State vs Nongmaithem Tomchou Singh and Others

C. Jagannadhacharyulu, J.C.

This is a petition filed by the Government of Manipur u/s 489, Cr.P.C. to revise the order of the Additional Sessions Judge, Manipur, in Original Revision Case No. 50/64/35/65 dated 16.2.1966, refusing to set aside the order of discharge of the respondents passed by the S.D.O., Thoubal u/s 207A (b), Cr.P.C. in C.R. Case No. 159 of 196D dated 20.7.1964.

The ease of the prosecution is that on 5-11.1968 at about 4-00 p.m. one Kumari Nongmaithem Manisang Devi was returning home with her girl friends, namely, N. Sorojini Devi, N. Mani Devi, Y. Sanabanbi Devi, M. Purnima Devi and Kh. Thambalyaima Devi from Kakching Girls'' High School, that when they reached the gate of one Naorm Kanhai Singh of Kakching Chuthek Hingthou, the respondents suddenly emerged from a truck No. MNS 5l02 which was parked there and they forcibly lifted Manisang Devi into the truck to compel her to marry the first respondent N. Tomchou Singh against her will. Though, she raised alarm for rescue, the truck was driven towards Pallal side. The companions of Mahisang Devi reported the occurrence to the family of the girl. Immediately thereupon. Nongmaithem Iboyaima Singh, elder brother of the girl, made a vigorous search along with others for her till about 11.00 a.m. of 6.11.63 They found the truck and its driver, namely, the second respondent, Naorem Shamu Singh behind Pallal village. He made an extra, judicial confession before the search party. The search party brought him with the truck and handed him with the truck to the Pallal Outpost at about 5.50 p.m. on 6.11.65. A written complaint was given by the girl''s brother Nongmaithem Iboyaima Singh. The Outpost Police Station forwarded the arrested accused to the Thoubal Police Station, as it had no jurisdiction to register the case. The Officer-in-charge of Thoubal Police Station registered a case u/s 366, I.P.C. and sent F.I.R. to the Officer-in-charge, Pallal Outpost for investigation. The latter recovered the girl and examined the 6 eye-witnesses to the actual occurrence. He also examined one inhabitant near the place of occurrence and 3 witnesses including the complainant before whom extra, judicial confession was made by the second respondent. After completing the investigation, he filed charge sheet against the respondents u/s 366, I.P.C.

The S.D.M., Thoubal, held enquiry u/s 2O7A, Cr.P.C. But, he examined only 2 witnesses, namely, N. Manisang Devi and N. Sorojim Devi as P.Ws. 1 and 2, out of the six eye-witnesses. He examined the respondents with reference to their evidence only. The first respondent pleaded that the girl was in love with him and produced Exts. B/1 to B/3, letters written by her to him and pleaded that she eloped with him willingly. The other respondents denied having taken part in the occurrence. The S.D.M. examined the evidence of P.Ws. 1 and 2 (N. Manisang Devi and N. Sorojini Devi) and Exts. B/1 to B/3 and held that the first respondent eloped with the girl with her consent but that she subsequently changed hex mind due to the influence of her parents. He, therefore, discharged all the respondents u/s 207A (6), Cr.P.C.

The petitioner herein filed Criminal Revision Case No. 50/64/35/65 on the file of Sessions Court, Manipur, to revise the order of discharge. The revision petition was disposed of by the Additional Sessions Judge, Manipur. He held that the petitioner should have moved the S.D.M. to examine the other eye-witnesses and that though it was a proper case for the Sessions Judge to set aside the order of discharge and to direct the S.D.M. to make fu ether enquiry by examining the other eye-witnesses, the Additional Sessions Judge thought that his hands were tied as the revision petition was filed u/s 437, Cr.P.C., and not u/s 486, Cr.P.C., under the proviso of which the Court could, make the direction after giving an opportunity to the discharged person to show cause why a direction for further enquiry should not be made.

The present Criminal Revision Petition is directed against the above order of the Additional Sessions Judge.

The learned S.D.M. lost sight of the provisions of Sub-sections (4) and (6) of Section 207A, Cr.P.C. Under Sub-section (4), the Magistrate shall take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged. It also enjoins on him that, if be is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other wit. nesses for the prosecution, he may take such evidence also. Normally, though the production or non-production of the eye-witnesses is left to the discretion of the prosecution, still it is a wholesome practice, which is fair to the accused, for the prosecution to examine all the eye-witnesses in the preliminary enquiry. If the prosecution does not do so, the committing Magistrate would be exercising sound judicial discretion if, acing under the second part of the sub-section, he summonses and examines some, if not all the witnesses. Vide also In re, In Re: Pedda Amma Muttigadu and Others, In the present case, there are Bit eye-witnesses The order sheet of the Magistrate shows that he directed that only some of the important eye-witnesses should be summoned and that the summonses were not issued for some adjournments. It would have been a proper exercise of discretion for him to have summoned all the material witnesses to the actual commission of the offence and examined them.

Again, the Magistrate ignored the provisions of Sub-section (6) of Section 207-A. Cr.P.C. He should have considered not only the evidence of P.Ws. 1 and 2 (N. Manisang Devi and N. Sorojini Devi) examined by him and Exts. B/1 to B/3, but he should have considered all the documents referred to in Section 173. Cr.P.C. A consideration of the documents referred to in Section 173, Cr.P.C. includes the statements of the witnesses recorded by the investigating officer u/s 161 and reduced to writing under Sub-section (3) of Section 161, Cr.P.C. Vide Panchanan Ballav and Another Vs. The State, where it was held that the procedure u/s 207A is designed to ensure expedition and that the Magistrate should consider not only the evidence, oral and documentary adduced before him, but also whether the materials as furnished by the documents are capable of being transformed into evidence. In Ramnarayan Mor and Another Vs. State of Maharashtra, by a majority view the Supreme Court laid down the scope of Sub-sections (4), (6) and (7) of Section 207-A, Cr.P.C. The Supreme Court held that there is a statutory obligation upon the Police Officer u/s 173(4), Cr.P.C., to furnish of cause to be famished before the commencement of an enquiry or trial, copies of the Police report, F.I.R. and all other documents or relevant extracts thereof on which the prosecution proposes to rely including the statements and confessions recorded u/s 164, Cr.P.C. and statements recorded u/s 161(3), Cr.P.C. and that the documents, which the Magistrate has to consider under Sub-sections (6) and (7) of Section 207-A, Cr.P.C., include the said statements arid confessions recorded u/s 161(3) and Section 164, Cr.P.C. But, a perusal of the order of the S.D.M., Thoubal, shows that he did not consider the statements of the other eye-witnesses recorded by the Investigating Officer u/s 161(3), Cr.P.C. So, the order of discharge passed by the S.D.M. is illegal.

The S. D. M. usurped the function of the trial Court by appreciating the evidence and impliedly holding that the charge was not proved and not by considering with reference to the material on record whether there were sufficient grounds for committal or not. For this reason also, his order is liable to be set aside. See Tara Singh Vs. The State,

Thus, even though the order of discharge passed by the S.D.M. is illegal and the Additional Sessions Judge was also of the opinion that the S.D.M. should be directed to make further enquiry by taking the evidence of the other eye. witnesses, the learned Additional Sessions Judge thought that he had no power u/s 437, Cr. P.C. to direct further enquiry. There is no substance in his reasoning. As he heard arguments and gave opportunity to the respondents to show cause why the order of discharge should not be set aside, he should have ordered further enquiry u/s 436, Cr.P.C.

So, the order of discharge passed by the S.D.M. is illegal and is liable to be set aside. But, though the High Court has got the power to commit! the respondents to Sessions, I do not propose to pass any such order. For, in the interests of justice and in fairness to the respondents it is necessary that all the eye-witnesses should be examined by the Committing Magistrate. After recording their evidence, the Committing Magistrate should consider their evidence and the documents as laid down by Sub-section (6)and (7) of Section 207-A, Cr.P.C., and then dispose of the case according to law.

The learned Counsel for the respondents agreed that the S.D.M. acted illegally in not considering the statements of the other witnesses recorded by the Investigating Officer. But, he submitted on the merits of the case that the girl was in love with the first respondent, that she wrote Exts. B/1 to B/5 love letters to him, that though the truck passed near the Outpost Police Station, P.W. 1 (N. Manisang Devi) did not raise any alarm and that on merits the prosecution failed to make out any case for committal. The learned Put lie Prosecutor contended that the respondents were not entitled to kidnap P.W. 1, even it she wrote love letters and that the evidence supports the prosecution case and justifies committal of the respondents to the Sessions Court, It is not proper to express any opinion on the merits of the case in this revision petition, lest either side should be prejudiced. The Committing Magistrate will consider the contentions of both the sides.

In the result, the order of discharge passed by the Magistrate is set aside. In Manipur there is no Judicial District Magistrate. So, the case is sent to the Sessions Judge, Manipur. He should make over the cage to the concerned Munsiff-Magistrate for fresh enquiry according to law.