1982. It is further alleged in the complaint that non-applicant No. 2 entered into a conspiracy with non-applicant No. i and non-applicant No. 2 directed withdrawal of the application allegedly filed by non-applicant No. 1. Thus, non-applicant No. 1 was declared elected unopposed. The applicant and his proposer both disappeared from the scene on the apprehension that they may be forced or coerced by non-applicant No. 1 to file his withdrawal. Consequently, the case of the complainant is that non-applicants Nos. 1 and 2 forced his withdrawal and got the election in his favour by deceit and fraudulent means. Thus, the complaint was filed. Under Section 202, Criminal Procedure Code, the learned trial Magistrate examined the evidence produced by the complainant and the hand-writing report by the Hand-writing Expert Banmali Dwivedi was also filed. The witnesses examined were Dhanpat Singh, Ramnarayan and Tanti. Tanti was proposer in the nomination paper of the complainant. The learned Magistrate on 28-11-1988 refused to issue process against the accused persons Under Section 204 of the Criminal Procedure Code. Instead he chose to dismiss the complaint Under Section 203 of the Criminal Procedure Code. It is against this order that the complainant-applicant is aggrieved.

(3.) SHRI N. C. Jain, learned counsel for the applicant, contended at the bar that the learned Chief Judicial Magistrate at the stage of Section 204, Criminal Procedure Code has exceeded his jurisdiction by evaluating and appreciating the evidence at the stage of issuance of the process. He further "contended that Rule 28 of the Madhya Pradesh Gram Panchayat (Election and Cooption) Rules, 1982 provides, the procedure for withdrawal of the alleged nomination paper, and the alleged withdrawal was completly against this rule. Consequently, there existed a prima facie case against the non-applicant and the learned Magistrate should have issued process against them. In the catena of decisions, it has been reiterated time and again that at the stage where the process is to be issued, the evidence recorded Under Section 200, Criminal Procedure Code and also Under Section 202 is not to be evaluated and appreciated as they are done while finally disposing of the case. It is also settled that at the stage of Section 203, Criminal Procedure Code, the Magistrate is not justified in presuming anything in favour of the accused person. He is only concerned with sufficient cause or otherwise for proceeding against the accused. Thus, the meticulous weight of evidence is deprecated at the stage of Sections 203 and 204, Criminal Procedure Code. Another defect in the impugned order is that if the report of the hand-writing expert was produced by the complainant Under Section 202, Criminal Procedure Code, it should have been accepted by the learned trial Magistrate on its face value. At that stage, the expert was not required to be examined for proving his report. It could easily be done when the trial proceeded after issuance of the process against the accused persons.