Lachhi vs Kedar Singh

Chet Ram Thakur, J.—This revision petition u/s 439 is directed against the order, dated 19th June, 1971, passed by the learned Sessions Judge, dismissing the revision petition filed by the present Petitioner against the dismissal of his complaint by the District Magistrate. The order of the District Magistrate against which a revision was preferred before the learned Sessions Judge is to the following effect:

28-7-1970: The complainant Shri Lachhi Ram has failed to produce his evidence in spite of the opportunity afforded to him. He has filed an application for summoning the witnesses. I could not lay may hands upon any provisions under Chapter 16 of the Code of Criminal Procedure requiring the summoning of the witnesses of the complainant by the Court. I, therefore, hereby dismiss the complaint.

The Petitioner had filed a complaint under various Sections of the Indian Penal Code against Shri Kidar Singh, the then S.H.O. Chopal, and one Zerab Singh constable of the Police Station before the District Magistrate, Mahasu. The learned District Magistrate examined the complainant under the provisions of Section 200 Code of Criminal Procedure Thereafter it appears from the order that the Petitioner was required to produce his witnesses and one or two adjournments were granted to the Petitioner for that purpose. The Petitioner had also made an application to the Court for getting the witnesses summoned through the Court but the learned District Magistrate declined to get the witnesses summoned through the Court and he directed his counsel to intimate the complainant to produce the witnesses at his own responsibility. On the failure of the Petitioner to produce the witnesses the learned District Magistrate passed the impugned order.

It is no doubt true that there is no provision in Chapter 16 of the Code of Criminal Procedure enjoining upon the Magistrate to summon the witnesses of the complainant for the preliminary inquiry. According to Section 200 of the Code of Criminal Procedure a Magistrate taking cognizance of an offence on complaint is required to examine the complainant and the witnesses present, if any. If the Magistrate has doubts about the truth of the complaint he has been given power to postpone the issue of process if he thinks fit for reasons to be recorded in writing and either to inquire into the case himself or direct an inquiry to be made as contemplated u/s 202 of the Code of Criminal Procedure. It is only after the Magistrate has conducted the preliminary inquiry that he must either dismiss the complaint or issue process against the accused as the case may be. He had elected to conduct an inquiry as contemplated u/s 202 of the Code of Criminal Procedure. But later on he dismissed the complaint for failure of the Petitioner to produce the evidence. The submission made by the Petitioner is that he had made an application for summoning the witnesses but the order of the learned Magistrate reveals that it was for the complainant to produce the witnesses himself and that there exists no provision in the Code which makes it obligatory on the Magistrate to summon the witnesses. No doubt, there is no provision but the Magistrate could not dismiss the complaint for failure of the complainant to produce the witnesses when he had made an application before the court to summon the witnesses. In this particular case it was all the more necessary when he had made the allegations against the police officials. The complainant personally could not secure the attendance of the witnesses because the witnesses are afraid of the police officials in the illaqua and he had, therefore, sought the assistance of the Magistrate for summoning the witnesses and a request in writing had been made by the complainant to summon the witnesses during the preliminary inquiry in order to judge the truthfulness or falsity of the accusation made by the complainant against the police officials of the police station. Even the natural principles of justice require that the Magistrate should have summoned the witnesses when the complainant had made an application on the very next date of making the complaint in the Court. Therefore, in my opinion, the learned Magistrate was wrong in dismissing the complaint merely on the ground that the complainant failed to produce the witnesses at the preliminary inquiry. If at all he wanted to dismiss it he should have passed an order on the very date he examined the complainant and found that there was no material before him for issue of process against the accused. But once he had decided to make a preliminary inquiry into the allegations he should have acceded to the request of the complainant even though there was no specific provision in the Code authorising him to summon the witnesses during the preliminary inquiry. The provisions of Section 202 of the Code of Criminal Procedure also requiry that during the course of the preliminary inquiry the Magistrate could resort to any method for conducting the preliminary inquiry which means that he could summon any witness in order to arrive at the truth of the matter. Therefore, it was quite in conformity with this that he could and should have summoned the witnesses when a request had been made in writing by the complainant to him. It was only after he had held an inquiry u/s 202 Code of Criminal Procedure and found that there was no truth in the allegations made in the complaint that he should have dismissed the complaint under the provisions of Section 202 Code of Criminal Procedure. He had no power to dismiss the complaint for the non-production of the witnesses. The court itself can collect the evidence in order to arrive at the truth, or otherwise of the allegations stated in the complaint.

The authority Chandra Deo Singh Vs. Prokash Chandra Bose and Another, fully applies to the case and the error in this case is of a kind which goes to the very root of the matter. The submission made by the learned Counsel for the respondent that no prejudice has been caused to the Petitioner by the dismissal of this application is not correct inasmuch as his allegations, which have not been probed into have been dismissed without giving any opportunity of being heard. He had already moved an application that the witnesses be summoned and examined in order to substantiate the allegations made by him. But the court resorted to a very cryptic procedure in dismissing the application.

The Magistrate, therefore, has acted illegally in the exercise of his jurisdiction and, therefore, the order dismissing the complaint must be quashed and the case must be sent back for further inquiry. Consequently the revision petition is allowed and the case is sent back for further inquiry u/s 436 of the Code of Criminal Procedure.