Udai Ram and Others vs State of U.P. and Others

Palok Basu, J.—Udai Ram, Ram Bahal, Krishna Mohan and Girish have preferred this application u/s 482 Code of Criminal Procedure praying that the order of the Magistrate dated 29-5-1984 summoning them under Sections 147, 148, 149 and 302 IPC as upheld in revisional order of VI Addl. Sessions Judge, Basti dated 9-8-1985 be quashed in exercise of powers of this Court u/s 482 Code of Criminal Procedure.

The facts relate to the alleged murder of one Ramdas said to have been committed on 25-9-1975. Ram Lakhan alleging himself to be the informant complainant in the instant case has alleged that relating to the said murder of Ramdas he had forwarded a report addressed to the Superintendent of Police Basti under registered cover as his report was not taken down at the police station since the Station Incharge was friendly with the accused. He further said that the applicants were the real accused having committed the murder of Ramdas on 25-9-1975 around 4 p.m. which incident was seen by various witnesses. He named himself Girdhari, Ram Udit and Bijli as eye witnesses. This complaint was preferred on 11-7-1977 which was forwarded by the Magistrate to the police station for investigation u/s 200 Code of Criminal Procedure. The police reported that the allegations contained therein were not correct or truthful and no case for proceedings against the accused was made out. Ram Lakhan objected to the acceptance of the said report (final report) and said that the police-station has acted malafide. At this, the Magistrate directed re-investigation by the police which order was complied with and yet another Final Report came. The Magistrate however, did not accept the Final Report and instead proceeded to examine Ram Lakhan u/s 200 Code of Criminal Procedure and also examined Sita Ram, Girdhari, Kamla Pandey, Shob Ram Pandey, Harshdeo Ram, and Onkarnath Shukla u/s 202 Code of Criminal Procedure on the strength of the said statement of the witnesses he proceeded to pass the impugned order dated 29-5-198.4. The applicants'' revision before the learned Sessions Judge having been dismissed by the VI Addl. Sessions Judge Basti in Criminal Revision No. 469 of 1984 by the impugned order dated 9-8-1985, the present application u/s 482 Code of Criminal Procedure has been filed.

In the statement of the witnesses it has come that relating to the alleged murder of Ramdas one Nirahu Singh had lodged a FIR which was duly investigated by the police as Crime No. 152 and a charge sheet was ultimately submitted against Balihari Pandey, Baljeet Pandey, Ram Naresh Pandey, Kishundeo Pandey, Ram Lakhan Pandey (complainant in the instant case) and Ram Kuber Pandey. This charge-sheet ultimately became the subject matter of Sessions Trial No. 124 of 1975, State v. Balihari and Ors. which ended in order of acquittal of all those accused passed on 17-11-1976.

Sri G.D. Misra, learned Counsel for the applicants has argued that the impugned order summoning the accused is illegal as well as contrary to the facts and, therefore, should be quashed for the reasons that (i) the State having filed two Final Reports regarding the present allegations and having filed a charge sheet containing entirely different version relating to the murder of Ramdas is estopped from prosecuting the applicants who were the witnesses on the former occasion in the said charge sheet and, therefore, the State is estopped from prosecuting this case, (ii) the procedure of complaint cases having been resorted to by the Magistrate which was incumbent upon him to have examined all the eye-witnesses in view of the provisions contained in Section 202 Code of Criminal Procedure and that having not been done, the order is illegal, (iii) the continuance of the present proceedings would amount to an abuse of the process of the court as the incident is of the year 1975 and there is no likelihood of any evidence whatsoever how forthcoming in the trial even if it goes on and, therefore, the impugned order should be quashed.

Sri Ravindra Rai, Advocate, Counsel appearing for the opposite party-complainant Ram Lakhan has refuted all the arguments noted above and has said that all those principles are not attracted as it it is a simple case of a cross version in a murder case being put forward in the court of law by rival party and, therefore, the legal process should be allowed to be completed and no untimely termination of the proceedings is called for.

Learned Counsel for the applicants vehemently argued that if not the Section 300 Code of Criminal Procedure atleast principles behind it should be attracted to the present case. He has relied upon the decision of the Supreme Court, Manipur Administration Vs. Thokchom, Bira Singh, . In this case however, it does not appear to be pertinent to hold that Section 300 Code of Criminal Procedure is at all attracted to the facts of the present case. The earlier trial though related to the alleged murder of Ramdas was certainly between different accused and the State and, therefore, the subsequent trial (i.e. the present proceedings) was not between the same parties. The language used in Sub-section (1) of Section 300 Code of Criminal Procedure leaves no scope for the different persons litigating on the second occasion to rely upon the judgment of the court on the former occasion between different parties and for this very reason the principles of ''Issue Estoppel'' as laid down by the Supreme Court in the aforesaid decision too are not attracted.

The present facts can at best be equated with cases where two cross versions of the same incident being forwarded to the court of law for trial and decision. The principles underlying the decision of cross versions set up by rival parties relating to an incident need not be emphasised here as when the former trial was going on this complaint giving rise to the present case somehow had not come to be tried nor any order were passed therein. It is apparent that proceedings in the said complaint case continued with renewed vigour after acquittal order was passed in the former trial relating to it. Therefore, the present case must depend upon the evidence produced or to be produced in the instant case.

From the perusal of the order of the Magistrate it is apparent that he had addressed himself to the question pleaded by complainant himself that the former trial which had ended in his acquittal had started because of police partisanship and has thus summoned the accused-applicants because the statement of the witnesses had satisfied him as to the making out of a prima facie case. Therefore, there is no error in the order of the Magistrate for having summoned the applicants to face an enquiry before him.

Coming to the second point relating to the procedure applicable it may be noted that the Magistrate by his order directed the police to investigate the complaint made before him. There may have existed some controversy about legal proposition as to whether it was incumbent upon the Magistrate to follow the procedure laid down u/s 202 Code of Criminal Procedure if the police submits a Final Report after he had ordered for investigation into the complaint made before him. However, after the Supreme Court decision in India Car. Pvt. Ltd. v. The State of Karnataka AIR 1969 SC 885 this controversy has been finally settled. But again in the instant case even that question does not arise. Here, the initial cognizance itself was taken on a complaint and the investigation was not done u/s 202 Code of Criminal Procedure. If the police had taken an attitude not acceptable to the complainant, his right to examine his witnesses u/s 202 Code of Criminal Procedure cannot be permitted to be taken away because of the said report of the Investigating Officer. A combined reading of Sub-section (1) and (4) of Section 202 Code of Criminal Procedure makes it clear that the right of the Magistrate to take evidence of witnesses on oath, if he thinks fit, is over and above his right to get au investigation to be made by police officer. Even after negative police report the Magistrate has to "Decide whether or not there is sufficient ground for proceeding." The right and choice of the complainant to examine his witnesses is well safeguarded by the provisions contained in Sub-section (2) and it is always, therefore, open to the Magistrate to go ahead with the enquiry and issue process against the accused if he is satisfied from the statements of the witnesses made u/s 202 Code of Criminal Procedure that a prima facie case is made out. As stated above, the Magistrate has recorded a satisfaction that from the statement of the witnesses examined by the complainant he was satisfied that he should proceed to summon the accused.

However, that is not the end of the controversy in the present case. The complainant had named one Bijli as an eye witness. The said Bijli was not examined u/s 202 Code of Criminal Procedure copy of an affidavit purporting to have been filed by Bijli in the court below has been filed alongwith counter affidavit in order to allege that the examination of Bijli was no more necessary as enjoined by the proviso to Sub-section (2) of Section 202 Code of Criminal Procedure.

The language used in Sub-section (2) of Section 202 Code of Criminal Procedure carries a mandate for the Magistrate which has to be obeyed by him before he issues process and the said mandate is ''He shall call upon the complainant to produce all his witnesses and examine them on oath.'' If the law requires that the Magistrate shall ''examine them on oath,'' the filing of alleged affidavit by one of those eye witnesses cannot be a substitute. Therefore, the complainant was bound to produce all his witnesses including Bijli for having examined by the Magistrate. It goes without saying that the words ''All his witnesses'' obviously gives a choice to the complainant to minimise the number of the witnesses given by him in his list of witnesses and may feel content by examining a lesser number of witnesses. In that event the examination of the lessor number of witnesses shall not be in contravention of the mandate contained in the said proviso. In the instant case, however, there is nothing on the record to indicate that the complainant had, exercised his choice of examining a reduced number of witnesses. Therefore, it must be held that the impugned order of the Magistrate suffers from the vice of not following the proviso to Sub-section (2) of Section 202 Code of Criminal Procedure.

In view of the aforesaid discussion the impugned order of the Magistrate dated 29-5-1984 (Annexure 4) to the Criminal Misc. Application as well as that of VI Addl. Sessions Judge Basti dated 9-8-85 (Annexure 5) to the Criminal Misc. Application cannot be sustained and are hereby quashed. If and when an application is moved by the complainant for examination of all his witnesses in view of the provisions contained in Section 202 Code of Criminal Procedure, it will be decided in accordance, with law.

With the aforesaid observations this application is allowed.