G.S. Shukla vs State

K.K. Mitra, J.—These two revisional applications are directed against the order dated December 10, 1969, passed by the Sessions Judge, Midnapore, setting aside the order passed by Sri A. K Sen, Sub-divisional Magistrate, Sadar South Midnapore, dismissing the complaint against the Petitioner u/s 203, Code of Criminal Procedure, and directing the District Magistrate to make such further enquiry into the complaint by himself or by any of the Magistrates subordinate to him other than Sri A. K. Sen who dismissed the complaint.

The facts of the case in brief are as follows:

Opposite party No. 2, one Umesh Chandra Sen, filed a complaint before the Sub-divisional Magistrate, Midnapore, on June 4, 1969, alleging that he took loan of Rs. 8,000 from the Petitioner G.S. Shukla on condition to repay at Rs. 9,000 within a month and that as security for the loan he made over a truck and a jeep. The loan was repaid but the vehicles were not returned and that four blank papers bearing his signature handed over bona fide by him to the Petitioner had been dishonesty converted into sale documents. The allegation was that the Petitioner committed offences punishable under Sections 420, 406 and 407, Indian Penal Code.

The complainant opposite party was examined u/s 200, Code of Criminal Procedure, by the Sub-divisional Magistrate and the learned Magistrate directed the Officer-in-charge of Kharagpur Police Station to enquire and report u/s 202 of the Code of Criminal Procedure.

On June 7, 1969, IB. N. Shukla, who is the Petitioner in revisional case No. 76/70, filed an application before the Sub-divisional Magistrate alleging that Umesh Ch. Sen sold the same truck- and the jeep to him on May 10, 1969, at Rs. 21,000 and Rs. 9,000, respectively and necessary steps for registering the vehicles on the basis of transfer of ownership had been taken by B. N. Shukla. The learned Sub-divisional Magistrate also sent that application to the Officer-in-charge, Kharagpur Police Station, to enquire and report. The same Police Officer after making enquiry submitted two distinct, reports, one in respect to the complaint filed by Umesh Ch. Sen and the other in respect to the claim of G.S.'' Shukla. The learned Magistrate then dismissed the complaint u/s 203, Code of Criminal Procedure. Umesh Ch. Sen moved the Sessions Judge under Sections 435/436, Code of Criminal Procedure, against the order of dismissal passed by the Magistrate u/s 203, Code of Criminal Procedure, and the learned Sessions Judge by his order dated November 10, 1969, directed a further enquiry into the complaint on a finding that the learned Magistrate while dismissing "the complaint did not apply his judicial mind when he thought that there was no prima facie case against "the Petitioner and he was not correct in holding the dispute to be of a civil nature. G.S. Shukla being aggrieved by such order of the Sessions Judge for further enquiry has obtained this Rule in revisional case No. 75/70 and B. N. Shukla also has obtained a Rule in revisional case No. 76/70.

Mr. Dutta appearing for the opposite party in revisional case No. 75/70 raised a preliminary objection that the Petitioner had no locus standi to challenge the order passed by the Sessions Judge u/s 436, Code of Criminal Procedure, directing a further enquiry in respect to a complaint which had been dismissed by the Magistrate u/s 203, Code of Criminal Procedure, and that the entire proceedings being at the stage of enquiry when no process had been issued by the Court against the Petitioner G. S. Shukla, he has no right of appearance or being heard. It is further submitted that even though on the prayer of the State notice had been served by the Sessions Judge for appearance of G. S. Shukla and B. N. Shukla, and vakalatncma had been filed by them and it might be that the Sessions Judge heard arguments of both sides, the Petitioners did not derive any right to move this Court in revision claiming the same on the basis of such illegalities committed by the Sessions Judge. It is submitted by Mr. Dutta that the revisional powers of this Court exercised u/s 439 of the Code of Criminal Procedure must be read with the subject to the provisions of Section 435, Code of Criminal Procedure, and if a case is outside the scope of Section 435, Code of Criminal Procedure, Section 439 cannot apply.

There is no doubt that the object behind the revisional powers to be exercised by this Court is to confer a kind of paternal or supervisory jurisdiction over all subordinate Courts as might be in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment. It is also true that the Court's discretion unfettered by the Legislature ought not to be crystalised by prescribing definite rules with a view to be binding upon other Judges in the exercise of their discretion which the Legislature had committed to them. The discretion is wide enough and must be left unirampled and free so as to be fairly exercised to the exigencies of each case. The order in question, directing further enquiry, was passed by the Sessions Judge in exercise of his power under Sections 435/186, Code of Criminal Procedure, and the challenge is against such order.

The power given to the High Court or the Sessions Judge or the District Magistrate or any Sub-divisional Magistrate, specially empowered u/s 435, is to send for and examine record of any proceedings of any inferior Court for the purpose of satisfying itself as to the correctness, legality and propriety of any finding or sentence or order recorded or passed and as to the irregularity of proceedings of such inferior Courts. The machinery for correcting the error by this Court is provided in Sections 435/439, Code of Criminal Procedure. The Petitioner obtained the Rule against an order passed by the Sessions Judge u/s 436, Code of. Criminal Procedure.

Section 436 confers power to order further enquiry where the complaint is dismissed u/s 203, Code of Criminal Procedure, or u/s 204(3) or in which the accused may have been discharged under any of the provisions of the Code, e.g. 207A(7), 209, 251A(2), 253 and 259. When further enquiry is directed u/s 436, Code of Criminal Procedure, there arises just the question of reconsideration of the matter and the effect of a direction as to further enquiry is to set aside the order of dismissal leaving the Magistrate free to proceed afresh and to pass the appropriate order after reconsideration of the whole matter and, if necessary, upon further enquiry.

The proviso to Section 436 makes it clear that no direction for further enquiry into a case can be made by the High -Court or the Sessions Judge in exercise of the revisiohal jurisdiction when any person accused of an offence had been discharged unless such person is afforded an opportunity of showing cause against it. Sub-section (2) to Section 439 provides that no order u/s 439 can be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by his pleader in his own defence. Section 440, Code of Criminal Procedure, lays down that no party has as the prosecutor or the complainant or the accused, as a matter of right, a claim to be heard either personally or by a pleader before the Court exercising its revisional power, and the exceptions are to be found in the proviso to Section 436 and in Section 439(2), Code of Criminal Procedure. The point is whether the Sessions Judge while considering the revisional application u/s 436, Code of Criminal Procedure, had any discretion to allow G.S. Shukla to appear and allow him to be heard through the lawyers. The power which the High Court or the Sessions Judge exercises u/s 436, Code of Criminal Procedure, directing further enquiry into the complaint which had been dismissed u/s 203, is confined to the question of examination of illegalities or material irregularities which might have been committed by the Magistrate in following the procedure under Sections 200, 202 and 203, Code of Criminal Procedure, and in none of these the person complained against has any right to be heard. It is well-settled that the person complained against has no locus standi to appear or to be represented by a lawyer before the issue of process. -Nor can he be allowed to cross-examine the prosecution witnesses or to adduce defence evidence and, therefore, notice to the accused is an illegal procedure being entirely unwarranted by law. The person made accused has just the liberty to watch the proceedings and to ascertain what materials had been brought by the complainant to prove the prima facie case. If this be the position of the person complained against in course of the several stages of the proceedings'' under chap. XVI of the Code of Criminal Procedure, the person made accused does not acquire any more right when the revisional application oh dismissal of complaint u/s 203 comes up for consideration before the Sessions Judge u/s 436, Code of Criminal Procedure. It cannot as well be said that the Sessions. Judge had any discretion to allow p the person complained against, that is G.S. Shukla, to appear through lawyer and allow him to be heard when such a procedure is unwarranted by law and, as such, should be deemed to be contrary to the well-established procedure. If a discretion is exercised which the Court has not and is as such found to be illegal, no person acquires any right as a consequence of that.

It is true that this Court had issued a Rule at the instance of the Shuklas. But the question whether the Shuklas had any right to come up in revision challenging the order passed by the Sessions Judge u/s 436, Code of Criminal Procedure, in which the law does not allow him any right of representation or any right to be heard must be decided on the basis that Shukla cannot come into the picture at all in course of the proceedings u/s 436, Code of Criminal Procedure.

In support of his contention Mr. Nalin Chandra Banerjee, learned Advocate, cited a number of decisions which I proceed to consider:

(i) In Ram Prasad v. The King-Emperor 17 C.W.N. 379 the distinction between function of this Court in dealing civil suits in second appeal u/s 100, Code of Criminal Procedure, and the function in criminal cases in revisional applications was pointed out and it was stated that the Court would not hesitate to interfere with offence and also with questions of fact if it was manifestly erroneous resulting in miscarriage of justice. This decision has no manner of application to the solution of the question before me as to the maintainability of the revisional applications.

(ii) In Debidas Karmakar v. The King-Emperor 33 C.W.N. 974 the question arose if in a criminal revision the Sessions Judge in course,of trial of persons committed to sessions could direct commitment of person who had been discharged by the Magistrate and not interfered with by the Sessions Judge. It was held that the Sessions Judge could miake such order u/s 437 as he was entitled to reconsider the matter upon proper material. This case also has no manner of application to the present question.

(iii) I have gone through the decision in Satish Chandra Seal and Others Vs. Emperor, , another decision cited which is a Division Bench judgment in criminal appeal and there is nothing in that judgment having any relevancy to the matter under consideration in the present case.

(iv) In the case reported in Cr.L.J. (1941) 42 Cri.L.J. 891 it was held that even wihen the convict did not contest his conviction and in spite of an application u/s 439, Code of Criminal Procedure, against that conviction presented by the Bar Association was maintainable. Obviously, the principle enunciated was that it was the duty of the High Court to see. in any case which might be brought to its notice from any source as lo whether the conviction of a person was in accordance with law and the sentence was excessive. But this decision does not throw any light on the question before me as to whether an order of further enquiry made by the Sessions Judge u/s 436, Code of Criminal Procedure, can be challenged by the Petitioner who is not as yet an accused at his initiative.

(v) In J.N. Sinha v. Jogenath Banerjee 30 C.W.N. 674 in a complaint case in respect to offences under Sections 120B, 406 and 420, Indian Penal Code, an order was passed restraining the person made accused from operating on Bank accounts obviously resulting in an invasion of his right in course of the enquiry proceedings, and it was stated that the person complained against could appear immediately and ask for vacating that order and the materials in that connection brought to the notice of the Magistrate by the person made accused as grounds for vacating such order-should also be considered in deciding whether process, should be issued or not.

(vi) In Pranab Kumar Mitra Vs. The State of West Bengal and Another, the question arose in an appeal filed on a certificate of fitness granted by the High Court as to whether a pending application in revision finally abates on the death of the Petitioner, and in course of this decision it was stated that the revisional power of the High Court was not in effect creating any right in the litigant but conserving the power of the High Court to see that justice was done in accordance with law and there was no abuse of their power vested in the subordinate Courts. It was further held that whether it wafs an accused person or it was a complaint when the Rule had been issued by the High Court, it had got to be heard whether the Petitioner was dead or alive or whether he had been represented in a Court by a legal practitioner or not and, therefore, there might not be any abatement of the proceedings as in respect to an appeal u/s 431, Code of Criminal Procedure. This decisibri as well in any offence is not helpful to afford any clear guidance to the relevant question before me.

(vii) In Bhadilal Panchalal v. Dutta Roya Gulqji AIR 1960 1115 the scope as to the procedure to be followed by the person holding investigation or enquiry for the purpose of ascertaining truth or falsehood of the complaint u/s 202(1) of the Code of Criminal Procedure, and the powers and duties of the Magistrate to dismiss the complaint u/s 203 had been considered. The question arose if it was open to the Magistrate to hold that the plea of self-defence made by the person complained against could at all be considered on the basis of the report and statement of witnesses recorded by the enquiry officer. It was simply held that a plea of self-defence could be made out by the person against whom the complaint was made and the Court had to decide whether process would be issued or not on the basis of the report wherein a plea of self-defence had been made out. It does not appear, however, from the decision as to whether the Magistrate had considered any material produced by the person complained against. Evidently, if upon the material produced before the enquiry officer or the Magistrate a plea of self-defence is made out, the Magistrate must consider that and refuse to issue process. So, this decision as well does not help me.

The locus standi of the person complained against to take part or interfere in an enquiry u/s 202. Code of Criminal Procedure, and the matter which was to be considered by the Magistrate in deciding the question as to whether process would be issued or not has been exhaustively considered by the Supreme Court in the case of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, . The relevant questions came up for consideration in an appeal by certificate granted by the High Court of Calcutta under Article 134(1)(c) of the Constitution. It is necessary to discuss the decision in some details. A complaint was filed by one Mahendra Singh asking for process to be issued against some persons alleging that they had. murdered one Nagcswar Singh, and the learned Sub-divisional Magistrate after examining the complainant Mahendra Singh sent the case for judicial enquiry by a ''first class Magistrate. During the pendency of. the enquiry one Chandra Deo filed another complaint making allegation that Prokash Ch. Bose had caused the death of Nagcswar by firing a shot at point blank range and in the same way the same Sub-divisional Magistrate sent the matter for judicial enquiry by the same subordinate Magistrate. The enquiry Magistrate sent a report that there was a prima facie case made out against three persons in respect to the complaint by Mahendra Singh and that there was no prima facie case against Prokash Ch. Bose in respect to the complaint by Chandra Deo. The Sub-divisional Magistrate on receipt of the reports issued process against those three persons and started committal proceedings and dismissed the complaint of Chandra Deo u/s 203, Code of Criminal Procedure. Being aggrieved Chandra Deo moved the Sessions Judge who after issuing notice to Prokash Ch. Bose and hearing his counsel directed the Sub-divisional Magistrate to make further enquiry against him, and thereafter a revisional application was filed before the High Court naturally against the order passed.

The principles enunciated in that decision are as follqws: (i) that an enquiry u/s 202, Code of Criminal Procedure, can m no sense be characterised as a trial and the defence of the accused can only be enquired into at the trial and, therefore, permitting a person accused to intervene during the stage of enquiry would frustrate the very object behind such enquiry. So, Prokash Ch. Bose had no locus standi to appear and contest the criminal case before the issue of process; (ii) though the object of the enquiry under Sub-section (1) of Section 202 is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, statement on oath made by the complainant and the statements made before him by the persons examined at the instance of the complainant.

It may be remembered that it was Chandra Deo, the complainant, and not Prokash Ch. Bose, who was the person aggrieved and.filed the revisiorial application u/s 439, Code of Criminal Procedure, straightway to the High Court against the order of dismissal of his complaint u/s 203, Code of Criminal Procedure. The principle enunciated in Chandra Deo's case (Supra) is helpful in showing the status of the person complained against and about his right to interfere in a proceeding u/s 202 against whom accusations had been made. But it does not actually resolve the problem as to whether such person, can move this Court u/s 439 when further enquiry u/s 426, Code of Criminal Procedure, had been directed. It is, no doubt, necessary for this Court to see that a person against whom complaint is filed is not unnecessarily harassed to face a trial which would follow after, process is issued u/s 204, Code of Criminal Procedure. But at the same time, for determining the.question whether process is to be issued or not, the Magistrate is to be satisfied prima facie that there is sufficient ground for'' proceeding without troubling himself on the question as to whether there is sufficient ground for a conviction which is to be determined only at the trial and not at the stage of enquiry. At alPthc stages of the procedure laid down under chap. XVI the Magistrate is to determine if the complainant is frivolous or not confining himself to the material which the complaint by himself produces before him. So, it would be contrary to the provisions of the Code to permit a person who may be an accused on issue of process u/s 204, Code of Criminal Procedure, to intervene inasmucli as it would frustrate the very object of the enquiry.

This Court has, of course, a discretion to call for record of the lower Court at its own initiative to satisfy itself about legality, propriety or correctness of any order passed by the lower Court. In the instant case, the record had not been called for in the manner stated above. It was called for in the revisional jurisdiction of this Court under Sections 435/439, Code of Criminal Procedure, at the instance of G.S. Shukla who, in my opinion, had no locus standi to take any part II the proceedings under chap. XVI of the Code of Criminal Procedure and had no right to be heard.in an application u/s 436, Code of Criminal Procedure,, which gives a concurrent jurisdiction upon the Sessions Judge. This Court may interfere when a complaint is dismissed u/s 203, Code of Criminal Procedure u/s 439, Code of Criminal Procedure. So, even though G. S! Shukla appeared in the Sessions Court and their vakaLal mma was accepted and iie might have been heard, he did not acquire any right to come up before this Court u/s 439, Code of Criminal Procedure, challenging the order of the Sessions Judge. The absence of locus standi continues throughout and, as such, the revisional application at his instance is not maintainable. The objection raised by the complainant opposite party touches at the very root of the revisional application on a pure question of law which is decided as a preliminary point and I find that the revisional application is not maintainable and the Rule must stand discharged.

The Rule is discharged in Criminal Revision Case No. 75 of 1970 only.