Rameshwar Dayal vs Ram Singh, Col.

M.L. Singhal, J.

Rameshwar Dayal was Congress (I) supporter. In October 1983, he instituted complaint under section 307/148/149 of the Indian Penal Code read with section 25/27 of the Arms Act against Col. Ram Singh accused on the allegations that he exercised his right of vote in 1982 to the Haryana Legislative Assembly. On 20.5.82 at about 1 PM, he along with others was present in the compound of Ahir College, Rewari which is located in front of the residential house of accused Col. Ram Singh. There was gathering of the people awaiting the declaration of the result of the Jatusana Assembly constituency seat. Most of the people constituting that gathering were Congress (I) supporters. Accused Ram Singh was a candidate sponsored by Congress (J). In the compound of the residence of the accused, there was gathering of thousands of people and some persons were inciting the gathering in the Ahir College compound by using abusive language. They were pelting stones at the gathering gathered in "Ahir College" compound. People were expecting that Congress (I) candidate will come out victorious from the Jatusana Assembly Constituency and the people present in the Ahir College compound were raising slogans "Indira Gandhi Jindabad". Police could not control the aggression. In the meantime, Col. Ram Singh accused appeared on the roof of his residential house with gun along with some other persons who were also having guns in their possession. Police personnel were controlling the gathering but the accused fired on the public gathered in the Ahir College compound. As a result of the firing, the complainant received gun shot injuries. Others also sustained gun shot injuries. Persons who had sustained gun shot injuries were taken to Civil Hospital. Case FIR No. 166 was registered on the same day at PS City Rewari. FIR, however, did not represent the true version made by the first informant. It was alleged by Rameshwar Dayal complainant that as accused was Speaker of the Haryana Vidhan Sabha during those days, he did not allow the investigation to be conducted fairly and squarely by the police. In this situation, complainant was left with no other alternative but to approach the court of the Chief Judicial Magistrate, Rewari through complaint under section 307/148/149 of the Indian Penal Code read with Section 25/27 of the Arms Act registered at No. 79C.

In the complaint, the complainant has given the entire background which culminated into this complaint. It is alleged that the accused was having considerable influence/political clout as he was Speaker of the Haryana Vidhan Sabha. Complainant sent many telegrams and applications to the higher echelons of the Police, but no immediate action was taken on FIR No. 166 (ibid) by the police of PS City Rewari. Police investigated the case. Application was moved on 1.6.82 before the Sub Divisional Magistrate, Rewari who issued nonbailable warrants. On 15.6.82, Station House Officer made request for extension of time for the execution of warrants of arrest. Execution of warrants was extended upto 15.7.82. Accused was declared successful to the Haryana Legislative Assembly as Congress (J) sponsored candidate. He joined Congress (I) and was taken as Minister with Transport portfolio. No action was taken on FIR No. 166 (ibid) by the police because of the political clout which the accused was wielding in Haryana. Complainant moved application on 9.8.83 before the Judicial Magistrate First Class, Rewari so that the case was investigated and did not remain in cold storage. Police report was sent for. Report sent by the police was influenced by the accused and the police sent cancellation report. Complainant was not hopeful from the very beginning of justice being meted out to him by the police and, therefore, he instituted complaint (ibid).

Chief Judicial Magistrate, Rewari after going through the preliminary evidence led by the complainant with a view to sustaining the complaint found that there were sufficient grounds to proceed against the accused under Section 307 Indian Penal Code and he accordingly ordered the accused to be summoned for the offence punishable under Section 307 Indian Penal Code vide order dated 24.12.94. Col. Ram Singh went in revision to the Court of Session against the order dated 24.12.94 passed by the Chief Judicial Magistrate, Rewari summoning him for the offence punishable under section 307 Indian Penal Code vide order dated 4.11.96. Additional Sessions Judge, Rewari accepted the revision petition and set aside the order passed by the Chief Judicial Magistrate, Rewari and dismissed the complaint and upheld the cancellation report submitted by the police and accepted by the Magistrate on May 24, 1991.

Aggrieved by order dated 4.11.96 passed by the Additional Sessions Judge, Rewari, Rameshwar Dayal complainant has knocked the door of this Court through this criminal revision filed under Sections 401/482 Criminal Procedure Code.

Initially case FIR No. 166 (ibid) was registered the same day at PS City Rewari under section 307/148/149 Indian Penal Code and 25/27 Arms Act. That case was cancelled by the police. Cancellation report was accepted by the Magistrate. After the cancellation report had been accepted by the Magistrate, there was no other alternative left with Rameshwar Dayal but to invoke powers of the Criminal court under Section 190 Cr.P.C. Section 190 Cr.P.C. lays down how Magistrate''s power, to take cognizance of offence, can be invoked. Section 190 Cr.P.C. reads as follows :

"190. Cognizance of offence by Magistrates

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try."

Section 190(1)(a), Cr.P.C. thus empowers the Magistrate to take cognizance of an offence upon receiving a complaint of facts constituting such offence independently of a police report before him of such facts. While inserting Section 190(1)(a) in the Code of Criminal Procedure, the Parliament visualised a situation were the police may not be able to demonstrate independence and impartiality while investigating a case because of some one''s political clout. So that there might not be denial of justice to the weak on that account, the Parliament, in its wisdom, gave the weak an independent right to go to the court, make a complaint as defined in the Code of Criminal Procedure and pray for redress. "Complaint" as defined in Section 2(d) of the Code of Criminal Procedure means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." "Police report" as defined in section 2(r) of the Criminal Procedure Code means "a report forwarded by a police officer to a Magistrate under sub section (2) of section 173. Section 173 Cr.P.C. lays down that :

(1) Every investigation under this chapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating (a) the names of the parties : (b) the nature of the information : (c) the names of the persons who appear to be acquainted with the circumstances of the case : (d) whether any offence appears to have been committed and, if so, by whom : (e) whether the accused has been arrested : (f) whether he has been released on his bond and, if so, whether with or without sureties : (g) whether he has been forwarded in custody under section 170.

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The court is only to ascertain on the allegations in the complaint or sworn statements of the complainant and his witnesses whether there is prima facie case to proceed against the accused and not to go into the details and come to the conclusion whether those allegations are sufficient to convict the accused. Prima facie evidence means the evidence which is sufficient to establish a fact or to raise a presumption of truth of facts unless controverted. At the time of taking cognizance of an offence, the court is not required to closely scrutinize the evidence but it has only to satisfy that a prima facie case is made out against the accused.

Learned Magistrate examined a number of witnesses in the preliminary inquiry and after hearing Rameshwar Dayalcomplainant and going though the evidence produced by him during the course of preliminary inquiry, he found that there were sufficient grounds to proceed against the accused under section 307 Indian Penal Code and, therefore, he ordered him to be summoned. While passing the order under Section 204 Cr.P.C., the Magistrate was mainly concerned with the allegations made in the complaint and the evidence led in support thereof and he was only to be prima facie satisfied whether there existed sufficient grounds to proceed against the accused and it was not his province to go into the merits and demerits of the case and evidence could not be meticulously gone into at that stage. As it was a complaint labelled as one under Section 307/148/149 Indian Penal Code and section 25/27 Arms Act, the Magistrate had no jurisdiction to go into the appreciation of evidence meticulously but to summon the accused for an offence punishable under section 307 Indian Penal Code if there was prima facie case against him and after hearing him and the accused to commit the accused for trial to the Court of Sessions. If the accused is committed to the Court of Sessions by a Magistrate for an offence alleged to have been committed, which in the opinion of the Magistrate is exclusively triable by the Court of Session, the accused on appearing before the Court of Sessions can urge that no offence at all is made out against him or that an offence triable only by Judicial Magistrate of the first class is made out against him. In that event, the Court of Sessions can discharge him altogether or can charge him for an offence triable by Judicial Magistrate First Class and send the case back to the Chief Judicial Magistrate for trial by him. Intention of the Parliament is that in case an offence is labelled as one falling within the exclusive domain of the Court of Session, there should be application of mind by the Court of Session alone to this aspect of the matter and not by the Magistrate because if the Magistrate proceeds to examine whether an offence falls within his domain or within the domain of the Court of Sessions, there may be failure of justice and also the usurpation of the jurisdiction of the Court of Session.

Acceptance of the final report by the Magistrate submitted by the police cancelling the case is no bar to the taking of cognizance of the offence later on by the Magistrate. I am supported in this view by a judgment of the Delhi High Court reported as Dr. M.P. Srivastava and another v. Sq. Ldr. K.V. Vashishtha, 1991(1) RCR(Crl.) 472 : 1991 Crl. Law Journal 12 , where it was held that despite the fact that Magistrate had earlier accepted final report of the police in respect of the FIR in question, the Magistrate is not legally barred from taking cognizance of the offence on the basis of the complaint, may be on the similar facts and allegations which were subject matter of investigation by the police on the basis of the FIR". It was thus the independent right of Rameshwar Dayal to seek redress to his grievance through the instrumentality of complaint in view of Section 190 Cr.P.C. This right could not be taken away even if there had been FIR earlier on the same facts or on different facts constituting the offence and that FIR had been cancelled by the police and the same Magistrate had accepted the cancellation report submitted to him by the police. It is also clear that at the stage of summoning, the Magistrate was not required to make a microscopic appreciation of evidence before him. He was required only to see whether there was prima facie case against the accused warranting his being put up on trial. In this case, the order that was being challenged before Additional Sessions Judge was the one passed by Chief Judicial Magistrate, Rewari in complaint titled Rameshwar Dayal v. Ram Singh under section 307/148/149 Indian Penal Code and 25/27 Arms Act and, therefore, the Additional Sessions Judge was required only to concentrate upon the material placed by Rameshwar Dayal in his complaint in support thereof and it was not his province to advert to the investigation of the FIR case. Accused could have used that investigation in his defence after charge had been framed and the prosecution evidence had been led and the statement of accused under section 313 Cr.P.C. recorded. In para 6 of the order of Additional Sessions judge, he says that the complainant led evidence to his entire satisfaction. He also produced before learned Chief Judicial Magistrate the entire police record of the report prepared under section 173 Cr.P.C. for cancellation of the case. The learned trial Magistrate arrived at the conclusion that a good prima facie case was made out for issuing process against the accused Ram Singh for the alleged commission of offence punishable under section 307 Indian Penal Code. He summoned him for 22.2.95 to face trial."

Cancellation report was prepared by the DSP, Rewari on 4.9.85. It was forwarded to the Magistrate on 23.9.88. It was accepted by the Magistrate on 24.5.91. Complaint was filed on 22.10.83. It was submitted by the learned counsel for the petitioner that the Magistrate could not have taken cognizance of the complaint so long as FIR was pending investigation and what the Magistrate should have done was to keep the complaint in abeyance and direct the police to speed up the investigation of FIR case. Cognizance of the complaint and recording evidence thereon was improper when the police investigation was in progress. Section 210 Cr.P.C. lays down the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. It reads as follows :

"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a compliant case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducing the investigation.

(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."

It is thus clear that in this case if the Magistrate did not keep the complaint in abeyance, there had been no such infraction of procedure that affected substantial justice. In this case, the police cancelled the FIR. Cancellation report was submitted to the Magistrate by DSP, Rewari on 4.9.85 which was accepted by the Magistrate on 24.5.91. Nonkeeping of the complaint in abeyance would have mattered if the police had not cancelled the case but submitted police report, if not with regard to Col. Ram Singh but with regard to some others. In that case, the complaint case would have been clubbed into the challan case and the trial commenced in the challan case. Code of Criminal Procedure lays down procedure for the trial of criminal cases. Procedure as laid down for the trial of criminal cases in the Code of Criminal Procedure has to be adhered to with a view to advance justice. In this case, there has been no failure of justice if the complaint was proceeded with earlier and challan had not been put in. Instead, cancellation report was put in which was accepted. In my opinion, the learned Additional Sessions Judge should not have imported into the impugned order dated 4.11.96, so far as the investigation of case FIR No. 166 (ibid) was concerned. He should have concentrated his attention only to the allegations in the complaint and the evidence led in support thereof by Rameshwar Dayal with a view to find out whether the Magistrate had unjustly summoned Ram Singh or that there were sufficient grounds before the Magistrate for summoning Ram Singh. Additional Sessions Judge appears to have forgotten that the scheme of Section 190 Cr.P.C. envisages an independent right to an aggrieved person to seek redress from the court where the police has failed to give him redress and where he suspects the mala fides of the police impinging upon the fair and impartial investigation of the case by the police. Where would an aggrieved person go if the police does not hear him and gives him no redress and the law does not provide him an alternative method to seek redress ? If the legislature takes away the right granted to an aggrieved person under section 190(1)(a) Cr.P.C., people''s faith in the rule of law will be considerably eroded and people will feel that there is "police raj" and they are at the mercy of the police.

Faced with this position that the learned Additional Sessions Judge has travelled beyond the track marked by the canons of law and justice, the learned counsel for the petitioner submitted that the matter is 16 years old. Occurrence allegedly took place on 20.5.82. FIR was registered on 20.5.82. Police investigated the FIR. DSP submitted the cancellation report cancelling the FIR on 4.9.85. It was forwarded to the Magistrate on 23.2.88. Magistrate accepted the report on 24.5.91. Complaint was filed on 20.10.83. Magistrate passed order on 24.12.94 summoning Col. Ram Singh for being proceeded against under section 307 Indian Penal Code. Additional Sessions Judge, Rewari set aside that order on 4.11.96. It has been submitted that the matter has been pending for the last 16 years. Accused has been vexed all these 16 years. This criminal case has been hanging on his head like a damoclean sword for the last 16 years. If the impugned order passed by Additional Sessions Judge is set aside, the consequence will be that the accused will be before the Magistrate who, in pursuance of his order dated 24.12.94, commit him to the Court of Session for trial under section 307 Indian Penal Code. Court of Session will take 23 years in concluding the trial. That would mean 1819 years in taking the occurrence, which took place in 1982, to its logical end. It has been submitted that in view of inordinate delay and the nature of the offence involved, there should be no retrial even though the dismissal of the complaint by Additional Sessions Judge may look improper to this Court. In support of this submission, he drew my attention to S. Guin and others v. Grindlays Bank Ltd., AIR 1986 SC 289; Abdul Rehman Antulay etc. v. R.S. Nayak and another, AIR 1992 SC 1701; and Mohir Kumar Ghosh v. State of West Bengal and others, XI1989(3) Crimes 436. It is no doubt true that right to speedy trial is fundamental right of an accused as embodied in Article 21 of the Constitution of India and quick justice is a sinequanon of Article 21 of the Constitution of India. It is, however, equally true that in this case Rameshwar Dayal does not seem to be responsible for obstructing the quick dispensation of justice. Looking to the interest that the police was evincing in the investigation of the FIR case because of the heavy political clout of the accused, he had to institute complaint in the year 1983. FIR registered in the year 1982 was cancelled in the year 1991. Magistrate passed an order summoning the accused in the year 1994. Additional Sessions Judge passed the order setting aside the order of the Magistrate in the year 1996. Why should the interest of justice suffer qua Rameshwar Dayal who says that he is the real aggrieved person if the police and the courts have been remiss in the performance of their duty. So, this revision is accepted and the impugned order passed by Additional Sessions Judge is set aside. JUDGMENT passed by the Magistrate in the complaint case dated 24.12.94 is restored. Parties shall appear before Chief Judicial Magistrate, Rewari on 1.7.1988, for further proceeding according to law.

Revision accepted.