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Judgment
Being aggrieved by the order Annexure A/1 dated 6.9.2016 passed by the Judicial Magistrate First Class, Bhopal in UN-CR/UR/2015
rejecting the complaint under Section 203 of the Code of Criminal Procedure (hereinafter shall be referred to as ''''Cr.P.C''''), this petition under
Section 378(4) of the Cr.P.C seeking leave to appeal has been filed by the applicant/complainant.
At the outset, learned counsel representing the respondent has raised a preliminary objection regarding maintainability of this petition interalia
contending that the impugned order Annexure A/1 dated 6.9.2016 has been passed by the Court below refusing to take cognizance due to not
having sufficient ground for proceeding against the accused for the offence under Sections 420, 467, 468, 471 of the Indian Penal Code
(hereinafter shall be referred to as I.P.C) and it would amounting to dismissal of the complaint under Section 203 of the Cr.P.C. Section 378(4) of
the Cr.P.C deals with the appeal when an order of acquittal is passed in any case instituted upon a complaint. However, the order of dismissal of a
complaint is not similar to the order of acquittal, which can be passed after trial, therefore, this petition seeking leave to appeal is not maintainable
and liable to be dismissed.
On the other hand, learned counsel representing the petitioner contends that after filing the private complaint and examination of the complainant
and other witnesses, the Court below has refused to take cognizance on the complaint and it would amounting to discharge/acquittal of the
accused, therefore, this petition filed under Section 378(4) of the Cr.P.C by the petitioner/complainant seeking leave to appeal is maintainable.
After having heard learned counsel for the parties, it is to be seen that on dismissal of a complaint without issuing summons to the accused would
amounting to acquittal/discharge of the accused and the petition filed under Section 378(4) of the Cr.P.C seeking leave to appeal is maintainable or
not. Adverting to the argument as advanced by learned counsel for the petitioner, first of all, the provision of Section 203 of the Cr.P.C is relevant,
which is reproduced as under:-
Dismissal of complaint - If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the
inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the
complaint, and in every such case he shall briefly record his reasons for so doing.
Perusal of the language of Section 203 of the Cr.P.C makes it clear that on filing a complaint and on examination of the complainant and his
witnesses, if the Magistrate forms an opinion that sufficient ground to proceed in the ""inquiry"" or ""investigation"" under Section 202 of the Cr.P.C is
made out, he shall issue the summons under Section 204 of the Cr.P.C otherwise dismiss the complaint. The words ""inquiry"" and ""investigation
have been defined in Section 2(g) and 2(h) of the Cr.P.C, which are reproduced as under:-
2(g) ""inquiry"" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.
2(h) ""investigation"" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorised by a Magistrate in this behalf.
The ""inquiry"" would mean every inquiry other than a trial conducted under the Cr.P.C by a Magistrate or Court whereas ""investigation"" denotes
all the proceedings under the Cr.P.C for collection of evidence conducted by a Police Officer or by any person (other than a Magistrate)
authorised by a Magistrate in this behalf. Therefore, it can safely be crystallized that dismissal of a complaint under Section 203 of the Cr.P.C does
not contemplate the word ""trial"" and it merely contemplates the words ""inquiry"" and ""investigation"" under Section 202 of the Cr.P.C. The word
trial"" is not defined in the Cr.P.C but Section 4 of the Cr.P.C deals with the trial of offences under the Indian Penal Code and other laws, which
clarifies that all the offences of the I.P.C shall be investigated, inquired into, tried and otherwise dealt with in accordance with the provisions of the
Cr.P.C and similar is the provision for trial to the offences other than the I.P.C.
The issue regarding distinction of ""inquiry"" and ""trial"" came up for consideration before the Bombay High Court In reference Mukund
Bhaskarshet reported in (1906) 4 Cr.L.J 329 wherein the Bombay High Court observed as under:-
Again a dismissal of a complaint under Section 203 or a discharge under Section 253 is not an acquittal such as operates to prevent a fresh
trial, without the dismissal of discharge being set aside. See 403 Criminal Procedure Code and also see Queen Empress Versus Shankar (1888)
ILR 13 Bom 384.
The similar issue came up for consideration before Patna High Court in the case of Hema Singh & Another Versus Emperor reported in AIR
1929 Patna 644 wherein the Court has held as under:-
In other words a trial is a judicial proceeding which ends in conviction or acquittal. All other proceedings are mere enquiries. There are enquiries
of a restricted kind such as those under Section 202 which end in a decision whether or not to issue process or if process has been issued the
enquiry may proceed and may end with the decision to dismiss the complaint without charging the accused. The distinction to be made is that
between a trial which must end either in conviction and sentence, or acquittal and enquiries which may have various endings according to
circumstances. Section 4(k) defines an enquiry as: ""including every enquiry other than a trial conducted under this Code by a Magistrate or Court"".
Therefore, if a Magistrate on receipt of a complaint issues process against the accused and ultimately concludes that an offence triable at Sessions
has been committed and commits the accused, the trial does not begin until the accused appears at the Sessions and the proceedings before the
Magistrate have constituted an enquiry only.
In the case of Hardeep Singh Versus State of Punjab & Others reported in (2014) 3 SCC 92, the Apex Court while explaining the meaning of
expression ""inquiry"" has observed that ""inquiry"" means pretrial inquiry by a Court and the Court can exercise such power under Section 319 of
Cr.P.C prior to commencement of trial.
The issue of dismissal of a complaint after issuing the process to the accused and its acquittal came up for consideration in the case of State by
Inspector of Factories V Circle, Madras-18 represented by Public Prosecutor Versus Sukir S.Beedi, Occupier M/s.Deepak Industrial Associates
& Another reported in 1996 (2) MWN (Cr) 4 wherein the Madras High Court referring the provision of Sections 203 & 204 of the Cr.P.C has
observed as under:-
Criminal Procedure Code Sections 203 & 204-Dismissal of the complaint and acquittal of the accused after issue of process-Magistrate, after
issue of process under Section 204 Cr.P.C dismissed the complaint and acquitted the accused on the ground that the summons were not served
and no reason was given by the complainant for the non-production of the accused-Legality and validity-Having taken the complaint on file under
Section 190(1)(a) and having issued a process provided in Chapter 16 of Cr.P.C by ensuring the presence of the accused by way of issuance of
summons or warrant-Section 203 only contemplates dismissal of the complaint before the issue of process, whereas acquittal would come only
after the trial. Admittedly, the process had already been issued, and that being the situation the Magistrate?s order invoking Section 203 Cr.P.C to
dismiss the complaint and acquit the accused, reflects the very grave illegality-Order liable to be set aside.
In the case of Shivjee Singh Versus Nagendra Tiwary & Others reported in AIR 2010 SC 2261, the Apex Court has explained the meaning
of expression ""sufficient ground"" and observed that it would mean to record a satisfaction by a Magistrate that a prima facie case is made out
against the accused but it does not mean that ""sufficient ground"" for the purpose of conviction is made out.
In the case of Iris Computers Limited Versus Askari Infotech Private Limited & Others reported in (2015) 14 SCC 399, the Apex Court has
observed that on receipt of a private complaint, the Magistrate has to satisfy by conducting the ""inquiry"" and ""investigation"" under Sections 200 &
202 of the Cr.P.C that there existed material to proceed against the accused. If the Magistrate is not satisfied, he can dismiss the complaint taking
recourse of Section 203 of Cr.P.C otherwise he can issue process under Section 204 of the Cr.P.C. The Apex Court has also observed that if a
complaint is dismissed under Section 203 of Cr.P.C, the remedy to approach the High Court lies under Section 482 of Cr.P.C and not to the
Magistrate under Section 203 of the Cr.P.C.
In the case of Jatinder Singh & Others Versus Ranjit Kaur reported in (2001) 2 SCC 570, the Apex Court has dealt with the situation of
dismissal of a complaint under Sections 202 & 203 of the Cr.P.C not on merit but on default of complainant to be present in Court and observed
that the dismissal of a complaint under Section 203 of the Cr.P.C may be made if there is no sufficient ground for proceeding. The Apex Court
further held that there is no provision in the Code or any in other statute which debars a complainant from preferring a second complaint on the
same allegations if the first complaint did not result in a conviction or acquittal or even discharge. If the dismissal of the complaint was not on merit
but was on default of the complainant to be present in Court then there is no bar in the complainant moving the Magistrate again with a second
complaint on the same facts but if the dismissal of the complaint under Section 203 of the Cr.P.C was on merit, the position would be different
because when a Magistrate conducts an inquiry under Section 202 of the Cr.P.C and dismisses the complaint on merit, the second complaint
would not lie unless there are very exceptional circumstances.
The word ""acquit"" denotes ""to set free"" or ""deliver from the charge of an offence after trial"". Meaning thereby the acquittal would be by an
order of a Court holding the accused not guilty of the offence. In this context, the provision of Section 378(4) of the Cr.P.C is relevant, which is
reproduced as under:-
Section 378(4)-If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by
the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High
Court.
Perusal of the language of Section 378(4) of the Cr.P.C makes it clear that an appeal would lie in case of acquittal. However, the order of
acquittal would be after trial of the case and it cannot be based on an ""inquiry"" or ""investigation"" therefore, the order of dismissal of the complaint
passed by the Magistrate in exercise of the power under Section 203 of the Cr.P.C would not come within the purview of ""acquittal"" of the
accused and infact it is an order of not proceeding against the accused because sufficient material was not found in inquiry by the Court. Therefore,
the order of dismissal of a complaint cannot be synonym to the order of acquittal, which gives a cause to the complainant to file a petition seeking
leave to appeal under Section 378(4) of the Cr.P.C.
On perusal of the aforesaid, it is apparent that dismissal of a complaint and to try an offence are two distinct situations. Previous deals with
sufficiency of the ground for proceeding in a complaint to summon the accused while later deals with the stage after summon of the accused and on
framing the charge, the evidence has been brought in a competent Court of law to prove the guilt against the accused and the trial concludes by
conviction or acquittal.
In view of the law laid down by the Apex Court as well as by the High Courts in various judgments as discussed hereinabove, it can safely be
crystallized that ""inquiry"" can be conducted by a Court in a proceeding but it would not come within the purview of ""trial"". It is also apparent that
when ""investigation"" is to be conducted, it ought to be done by a Police Officer or by any person authorized by a Court but it would not be done
by a Magistrate. If a complaint is dismissed under Section 203 of the Cr.P.C for want of sufficient ground for proceeding against the accused, it
would not come within the purview of ""acquittal"" and such an order would not be treated to be an order ""after trial"".
In the case of Manharibhai Muljibhai Kakadia & Another Versus Shaileshbhai Mohanbhai Patel & Others reported in (2012) 10 SCC 517,
the Apex Court has observed that if a complaint is dismissed under Section 203 of the Cr.P.C, the revision can be maintained and opportunity of
hearing to the accused at a subsequent proceeding is necessary. Similar view of maintaining the revision has been taken by the Apex Court in the
case of V.K.Bhat Versus G.Ravi Kishore & Another reported in (2016) 13 SCC 243.
In view of the foregoing discussion, the question as posed is answered against the petitioner and in favour of the respondent holding that the
order dismissing the complaint under Section 203 of the Cr.P.C would not come within the connotation ""acquittal"" and the petition filed by the
petitioner/complainant under Section 378(4) of the Cr.P.C seeking leave to appeal is not maintainable. The remedy is available to the petitioner to
challenge the impugned order by filing a revision or a petition under Section 482 of the Cr.P.C. Therefore, upholding the objection filed by the
respondent, this petition stands dismissed. However, it is observed that the dismissal of this petition would not debar the petitioner to take recourse
of law as permissible to him.
At this stage, learned counsel for the petitioner prays for return of the certified copy of the impugned order Annexure A/1 dated 6.9.2016
passed by the Judicial Magistrate First Class, Bhopal in UNCR/ UR/2015. The Registry is directed to return the certified copy of the impugned
order on filing a photocopy thereof by the petitioner.
At the end, it is our duty to record the words of appreciation in favour of Shri Girish Kekre, Shri Piyush Dharmadhikari, Shri Anubhav Jain,
Government Advocates who have rendered their assistance on the legal issue involved in this petition and their assistance is hereby acknowledged.