Laxmi Narain Singh vs State of U.P. and Another

A.N. Gupta, J.—One Bhagwati Singh died issueless leaving behind some agricultural land. Laxmi Narain Singh, Petitioner and Jwala Singh, opposite party No. 2 also come under the same family tree. On the death of Bhagwati Singh, Petitioner moved an application for mutation before Tehsildar, Tarabganj, district Gonda u/s 34 of the Land Revenue Act on a printed form. The property of Bhagwati Singh was situated in village Sidhauti but the Petitioner mentioned the name of village as Amauthi. Besides it in the column meant for deceased he mentioned the first name Raj Narain and second name Bhagwati Singh. He did not show that Jwala Singh, opposite party No. 2 was also an interested party. This mutation application was given on the basis of a Will said to have been executed by Bhagwati Singh in favor of the Petitioner. In the column for entering the name of the heirs; first name mentioned by the Petitioner was Ram Prakash son of Ram Pher. On the other hand, opposite party No. 2 had also moved a mutation application in respect of the same property which was pending in the Court of Naib Tehsildar on the basis of Will said to have been executed in favor of opposite party No. 2. The opposite party No. 2 moved an application before Tehsildar that the Petitioner had practiced fraud and cheating by framing the mutation application in the manner that the real objector may not come forward and the property may also not be correctly identified. It may also not be possible to find out who was the deceased and regarding which property mutation application was given. The Topsider after hearing both the parties by means of a detailed order dated 25.2.1989 directed that a complaint be lodged against the Petitioner. Accordingly, complaint was filed against the Petitioner and the learned Magistrate summoned him u/s 419/420/467/468/471. I.P.C. and in pursuance of summoning order Petitioner has appeared before the said Court.

The case was adjourned on several dates for various reasons and it was ordered that the case be listed for evidence u/s 244. Code of Criminal Procedure When this case came to the notice of opposite party No. 2, he moved an application that the case has to be disposed of as if it was instituted on the police report. Learned Magistrate passed an order fixing a date for framing of charge. Aggrieved by this order dated 30.1.1998, Petitioner had approached this Court by filing this petition u/s 482. Code of Criminal Procedure.

It is no doubt true that the case against the Petitioner is based on a complaint but it is not a complaint filed by a citizen against another citizen but a complaint filed by a judicial authority and it has to be dealt with u/s 195, Code of Criminal Procedure Chapter XV of the Code of Criminal Procedure consists of Sections 200 to 203. Section 200, Code of Criminal Procedure provides that if a complaint is filed and before cognizance is taken by the learned Magistrate, he shall examine complainant and witnesses present if any. Section 202 Code of Criminal Procedure provides that the evidence of witnesses shall be recorded before the process is issued. Section 203, Code of Criminal Procedure provides that after recording of evidence u/s 202, Code of Criminal Procedure if the Magistrate does not find any ground to proceed further, he shall dismiss the complaint. Proviso la) to Section 200 lays down that if the complaint has been made by a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint, learned Magistrate need not re-examine the complainant and the witnesses. Thus by the proviso to Section 200, Code of Criminal Procedure the application of Sections 200 and 202, Code of Criminal Procedure regarding the complaint made by the Court or by a public servant has been done away with. In an ordinary case instituted on a complaint, learned Magistrate has to provide an opportunity u/s 244, Code of Criminal Procedure and the accused has a right of cross-examination. Thereafter, if no sufficient evidence is found to proceed further in the matter, the accused shall be discharged u/s 245. Code of Criminal Procedure and if the complaint is not dismissed, the charges are to be framed u/s 246, Code of Criminal Procedure and further cross-examination has to be permitted and after recording evidence, if any, the case has to be decided finally. So far as the procedure in the case instituted on a police report is concerned, after the process is issued, the accused gets a right to contend before the learned Magistrate that there is no sufficient material to frame the charge against him and if the learned Magistrate agrees with it, he may discharge the accused u/s 239, Code of Criminal Procedure, otherwise he shall frame a charge. Thus, there is no difference between the case instituted on a police report and the case instituted on a complaint filed by public servant or by a Court because Section 343, Code of Criminal Procedure provides that in a case instituted on the complaint by the public servant or by a Court, provisions of Chapter XV shall not apply and the case has to be dealt with as if it was instituted on a police report. Sub-section (1) of Section 343 reads as follows:

"Procedure of Magistrate taking cognizance.-(1) A Magistrate to whom a complaint is made u/s 340 or Section 341 shall, notwithstanding anything in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report".

The contention of the learned Counsel for the Petitioner is that by virtue of Section 343(1), Code of Criminal Procedure the application of Chapter XV alone has been prohibited otherwise the case has to be proceeded as a complaint case and the procedure as laid down Under Sections 244 and 245, Code of Criminal Procedure has to be followed. This argument is not correct because if it is accepted, then the words "as far as may be, to deal with the case is if it were instituted on a police report", shall be rendered redundant. Section 343(1). Code of Criminal Procedure consists of two parts; in first part application of Chapter XV, Code of Criminal Procedure has been prohibited in a complaint filed by a public servant or by a Court and in the second part, it has been provided that as far as may be, the case has to be dealt with as if it were instituted on police report. There is a reason for this because complaint is not filed by the public servant or by a Court without making previous enquiry and it is largely based on documentary evidence and, therefore, it is not necessary to follow the detailed procedure prescribed for dealing with a case Instituted on a complaint filed by private citizen. In fact, a very detailed procedure has been prescribed to deal with the cases instituted on private complaint so that unscrupulous persons are not able to harass the good citizens.

In view of the above, it is held that Sections 200 to 203, Code of Criminal Procedure are not applicable to a case instituted on the complaint by a public servant or a Court. Similarly, that complaint has to be proceeded with as if it was instituted on a police report. Although, it is not necessary to clarify, but in order to obviate any confusion, it is directed that the complainant (accused) has a right u/s 239 Code of Criminal Procedure to contend before the learned Magistrate that enough material does not exist for framing of charge against him.

Petition is. therefore, dismissed with the above observations. Interim order is hereby vacated.