MOULANA NURMI NABI KHAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) Revision petitioner is the Principal of a High Madrasa and Secretary of the Governing Body of the Madrasa. There was a police complaint against him alleging misappropriation of funds belonging to the Madrasa. An F.I.R. was lodged and after investigation a final report was laid under Section 173 of the Code of Criminal Procedure indicating that there was no material against him. The Court accepted the final report and purported to discharge him. The President of the Governing Body, thereafter, filed a complaint directly before the Court on the same allegation and pointing out the commission of the offence punishable under Section 409, I.P.C. The complainants sworn statement was recorded. The Court perused the case diary relating to the police case and passed an order as follows:6.3.1981 Considered the facts on case diary (prepared by police) and Final Report submitted. Heard learned lawyers for the complainant I am convinced that further inquiry is required to reveal the truth or otherwise.Issue summon U/s. 409 of, I.P.C. against the accused Moulana Narun Nabi Khan to face the charge.. TISummons was not served for several years. It is not clear whether ultimately - summons was served or not. The Court later passed an order to issue non-bailable arrest warrant against the revision petitioner. The present revision petition is filed challenging the decision of the Court to issue process against him.

(2.) What the complainant has done in this case is to inform the Court about the facts of the case and indicate his grievance against the action of police in. referring the case as one without substance. It is what is known as a protest complaint, a complaint invoking jurisdiction of the Court and protesting against the conclusion arrived at by the police. Though it is a complaint succeeding police investigation, it is a complaint attracting Section 190(1)(a) of the Code on the basis of which a Magistrate is competent to take cognizance. A Magistrate taking cognizance of an offence on complaint is, by virtue of Section 200 of the; Code, required to examine, upon oath the complainant and the witnesses present, if any, and record the substance of such examination in writing and take the signatures of complainant and the witnesses respectively. On examination of the material before him, namely, the examination of the complainant and the witnesses, if the Magistrate is of the opinion that there is sufficient ground for proceeding, he shall order issue of process under Section 204 of the Code. In a warrant case, where the accused appears before the Magistrate in compliance with the process, the procedure under Chapter XIX has to be followed. Sections 238 to 243 relate to cases instituted on police report. Sections 244 to 247 relate to cases otherwise than on police report. Sections 248 to 250 are common to all warrant cases. Section 244 requires that on appearance of the accused, Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. If no case against the accused is made out which, if unrebutted, would warrant his conviction, the accused has to be discharged under Section 245. If the accused is not discharged and if the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, Section 246 requires the Magistrate to frame a charge in writing, record the plea of the accused, recall witnesses for cross-examination, if so desired, and to examine the remaining witnesses for the prosecution: Defence evidence was to be recorded under Section 247. Acquittal or conviction is provided in Section 248.

(3.) There may be cases where on perusal of the complaint the recorded sworn statement of the complainant and of the witnesses examined, under Section 200, the Magistrate may not be of opinion that process should be issued and he may be of opinion that the matter deserves further examination. Such further examination is to be done without issuing process. This is covered by Section 202 of the Code. If he thinks fit the Magistrate may postpone the issue of process against the accused. Even under Section 202 two courses are open to the Magistrate. They are to conduct an enquiry himself or to direct investigation to be made by a police officer. The purpose of enquiry or investigation, as the case may be, is to decide whether or not there is sufficient ground for proceeding. The sufficiency of ground for proceeding mentioned in Section 202(1) is also mentioned in Section 204. In other words, it is only where the Magistrate is satisfied that there is sufficient ground for proceeding that he can issue process. If he is not satisfied that there is sufficient ground for proceeding, he may conduct an enquiry himself or direct an investigation by the police. If he conducts an enquiry himself, in the light of the enquiry he may be in a position to decide whether there is sufficient ground for proceeding and he should order issue of process.