Crl. Misc. No. M-11254 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No. M-11254 of 2010 (O&M) Date of Decision : 13.10.2011 Puran Chand .......... Petitioner Versus Premwati & another ...... Respondents **** CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present:- Mr. Aditya Sanghi, Advocate for the petitioner. Mr. S.K. Yadav, Advocate for respondent No.1. Mr. S.S. Goripuria, DAG, Haryana for respondent No.2-State. *** AUGUSTINE GEORGE MASIH, J. In this petition, petitioner has prayed for quashing of Criminal complaint No. 150-C dated 30.4.2001 (Annexure P-1) filed by respondent No.1 on 2.5.2001, as also the summoning order dated 18.8.2009 (Annexure P-2), passed by Chief Judicial Magistrate, Rewari and order dated 14.11.2009 (Annexure P-3) passed by the Additional Sessions Judge, Rewari, vide which the revision petition preferred by the petitioner stands dismissed and other consequential proceedings arising therefrom. The undisputed facts of the case are that a complaint dated 2.5.2001 (Annexure P-1) was filed by respondent No.1 Premwati wife of Murari Lal, which was adjourned to 15.9.2001 for recording of preliminary evidence on the complaint. Statements of witnesses were recorded on Crl. Misc. No. M-11254 of 2010 -2- 15.9.2001, 19.1.2002, 18.5.2002. In all six witnesses came forward to depose before the Court. The case was adjourned to 16.11.2002 and thereafter to 4.1.2003 and 22.2.2003 but no further witness came present and ultimately vide order dated 5.4.2003, learned Chief Judicial Magistrate, Rewari exercising his powers under Section 202 Cr.P.C. sent the complaint to the Station House Officer, Police Station, City Rewari (hereinafter referred to as 'the SHO') for investigation and report. The report of the SHO dated 19.4.2003 was received by the Court and the case was adjourned to 9.8.2003 for consideration. In this report the conclusions were that the allegations levelled in the complaint are not confirmed. A protest petition was filed by the complainant and the case was adjourned to 9.7.2004 and then to 4.12.2004, 12.2.2005, 3.10.2005, 19.1.2006, 21.1.2006, 25.12.2006, 6.2.2006, 14.2.2006, 22.2.2006, 30.3.2006, 5.5.2006. On 10.5.2006, the Court further sent the matter for enquiry under Section 202 Cr.P.C. to the Additional Deputy Commissioner, Rewari (hereinafter referred to as 'the ADC'), who submitted his report dated 30.1.2009. In this report, finding was returned that there is no truth in the allegations levelled in the complaint filed by the complainant and the same has been found to be false on enquiry. This report was received in the Court of Chief Judicial Magistrate, Rewari on 4.2.2009 and the matter was adjourned to 9.3.2009 for consideration. The matter continued to be taken up on various dates and ultimately vide order dated 18.8.2009 Chief Judicial Magistrate, Rewari passed the summoning order. This order was challenged through a revision which was dismissed vide order dated 14.11.2009 leading to the filing of the present petition under Section 482 Cr.P.C. It is the contention of the counsel for the petitioner that vide order dated 18.8.2009, petitioner along with others had been summoned by Crl. Misc. No. M-11254 of 2010 -3- the trial Court without complying with and in violation of provisions of Section 202 Cr.P.C. without taking into consideration the investigation report submitted by the SHO, as also the enquiry report submitted by ADC and merely relying upon and taking into consideration the statement and evidence which were available on the record in the form of preliminary evidence led by respondent No.1, could not have issued process against the petitioner or other co-accused. He submits that once the Chief Judicial Magistrate was prima facie not satisfied for issuance of process on the basis of the complaint, the sworn statement of the complainant along with the other preliminary evidence led by her, as such issuance of process to the accused was not justified after the submission of investigation report of the SHO and the enquiry report by the ADC wherein it was found that there was no truth in the allegations made in the complaint, when there being no new evidence, as no further evidence was led by the complainant. In support of this contention reliance has been placed on a Supreme Court judgment in the case of Mohammad Atullah vs. Ram Saran Mahto, AIR 1981 Supreme Court 1155. He on this basis prays for quashing of the summoning order as also the revisional order and all the subsequent proceedings arising therefrom. On the other hand, counsel for the complainant submits that it is primarily prima facie satisfaction of the Magistrate that there is sufficient ground for proceeding against the accused and that satisfaction having been reached by the Chief Judicial Magistrate, the order summoning the petitioner and other accused is in accordance with law. Sending of the complaint to the SHO for investigation and report as also to the ADC for enquiry was merely for his satisfaction, which having been achieved on the basis of the complaint and evidence on record, which was produced by the Crl. Misc. No. M-11254 of 2010 -4- complainant, does not vitiate the order impugned by the petitioner in the present petition. He accordingly prays for dismissal of this petition. I have heard counsel for the parties and have gone through the records of the case. The facts as observed above are undisputed. This Court can straight away move on to the procedure, which a Magistrate has / is required to follow under Chapter XV of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and the various stages which a complaint when received by a Magistrate empowered to take cognizance of offence(s), which such complaint of facts constitute, has to go through. Under Section 200 of the Code, a Magistrate on taking cognizance of an offence on complaint is required to examine on oath the complainant and the witnesses present, if any, which has to be reduced to writing and signed by the complainant as well as the witnesses as also the Magistrate, unless as provided in the proviso thereto. If he finds that the complaint and evidence led do not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case, he on consideration of the complaint and preliminary evidence led by the complainant forms an opinion that there is sufficient ground for proceedings would issue process to the accused. In case, the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police officer concerned to investigate into the offence under Chapter XII of the Code and to submit a report. But where the Magistrate deems it insufficient for proceeding against the accused, on submission of the report by the police he may agree with the conclusion arrived at by the police, accept the report and drop the proceeding but before doing so, he Crl. Misc. No. M-11254 of 2010 -5- shall give an opportunity of hearing to the complainant or he may take cognizance under Section 190(1)(b) of the Code and issue process straightway to the accused without being bound by the conclusion of the Investigating Agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed. He may order further investigation if he is satisfied that the investigation was made in a perfunctory manner or may enquire into himself or get it enquired by such other person as he thinks fit for the purpose of deciding where there is or no sufficient ground for proceeding. On further enquiry/ receipt of the enquiry report, the Magistrate is required to apply his mind to the complete record and thereafter if on consideration of the same he is of an independent opinion on the basis of the material available on the enquiry report that there is sufficient ground for proceeding, may summon the accused. In case he finds it otherwise, he shall give an opportunity of hearing to the complainant, who may be permitted to lead further evidence and if on consideration of such evidence, the Magistrate comes to a conclusion that there is sufficient ground to proceed may order summoning of the accused against whom such material is available. The above would show that the Magistrate on taking cognizance of a complaint there are different stages at which he can satisfy himself to form an opinion with regard to there being sufficient ground for proceeding against the accused i.e. (i) after recording of preliminary evidence of the complainant; (ii) after the receipt of the report of the police officer to whom the investigation was marked; (iii) after self enquiry and/or report of enquiry received from the person to whom the said enquiry was marked and after further evidence is led by the complainant on conclusion Crl. Misc. No. M-11254 of 2010 -6- of stage (ii) and (iii). At each stage as the case proceeds the satisfaction or otherwise of the Magistrate is presumable. This obviously means that at different stages whatever evidence is on record that has to be considered by the Magistrate and thereafter on forming an opinion that there is sufficient ground for proceeding against the accused, issue process. If it is otherwise, the Magistrate may proceed to dismiss the complaint. It would not be out of way to mention here that the complainant has to be heard by the Court before dropping the proceedings as a whole or not initiating process against all / some / any of the alleged accused at every stage where the Court is not satisfied that there is sufficient ground to proceed with the complaint, which means consideration of the protest petition, if any submitted by the complainant at any/each of these stages. In the present case, the Chief Judicial Magistrate after the recording of the preliminary evidence found that he was not satisfied that the complaint and the sworn statement of the complainant and the evidence led by the complainant justified the issue of process to the accused and therefore sent the complaint for investigation and report to the SHO. The SHO, on investigation reported that the allegations levelled in the complaint were not confirmed meaning thereby that the report as submitted went against the complainant. A protest petition was filed by the complainant. On consideration of the said protest petition also Magistrate was not satisfied so the matter was further sent for enquiry to the ADC, who submitted his report, wherein the conclusion was that there is no truth in the allegations levelled in the complaint by the complainant and the same were found to be false. The complainant did not lead any further evidence or even make a request to this effect to the Magistrate. The Magistrate at that stage proceeded to summon the Crl. Misc. No. M-11254 of 2010 -7- petitioner and other accused merely relying upon the preliminary evidence led by the complainant overlooking and ignoring the stage at which the proceedings had reached which was far beyond the first stage where non- sufficient ground of proceeding to issue process to the accused at that stage can be presumed when the Magistrate sent the complaint to SHO for investigation and report. The process to the accused was issued without even referring to, what to say of considering, the investigation report and the enquiry report of the SHO and the ADC or the material or evidence collected during investigation or enquiry. No further material had come on record which could have been taken into consideration by the Magistrate while issuing process to the accused. No doubt, the Magistrate could have taken into consideration the complaint, statement of the complainant, the preliminary evidence as also other material collected during investigation and / or enquiry but none having been referred to in the impugned order summoning the accused nor there being further evidence produced by the complainant before the Magistrate after the submission of the enquiry report by the ADC, it is difficult to uphold its validity. The order passed by the Chief Judicial Magistrate dated 18.8.2009 cannot be said to be in accordance with law, on the ground that there was no additional material before him except what was already there when he ordered investigation under Section 202 Cr.P.C. to the SHO. The ratio of the judgment passed in Mohammad Atullah vs. Ram Saran Mahto (supra) of the Hon'ble Supreme Court is fully applicable to the case in hand, where it has been held that the Magistrate without reference to any further material after having not been satisfied that there were sufficient material on record, which justify the issuance of process to the accused, cannot take cognizance of the offence and order issue of process to the accused Crl. Misc. No. M-11254 of 2010 -8- merely on the basis of the material which was already available before him when he had ordered an investigation under Section 202 of the Code. In view of the above, present petition is allowed. Summoning order dated 18.8.2009 (Annexure P-2) passed by the Chief Judicial Magistrate, Rewari cannot be sustained and is hereby quashed. This obviously means that the order passed by the Addl. Sessions Judge, Rewari dated 14.11.2009 (Annexure P-3) dismissing the revision petition preferred by the petitioner challenging the order dated 18.8.2009, cannot be sustained and, thus, it also is set aside. However, any observation made herein will have no bearing on the merits of the case. The learned Chief Judicial Magistrate, Rewari may now deal with the complaint in accordance with law. 13.10.2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE