RADHA KRISHEN AIMA Vs. MOHAN JEE DHAR

JUDGEMENT

(1.) ONE , Radha Krishen, filed a complaint against Mohan Jee Dhar and another, on 24.7.1972 under sections 504/427 and 451 R P C. in the court of C. J M. Srinagar who, transferred the same for disposal to the court of City Magistrate, Srinagar. The then City Magistrate (Mr Aga Nasir Ahmad) after examining the complainant and his witnesses and finding Prima facie, that offences under sections 504,451 R P C. have been committed, issued bailable warrants for the attendance of the accused to face their trial. In pursuance of this the accused appeared on 30 -8 -1972. The case was thereafter adjourned from time to time for recording of the prosecution evidence. On 10 -5 -1973 the learned Magistrate, however, referred the complaint for enquiry to the Chief Engineer, Hydraulic Project Division, Srinagar. The learned Magistrate observed in his order as follows; "I am of the opinion that substantial justice would be done if this complaint is sent to the Chief Engineer, Hydraulic Project Division, Srinagar for an enquiry under section 202 Cr.P.C. The enquiry officer shall go into the allegation made in the complaint and if satisfied that the accused have transgressed the limits of the authority shall send the report back to this court for further action."

(2.) IN pursuance of this order the matter was referred to the Chief Engineer, Hydraulic Division Srinagar for an enquiry under section 212 Cr. P C. This order was challenged before the Sessions Judge Srinagar (Mr. G R Shah). The proceedings in the index of the case that was maintained by the trial court were adjourned from time to time without either the complainant or the accused appearing before it. After about more than a year when on 20 -9 -1974 the index was taken up for further proceedings by the then City Magistrate (Mr Bashir -ud -Din) nobody as usual was present nor the report had been received from the Chief Engineer. The learned Magistrate dismissed the complaint under Section 259 Cr P C for default of prosecution. The matter was taken to Additional Sessions Judge, Srinagar in revision who upheld the order of the trial court. Against the order of the Sessions Judge a revision was preferred to this court which was disposed of by Mufti Baha -ud -Din J holding that the impugned order was not justifiable and therefore the same was set aside. While disposing of the petition the learned Judge observed as follows: "However, a more serious mistake appears to have been committed by Aga Nasir Ahmad in directing an enquiry under section 202 Cr P C. after the issue of process to the accused, equally so, by the Sessions Judge in upholding that order in revision Prima facie that order does not appear to be tenable. Let, there fore, notice be issued to the parties to show cause why the order be not set aside."

(3.) IN this case as has been seen above what has happened was that the learned trial Magistrate after holding preliminary enquiry ordered the issuance of warrants against the accused person as he was prima facie of the view that alleged offences had been committed by the assused. The accused thereafter appeared before him and the complainant was ordered to produce evidence to substantiate his allegations. Then suddenly the Magistrate, it appears, became aware of the provisions of section 202 Cr P C. and as a result directed that on enquiry be made by the Chief Engineer with regard to this matter. Sub -section (1) of section 202 Cr. P. C. empowers a Magistrate, an receipt of a complaint of an offence, to postpone the issue of process for compelling the attendance of the person complained against and either enquire into the case himself or direct an enquiry or investigation to be made by any magistrate subordinate to him or by any other person as he think fit for the purpose of ascertaining the truth or otherwise of the complaint. On a plain reading of the said sub -section it was apparent that the Magistrate could exercise the direction only before the issue of process against the accused and once the process has been directed to be issued no action under the sub -section can be taken in law by the Magistrate. The Magistrate has vide powers either to enquiry into the case himself or direct an enquiry to be made by any other person but the crux of the matter is that if he directs an enquiry or investigation to be made, either by a Magistrate subordinate to him or by a police officer or by such other person as he thinks fit, it should be directed to be made before the process for compelling the attendance of the person complained against had been issued by him. Once the process for compelling the attendance of the person complained against is issued, the Magistrate in law cannot order an enquiry or investigation to be made by any person under section 202 Cr.P.C. The purpose of such an enquiry or investigation obviously is find out as to whether the complaint was based on truth or falsehood and then, prima facie to come to a conclusion as to whether the facts discovered through such an enquiry or investigation would justify issue of process for compelling the attendance of the accused person. The aim was to protect and safeguard the alleged accused persons from being unnecessarily harrassed. Once the process has been issued, the purpose for which the provisions of sub -section (1) of section 202 Cr P. C. could in law be invoked does not exist. The Magistrate is required to postpone the issue of process in order to as certain the truth or falsehood of the complaint. A Magistrate who after issue of process or when the accused appears or is brought before it holds or directs an enquiry or investigation acts in contravention of the provisions of section 202 Cr.P.C. After the issue of process and the appearance of the accused the only course open to the Magistrate is to proceed with the trial of the case. In A.I.R. 1951 Kutch: 82, it has been held as follows: - The further illegality in the procedure consisted in the learned Magistrates order directing the police to make an enquiry. This order was patently contrary to law in view of the fact that the Magistrate had already taken cognizance of the offence and had issued process against the applicant."