Narayan Mahton vs Sidhang Mahton and Another

B.N. Jha, J.—A criminal case, Stats v. Sidhang Mahton, is pending before Mr. H.N. Chandra, Munsif-Magistrate, first class, Jamui. It has a chequered history. The alleged occurrence had taken place on the 10th August, 1963. The petitioner went to the Officer-incharge, Sikandra police station in the district of Monghyr to lodge information with respect to offence under Sections 395 and 460 of the Penal Code but the latter refused to do so. Thereafter he went to the Superintendent of Police, Monghyr, and, according to his instruction the petitioner lodged an information before the inspector of police, Jamui, on the 11th August, 1963. The case of the petitioner was that the opposite party 1 was trying to uproot the petitioner and the members of his family from the ancestral house in village Parsadda, police station Sikandra, district Monghyr.

On the 17th October, 1962, there was a proceeding u/s 144 of the Criminal P.C. in respect of the house and other land. The learned Sub-divisional Magistrate, Monghyr, found possession of the petitioner over the house. According to the case of the petitioner, opposite party 1, along with twelve other persons, forcibly entered the house of the petitioner in his absence and threatened the inmates to leave the house on the 7th August, 1963. In the occurrence, the petitioner''s sons were assaulted and movable properties were also looted away by them. Upon this, the petitioner''s son, Mauleshwari Mahto, filed a complaint in the court of the Sub-divisional Magistrate, Jamui, against them, who summoned opposite party 1 and the twelve other persona. The case was sent for trial before Mr. M.P. Gupta, Munsif-Magistrate, Jamui.

On the 10th August, 1968, at about 10 A.M. opposite party 1 along with 28 other persons variously armed with gun, lathi and bhala, entered the house of the petitioner, assaulted his wife and children and forcibly ousted the inmates and looted away all the properties of the house of the petitioner. As stated above, the petitioner lodged information before the inspector of police, Jamui who started a case under Sections 144, 448 and 352 of the Penal Code against opposite party 1 and 28 others, though the first information report disclosed offences under Sections 395 and 460 of the Penal Code. G.R. Case No. 587 of 1968 was started.

The inspector of police examined a large number of witnesses in support of the prosecution case. There was an unusual delay in the submission of charge-sheet. The petitioner apprehended collusion of the investigating Officer with opposite party 1 and 28 other persons and so he filed a protests cum complaint petition before the Sub-divisional Magistrate, Jamui, on the 13th December, 1963, and prayed that either a charge-sheet against the 19 accused persons be called for or to summon them for trial. The complaint petition was registered as G.R. Case No. 495C of 1963 and was kept pendig till submission of charge sheet.

The police submitted charge-sheet against opposite party 1 alone u/s 448 of the Penal Code and the other 28 persons were left out. The petitioner thereupon filed a petition for summoning the other accused persons as there was ample evidence against them also. On the 18th March, 1964, the learned Sub-Divisional Magistrate, Jamui, after perusing the case diary and examining the petitioner on solemn affirmation directed the trial of opposite party 1 by Mr. M.P. Gupta, Magistrate, first clase, observing therein that the trying magistrate after perusing the preliminary evidence may take action against the other accused persons named in the first information report. He also ordered amalgamation of the complaint case with the police case, viz., G.R. case No. 587 of 1963.

On the 25th August, 1964, Mr. M.P. Gupta framed charges against Opposite party 1 under Sections 144, 380 and 452 of the Penal Code and ordered that the decision as to summoning of the 28 other accused persons would he taken up after taking evidence. He examined three witnesses and was to pass an order on the 28th September, 1963, as to the summoning of the 28 other accused persons, font Opposite party 1 filed an application on the 24th September, 1964, before the magistrate that he was going to file a transfer application of the case from his Court. Thereafter, on the 25th January, 1965, by the order of the Sessions Judge, Monghyr, the case was transferred from the Court of Mr. M.P. Gupta, to the Court of Mr. G.N. Chandra, Munsif Magistrate, first class, Jamui.

On the 80th July, 1965, the petitioner filed an application before the Munsif Magistrate Jamui, praying for summoning seven Witnesses named in his petition as they were material for the case, but the police had left them out to be included in the chargesheet. Upon the aforesaid application the Munsif-Magistrate ordered that the matter would be considered after the charge-sheet witnesses were examined. The examination of the charge. sheet witnesses was over on the 21st January, 1966. but the learned Magistrate did not apply his mind to the desirability of summoning and examining the seven witnesses as was directed by him on the petition of the petitioner dated the 30th July, 1965, nor did he apply his mind as to the previous order in the case passed on the 25th August, 1964, that the decision as to the summoning of other 28 accused persons would be taken up after taking evidence and closed the prosecution case. He examined the accused Opposite party 1 u/s 312 of the Criminal P.C. and fixed the 14th February, 1963, for the examination of the defence witnesses.

In the meantime, when the petitioner came to know about the fact that the Court had closed the prosecution case on the 21st January, 1966, he filed a petition on the 3rd February, 1966, through his private lawyer praying to summon the seven witnesses, who were witnesses to the occurrence in question as the police in collusion with Opposite party 1 had left them out to be included in the chargesheet witnesses though they had been examined before the investigating Officer and'' supported the prosecution case. The Assistant District Prosecutor did not join in this application. The learned Munsiff Magistrate by his order dated the 19th February, 1966, rejected that application of the petitioner dated the 3rd February, 1966, on the ground that the prosecution case had been dosed on the 21st January, 1966, and the accused was also examined u/s 842 of the Criminal P.C. on that date as the private lawyer of the petitioner, who was present on the 21st did not move for summoning the witnesses when the Assistant District Prosecutor verbally asked the Court to close the prosecution case. Being aggrieved by this order, the petitioner moved the Sessions Judge. Monghyr, for making a reference to this Court for directing the Munsif-Magistrate to summon the seven witnesses in the case, but his prayer was not granted by the court. Hence, the petitioner, has some in revision to this Court.

Mr. A.K. Dutt, learned Counsel appearing for the petitioner, has submitted that the learned Magistrate was not justified in closing the prosecution case without deciding the matters, which were deferred to be considered after the examination of some witnesses. The learned Magistrate by his previous order dated the 25th August, 1964, had passed an order that the decision as to summoning the other 23 accused persons should be taken up after taking evidence in the case. Secondly, the learned Magistrate by his order dated the 30th July, 1965, had passed an order on the application of the petitioner to summon seven witnesses named in it that the matter would be considered after the chargesheet witnesses were examined, but he did not apply his mind to the above matters which were to be decided before the prosecution case was closed. There, fore, learned Counsel urged that the learned magistrate was not justified in refusing to examine the seven witnesses when his attention was drawn by the petitioner by his application dated the 3rd February, 1966, praying to him that the seven witnesses were material for the case of the prosecution and they should be examined.

Learned Counsel drew my attention to the order dated the 17th and the 18th March, 1964, passed in G.K. Case No. 495 of 1963. As stated above, after the petitioner lodged a first information report before the inspector of police, Jamui, G.R. Case No. 687 of 1963 was started against opposite party 1 and the police submitted chargesheet under Sections 144, 443 and 842 of the Indian Penal Code though the first information report disclosed offences under Sections 395 and 460 of the the Indian Penal Code against 23 persons besides opposite party 1. That case was transferred to the court of Mr. M.P. Gupta, Magistrate, first class. Before the submission of the chargesheet, the petitioner apprehended collusion of the police with the accused persona and hence he filed a protest petition cum complaint on the 16th December, 1968, and G.R. case No. 495C of 1963 was started.

In this case the learned Subdivisional Magistrate by his order dated the 17th March, 1964, directed that the case be amalgamated with G.R. Case No. 587 of 1963. On the 18th March 1964, he examined the petitioner on solemn affirmation and directed the case to be amalgamated with G.R. Case No. 587 of 1963. The case was transferred to the court of Mr. M.P. Gupta, Magistrate, first class, where G.R. case No. 537 of 1963 was pending for disposal. In these ciroumatan3es of the case, the petitioner was vitally interested in the case pending before Mr. M.P. Gupta. Therefore Mr. Dutt contended that the Magistrate was bound to summon and examine the seven witnesses prayed for by the petitioner. He relied on the provisions of Section 251A(7) and Section 252 of the Code of Criminal Procedure. Section 251A(7) of the Code lays down the procedure for a police case and Section 252 for the complaint case.

Section 251A(7) and Section 252 of the Code read as follows:

251A(7). - On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution;

Provided that the Magistrate may permit the cross examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination.

252(1).- In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, Such Magistrate shall proceed to hear the complainant (if any) and take allseed evidence as may be produced in support of the prosecution:

Provided that the Magistrate shall not be bound to hear any person as complainant in any ea3e in which the complaint has been made by a Court.

(2) The Magistrate shall ascertain from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence far the prosecution, and shall summon to give evidence before himself such of them, as he thinks necessary.

Learned Counsel submitted that even according to Section 251A(7) the Magistrate was bound to take such evidence as may be brought in support of the prosecution. The petitioner filed an application to summon seven witnesses, five of whom were eye-witnesses to the occurrence and though they were examined by the investigating officer, they were not mentioned by the police in the chargesheet as witnesses in order to help the accused persona and, therefore, the petitioner prayed that these witnesses be summoned and examined. In fact, the Magistrate had deferred the examination of those witnesses after the chargesheet witnesses were examined.

Mr. Parmeshwar Prasad Sinha, learned Counsel for the opposite party, on the other hand, submitted that the witnesses were not produced on the 21st January, 1966, when the prosecution case was closed. u/s 251A, of the Code the learned Magistrate was not bound to summon. For this he relied on a decision of the Allahabad High Court in State Vs. Ram Lal and Others, . No doubt the decision supports his contention to some extent. But this Court in the case of The State of Bihar Vs. Polo Mistry and Others, has held that where the prosecutor in a criminal trial has himself undertaken to produce the prosecution witnesses, the entire responsibility for the production, of the evidence in support of the prosecution case is that of the prosecutor: but when the prosecutor has taken recourse to the agency of the Court for securing the : attendance of the prosecution witnesses, it is undoubtedly the duty of the Magistrate to take steps for souring the attendance of the prosecution witnesses in his Court. I respectfully agree with the view taken by G.C. Prasad J., in the Patna case.

Mr. Parmeshwar Prasad Sinha further contended that in a police case the informant have got no locus standi. It is the State, which is the prosecutor. Learned Counsel in support of his view has relied on the observation of the Supreme Court in Thakur Ram Vs. The State of Bihar, , where it has been stated that in a case which has proceeded on a police report a private party has really no locus standi. But at the same time the decision says that barring a few exceptions in criminal matters, the party which is treated as the aggrieved party is the State, which is the custodian of social interest of the community at large. Therefore, this principle that in a police case a private party has really no locus standi is not of universal application, but subject to certain exceptions. Suppose for instance that there is a murder case. The police in collusion with the accused has left out most important eye-witnesses by excluding them as witnesses in the chargesheet. At the time of the examination of witnesses the in. formant, who is the private party, files an application in Court that the police in collusion with the accused has left out certain eye. witnesses, which are material witnesses in the case and they be examined. Gould the Court in such circumstances refuse to consider his application on the ground that the private party has got no locus standi. The present case comes within one of such exceptions as contemplated by the Supreme Court. Therefore, the stand taken by Mr. Parmeshwar Prasad Sinha is not tenable.

Besides this, the present case partakes the nature of both the police case as well as complainant case. G.R. Case No. 4950 of 1963 was amalgamated by the order of the Magistrate with the police case No. 537 of 1963. According to the provisions of Section 252 of Criminal P.C. the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution case instituted otherwise than a police report. A duty is also cast on the Magistrate to ascertain from the complainant or otherwise the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and he shall summon him to give evidence before himself such of them as he thinks necessary.

Therefore, in the circumstances of the present case before the closing of the case the Magistrate ought to have ascertained from the complainant whether some more witnesses were necessary to be examined in the case. The petitioner had already filed an application for summoning seven witnesses in the case and the desirability of examining those witnesses was to be decided by the Magistrate after the close of the evidence of the charge sheet witnesses. Therefore, the refusal by the Magistrate to examine those witnesses was not justified in the circumstances of the present case. Moreover, the examination of the seven witnesses assumes very great importance on account of the fast that the Magistrate by his order dated the 25th August, 1964, passed in G.R. Case No. 537 of 1963, has stated that the summoning of 28 accused persons for trial would be considered after some witnesses were examined. The learned Magistrate before closing the case ought to have decided whether or not the other 28 accused persons as alleged by the prosecution should also be brought on trial. But he did not apply his mind to this aspect of the case also and closed the prosecution case.

The facts stated in the first information report as well as the protest petition disclosed offences under Sections 395 and 460 of the Penal Code, which are triable only by the Court of session. In such case, the present proceeding could be only treated as a commitment enquiry for commitment of the accused. Therefore, in view of the various allegations in this case, it is desirable that the seven witnesses named by the petitioner should be examined in the case. The Magistrate ought to have applied his mind to the previous orders of the Court dated the 25th August, 1964, and the, 30th July, 1965, before closing the prosecution case.

In the result, the application is allowed, the orders of the learned Magistrate dated the 21st January, 1966, closing the case of the prosecution and dated the 19th February, 1966, refusing to summon the seven witnesses named by the petitioner are get aside and the learned Magistrate is directed to summon the seven witnesses as prayed for by the petitioner and examine them, if produced, and then proceed according to law.