IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.401 of 2003 CHANDRAMANI KUMAR Versus STATE OF BIHAR & ORS ----------- For the petitioner; Mr.Bijay Bhushan Prasad; For the Opposite Party; M/s Ganesh Prasad Singh,Sr. Advocate and Manoj Kumar,Adv. 6 18.8.2008 This revision application has been preferred against the order dated 13.5.2003 passed by the Chief Judicial Magistrate, Samastipur in C. R.No.497 of 2002 whereby the learned Magistrate has dismissed the complaint of the petitioner under Section 203 of the Code of Criminal Procedure. The complainant/ petitioner is Sala of the deceased, Jitendra Rai @ Teni Rai and accused/opposite parties are officer-in-charge of Musharigharari police station, Inspector of police and other police personnel. The case of the complainant in brief is that on the alleged date of occurrence i.e. 2.5.2002 the complainant was in Sasural of his sister. At about 3 P.M. all accused persons armed with various weapons came at Darwaja in jeep and forcibly made the victim, Teni Rai, to sit in the jeep. At some distance they dropped the victim from the jeep and officer-in-charge repeatedly shot at him from his service revolver. As a result, the victim died at the spot. In the meantime, some more police personnels came in the jeep and took away the dead body of Teni Rai and hence this complaint petition. In course of inquiry under Section202 of the Code of Criminal Procedure the complainant examined five witnesses. The 2 statement of complainant was also recorded by the learned Magistrate on oath. On perusal of the order in question it appears that all witnesses including the complainant fully supported the case of prosecution. However, the learned Chief Judicial Magistrate dismissed the complaint on two grounds; firstly no motive was assigned for commission of occurrence and secondly no documentary evidence was filed in support of death of the victim. The learned counsel for the petitioner challenged the order in question both in law as well on fact. It is submitted that the learned Chief Judicial Magistrate has dismissed the complaint wholly on untenable grounds. At the stage of inquiry the learned Magistrate had no jurisdiction to examine the evidence meticulously. Only prima facie material had to be seen by the Magistrate in order to summon the accused. It is further submitted that Opposite Parties have filed counter affidavit in which, vide paragraph 3, they have admitted that Teni Rai was murdered (encounter) by the police personnel. On the other hand, learned counsel for Opposite Parties have supported the order in question and submitted that counter affidavit and documents filed by them would go to show that the deceased was a veteran criminal. On the alleged date of occurrence secret information was received by the police that the deceased along with some other criminals armed variously had assembled in a orchard in order to commit crime and on such information three police teams 3 rushed to the spot. The criminals apprehending their arrest fired upon the police party and the police in their defence too fired in which two persons died including Teni Rai. A large number of arms were also recovered from their possession. A first information report bearing Musrigharari P.S. case No.28 of 2002 was also lodged against the deceased and others. After investigation charge-sheet has also been submitted against them. In support of the contention several documents have been filed which are annexure-1, the first information report, annexure-B series, the seizure lists, annexure-C, inquest report, annexure-D, paper cuttings, annexure-G series, the injury reports of police personnel and annexure-H, supervision report etc. Section 203 of the Code of Criminal Procedure provides for dismissal of complaint which runs as follows; “Section 203. Dismissal complaint- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.” It goes to show that the Magistrate can dismiss the complaint only on the ground that in his opinion there is no sufficient ground for proceeding. The word ‘no sufficient ground for proceeding’ has been explained by the Apex Curt in a decision reported in AIR Supreme Court 2639 (Nirmaljit Singh v. The State of West Bengal and others). In paragraph 22 the Apex Court has observed as follows; “Under Sec. 190 of the Code of Criminal Procedure, a 4 magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can under S.200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. Under Section 202, a magistrate, on receipt of a complaint , may postpone the issue of process and either inquire into the case himself or direct an inquiry to be made by a magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood,. Under Section 203, he may dismiss the complaint, if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under Section 202, there is in his judgment “no sufficient ground for proceeding”. The words ‘sufficient ground’ used also in Sec.209 have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction. (See R.G.Ruia v. state of Bombay, 1958 SCR 618 = (AIR 1958 SC 97.) In Vadilal Panchal v. Ghadigaonkar (1961) 1 SCR 1 =(AIR 1960 SC 1113) this Court considered the scheme of Sections 200 to 203 and held that the inquiry envisaged there is for ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. The section does not say that a regular trial of adjudging the truth or otherwise of the person complained against should take place at that stage for such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts The first part lays down the materials which the magistrate must consider, and 5 the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. In Chandra Deo Singh v Prokash Chandra Bose, (1964) 1 SCR 639 =(AIR 1963 SC 1430) where dismissal of a complaint by the Magistrate at the stage of section 202 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (P.653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process should not be refused. Unless, therefore the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a primna facie case. In a revision against such a refusal, the High Court also has to apply the same test. The question, therefore, is, whether while applying this test the Chief Presidency Magistrate was right in refusing process and the High Court in revision could confirm such a refusal.” If the case in hand is considered in the light of above decision of the Apex Court this Court has no doubt that the learned Magistrate has dismissed the complaint on wholly untenable grounds. He has not properly appreciated the scope of Section 202 of the Code of Criminal Procedure. The grounds mentioned in the impugned order for dismissal of the complaint are not to be considered at the stage of taking cognizance. Apart from it, the murder of the deceased by the police personnel in encounter has already been admitted in the counter affidavit filed by the opposite parties with certain defence for that. In view of the aforesaid decision of the Apex court , the defence has to be considered at appropriate stage of the trial and not at the stage of 6 issue of process. In the result, this revision application is allowed. The order in question dated 13.5.2002 is hereby set aside and the matter is remitted back to the trial court for further inquiry and fresh decision in the light of the aforesaid decision of Apex court in accordance with law. B.Jha (Ghanshyam Prasad)