Satish Singh vs State Of Uttar Pradesh And Anr.

Dinesh Kumar Singh, J

The petitioner is a practicing lawyer of this court. He has filed the present petition under section 482 Cr.PC for setting aside order dated 31.03.2015 passed by revisional Court/Additional Sessions Judge, Ambedkar Nagar in Criminal Revision No.231 of 2013 setting aside the order dated 20.09.2013 passed by II-Additional Civil Judge(Junior Division)/ Judicial Magistrate, Ambedkar Nagar in Complaint Case No.250 of 2013 whereby the learned magistrate had rejected the complaint of respondent No.2 under Section 203 Cr.P.C.

The petitioner and respondent No.2 are the resident of the same village. Petitioner's bhumidhari land is adjacent to Abadi land of the village. Respondent No.2 had constructed a house near the land of the petitioner. It is alleged that respondent No.2 had been trying to encroach upon the land of the petitioner.

Respondent No.2 belongs to a political party and the said political party was in power in the State at the relevant time. Respondent No.2 was making endeavour to encroach the land of the petitioner in the year 2003. Thereafter, he usurped the land of the petitioner and made construction over it. The petitioner, however, complained to the revenue authorities against the encroachment of his land by respondent No.2 and the revenue authorities evicted respondent No.2 from the land of the petitioner.

When respondent No.2 did not succeed in his attempt to usurp the land of the petitioner and encroach the land illegally, he filed an application dated

02.2013 under Section 156(3) Cr.P.C. for a direction to register an FIR against the petitioner and his family members and investigate thereof.

Learned magistrate treated the said application filed by respondent No.2 as a complaint and proceeded to record the statement of the complainant and witness(es) under Sections 200 and 202 Cr.P.C. The case was registered as Complaint Case No.250 of 2013. Learned magistrate, however, after considering the statement of the complainant (respondent No.2) and witnesses who were brother and daughter of respondent No.2 arrived at a conclusion that there were glaring contradictions in the averments/allegation in the complaint and the statements of the complainant and the witnesses which were inconsistent and contradictory.

Learned Magistrate vide a reasoned order dated 20.09.2013 dismissed the complaint under Section 203 Cr.P.C.

Being aggrieved by the dismissal of the complaint, respondent No.2 filed a revision being Criminal Revision No.231 of 2013 in which the impugned order dated 31.03.2015 has been passed.

Heard Sri Satish Kumar Singh, the petitioner in-person and learned A.G.A. for the State. Despite notice no one has put in appearance on behalf of respondent No.2.

Learned Magistrate in the order dated 20.09.2013 after considering the statements of the complainant and the witnesses had come to the conclusion that no prima facie case was made out for summoning the proposed accused and, therefore, rejected the Complaint Case No.250 of 2013. Learned Magistrate had recorded a finding that the complainant in his statement under Section 200 Cr.P.C. had stated that at the time of incident his son, Gulab was also present with him at his agricultural field. He further said that the accused assaulted him and his son by kicks and fists. However, neither in the complaint nor in the statement of the witnesses under Section 202 Cr.P.C. there was any mention of his son being present at the time of incident.

Learned magistrate had further recorded a finding of fact that the complainant in his statement had said that the accused thereafter, assaulted him and his son inside the house and on raising alarm one Ram Charan and his daughter, Anju came there. However, the witnesses under Section 202 Cr.P.C. said that the accused had assaulted the complainant and his daughter inside the house but in the complaint, Anju, the daughter of the complainant was nowhere mentioned. Thus, there were glaring contradictions in the statement of the complainants, witnesses and averments in the complaint. Specific stand of the complainant was that the accused assaulted the complainant and his son, however, in the complaint it was alleged that the accused assaulted only the complainant and in the statement of the witnesses under Section 202 Cr.P.C. it was alleged that the accused assaulted the complainant and his daughter, Anju. It had further been observed by the learned Magistrate that according to the averments in the complaint, the accused had assaulted the complainant inside his house by lathi whereas in the statement under Section 200 Cr.P.C. the complainant did not mention the assault by Lathi and Danda. It was alleged that the accused assaulted him by kicks and cricket bat.

Considering these glaring contradictions in the complaint, statements of the witnesses and statement of the complainant, the learned Magistrate did not find sufficient ground to summon the accused and, therefore, dismissed complaint under Section 203 Cr.P.C.

Learned Revisional Court, however, has set aside the said order on the ground that at the time of summoning the accused only prima facie case is required to be considered. Contradictions in the statement of the complainant and the averments in the complaint were minor and on that basis it could not be said that no prima facie case was made out.

I have considered the submissions of the petitioner and learned A.G.A. for the State.

When a Magistrate receives a complaint, it is not necessary for the Magistrate to take cognizance for the facts alleged in the complaint which would disclose commission of an offence. The magistrate has discretion in the matter. If a complaint discloses cognizable offence, the magistrate may forward the complaint to the police for investigation under section 156(3) Cr.P.C., such a course is conducive to justice and to save the valuable time of the Magistrate from being wasted in enquiring into a matter by himself. Investigation is a primary duty of the police and, therefore, if the complaint discloses cognizable offence, the Magistrate ordinarily should refer the complaint to the police for investigation. If the Magistrate refers the complaint to the police for investigation, he is not required to examine the complaint on oath inasmuch as he is not taking cognizance of any offence therein. However, if he takes cognizance and adopts the course in chapter XV of the Cr.P.C., thereafter he would not be competent to revert back the precognizance stage.

When a magistrate chooses to take cognizance on a complaint, he can adopt any of the following alternatives:-

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding, he can straightway issue process to the accused but before he does so, he must comply with the requirements of Section 200 and record the evidence of the complainant and his witnesses; or

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself; or

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

If the Magistrate after considering the statement of the complainant and, the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding, he can dismiss the complaint.

The question which arises for consideration in the present case is whether in dismissing the complaint under Section 203 Cr.P.C. after considering the contents of the complaint and the statements of the complainant and witnesses, did the learned Magistrate commit any illegality or exercised his jurisdiction improperly or violate any provision of Cr.P.C. which warranted the learned Revisional Court to interfere with the order passed by learned Magistrate?

Learned Magistrate after considering the averments in the complaint, statements of the complainant and the witnesses was of the opinion that there were glaring contradictions and there was no sufficient material for summoning the accused. Can it be said that the discretion vested in the Magistrate was exercised arbitrarily or against the provision of Cr.P.C.?

Learned Revisional court has set aside the order dated 31.03.2015 of the learned magistrate on the ground that the learned Magistrate is only required to examine whether a prima facie case is made out or not against the accused. Revisional Court has also opined that the contradictions in the statements of the complainant and witnesses and averments in the complaint are minor.

It is well settled that before issuing process and setting criminal proceedings in motion, the learned Magistrate is not only required to see the prima facie case but has also to be satisfied that there is sufficient material to proceed against the accused after examining the contents of the complaint and the statements of the complainant and the witnesses and other evidence.

The Magistrate has to form an opinion of a prima facie case at the time of taking cognizance but when the Magistrate issuing process to summon the accused, he should see whether there is sufficient material to proceed against the accused after considering the averments of the complaint and the statements of the complainant and the witnesses as well as other evidence.

It is no longer res integra that summoning an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion of course. It is not sufficient that a complainant files a complaint and gets his statement recorded and brings one witness for summoning the accused. Learned Magistrate is required to apply his mind to the facts of the case and law applicable thereto. He must examine the nature of allegation made in the complaint and the evidence both oral and documentary in support thereof. The evidence must be sufficient for the complainant to succeed in bringing charge home. The Supreme Court in the caseof Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 in para 28 has held as under:-

Summoning of an accused in 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 bring only two witnesses to support his allegations in the complaint to have the criminal law set into 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. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to 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.

Learned Magistrate has to apply his judicial mind to the contents of the complaint and the material filed therewith for taking judicial notice of an offence. The order must disclose that learned Magistrate while taking cognizance of an offence on a complaint filed under Section 190(1)(a) Cr.P.C. has applied his judicial mind to the allegations in the complaint, the statement of the complainant and, if the Magistrate finds that the complaint does not disclose any cause of action upon examination of the complainant, the Magistrate should not proceed with the complaint and should dismiss it.

The Supreme Court in the case of S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609 while explaining the meaning on taking cognizance of the offence on a complaint in paras 11 and 12 has held as under:-

Section 200 CrPC contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. Then normally three courses are available to the Magistrate. The Magistrate can either issue summons to the accused or order an inquiry under Section 202 CrPC or dismiss the complaint under Section 203 CrPC. Upon consideration of the statement of the complainant and the material adduced at that stage if the Magistrate is satisfied that there are sufficient grounds to proceed, he can proceed to issue process under Section 204 CrPC. Section 202 CrPC contemplates "postponement of issue of process". It provides that the Magistrate on receipt of a complaint of an offence, of which he is authorised to take cognizance may, if he thinks fit, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or have an inquiry made by any Magistrate subordinate to him, or an investigation made by a police officer, or by some other person for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 CrPC. A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by the complainant by filing the complaint or by the police report about the commission of an offence.

"Cognizance" therefore has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed. Only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not. Under Section 200 CrPC, when the complainant is examined, the Magistrate cannot be said to have ipso facto taken the cognizance, when the Magistrate was merely gathering the material on the basis of which he will decide whether a prima facie case is made out for taking cognizance of the offence or not. "Cognizance of offence" means taking notice of the accusations and applying the judicial mind to the contents of the complaint and the material filed therewith. It is neither practicable nor desirable to define as to what is meant by taking cognizance. Whether the Magistrate has taken cognizance of the offence or not will depend upon the facts and circumstances of the particular case.

It is also well established that it is the duty of the Magistrate while passing an order issuing process to an accused to apply his judicial mind to the relevant issues and that must be sufficiently incorporated in the order. However, it is not required that a detailed speaking and reasoned order should be passed at the stage of Sections 190 and 204 Cr.P.C. If the order does not disclose application of judicial mind, the order passed by the learned Magistrate issuing process is liable to be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. As mentioned above the criminal powers against an accused must not be issued in a mechanical manner.

The Supreme Court in the case of Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 has explained the satisfaction required on the part of the Magistrate for formation of an opinion to issue process under Section 204 IPC on a complaint under Section 190(1)(a) Cr.P.C. Paras 22 and 23 of the aforesaid report are extracted herein below:-

The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.

Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Sections 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. The question is not about veracity of the allegations, but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate.

To form a prima facie satisfaction as to whether there are grounds for proceedings on a complaint filed under Section 190(1)(a) Cr.P.C. against the accused, the Magistrate is required to consider the averments of the complaint to examine prima facie truth and inherent improbabilities apparent in the allegations made in the complaint. If the Magistrate comes to the conclusion that the allegations are improbable without considering the defence of the accused, learned Magistrate should not proceed with the complaint.

In the present case, the learned Magistrate for valid and cogent reasons after considering the averments of the complaint and the statements of the complainant and the witnesses was of the opinion that there was no sufficient material/ ground to proceed against the accused. It is not only the prima facie case where the Magistrate chooses to adopt the course provided under Chapter XV of the Cr.P.C. on a complaint but the Magistrate is also required to satisfy himself of the sufficiency of the material/evidence to proceed against the accused. The learned Magistrate cannot be said to have exercised his discretion improperly or against any express provision of law. The learned Magistrate after applying his judicial mind to the evidence and material before him had dismissed the complaint under Section 203 Cr.P.C. The said order passed by the learned Magistrate should not have been interfered with by the Revisional Court.

In view of the aforesaid, I am of the view that the order passed by learned revisional court is unsustainable and the present revision is allowed. Judgment and order dated 31.03.2015 passed by Revisional Court is set aside.