In the matter of : Uttam Kumar Halder

Joymalya Bagchi, J.—Petitioner is the complainant in the instant case and it is submitted that the learned Magistrate erred in law in summoning the defacto complainant at whose behest the criminal case was registered in respect whereof it is alleged that the petitioner''s father was subjected to illegal detention.

Learned Magistrate took cognizance of the alleged offences and proceeded to hold further inquiry under Section 202 of the Code of Criminal Procedure to satisfy himself whether there was sufficient ground to proceed against the accused persons. The grievance of the petitioner/complainant is that the Magistrate had invoked his power under Section 311 of the Code of Criminal Procedure to summon the defacto complainant to depose in the course of the said inquiry which according to the petitioner was beyond the jurisdiction of the learned Magistrate.

The purpose of holding inquiry under Section 202 of the Code of Criminal Procedure is for the subjective satisfaction of the learned Magistrate as to whether there are sufficient grounds to proceed against the accused persons.

In the instant case, the accused is a Police Officer who allegedly subjected the petitioner to illegal detention on the basis of the complaint lodged by the defacto complainant. Under such circumstances, learned Magistrate invoked his power under Section 311 of the Code of Criminal Procedure to examine the defacto complainant who was aware of the circumstances in which the complaint was lodged and the steps taken in regard thereto.

Hence, I cannot accept the contention that the examination of the said witness is not germane to the facts of the instant case or irrelevant for the purpose of arriving at a just decision therein. It is needless to mention that exercise of power under Section 311 of the Code of Criminal Procedure is clearly a magisterial discretion and is not guided of the whims of the party including the complainant who is prosecuting the case. Moreover, a pre-summoning inquiry under Section 202 of the Code of Criminal Procedure to verify the allegations made in the petition of complaint before issuing a process under Section 204 of the Code of Criminal Procedure. In Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., reported in 1998 Crl. L. J. 1, the Hon''ble Apex Court held as follows;

" Summoning of an accused is a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to b ring only two witnesses to support his allegations in the complaint who have the criminal law set in to motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit to answers find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

Pre-summoning inquiry under Section 202 of the Code of Criminal Procedure is a species of inquiry which falls within the ambit of inquiry as defined under Section 2(g) of the Code and, therefore, the invocation of power under Section 311 of the Code of Criminal Procedure in aid of such inquiry cannot be said to be illegal or beyond the jurisdiction of the learned Magistrate.

For the aforesaid reasons, do not find any merit in the instant case. Further inquiry under Section 202 of the Code of Criminal Procedure shall continue in accordance with law and the learned Magistrate shall consider all materials placed before him by the complainant in addition to the deposition of the defcto complainant summoned by him under Section 311 of the Code of Criminal Procedure before arriving at a conclusive opinion as to whether there is sufficient ground to proceed against the accused person or not.

With the aforesaid observation, the petition is disposed of.

Urgent photostat certified copy of this order, if applied for, shall be given to the learned Advocate of the petitioner, as expeditiously as possible on compliance of all necessary formalities.