Sanjay Singh And Another vs State Of U.P. And Another
2021 Latest Caselaw 9565 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 6826 of 2021
 

 
Applicant :- Sanjay Singh And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Gajala Srivastava,Manish
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Manish, learned counsel for the applicants and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite party.

2. The present application under section 482 Cr.P.C. has been filed seeking to quash the summoning order dated 05.12.2020 in Complaint Case No.151 of 2019 (Ramkewal v. Sanjay), under sections 323, 504 and 506 Indian Penal Code and sections 3(1) (r) and 3(1) (s) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, P.S. Kerakat, District Jaunpur, pending before Special Judge (SC/ST Act), Jaunpur.

3. Learned counsel for the applicants has sought to assail the summoning order principally by contending that the statement of the complainant recorded by the Magistrate under section 200 of the Code of Criminal Procedure, 19731 is not in conformity with the allegations made in the complaint. Further, he has sought to refer to the factual aspects of the matter and the defence, which is to be set up by the applicants.

4. On a specific query as to what are the contradictions between the statement under section 200 of the Code and the complaint, apart from referring to certain factual details, counsel for the applicants has not been able to point out anything specific.

5. Learned Additional Government Advocate-I points out that the statements of the witnesses, namely, PW1 and PW2 recorded before the Magistrate during the course of inquiry under section 202 of the Code contain complete particulars and fully corroborate the allegations made in the complaint. It is submitted that the statement of the complainant under section 200 also cannot be said to be contradictory to the complaint version. Further contention is that upon a consideration of the material on record the offences referred to in the summoning order are made out and as such the order dated 05.12.2020, in terms of which the applicants have been summoned, cannot be said to be in any manner erroneous.

6. In order to advert to the rival contentions the provisions relating to the procedure to be followed by the Magistrate upon taking cognizance of an offence on complaint under sections 200 and 202 of the Code upto the stage of issuance of process under section 204 of the Code, are required to be referred to. The provisions contained under sections 200, 202 and 204 of the Code are being extracted below:-

"200. Examination of complainant.-- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--

(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.

202. Postponement of issue of process.--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the       offence complained of is triable exclusively by the Court of   Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. 
 

 
(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
 
204. Issue of process.--(1)If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be--
 

 
(a) a summons- case, he shall issue his summons for the attendance of the accused, or
 

 
(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. 
 
	(2) No summons or warrant shall be issued against the 	accused under sub- section (1) until a list of the 	prosecution 	witnesses has been filed.
 
(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint. 
 
(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. 
 
(5) Nothing in this section shall be deemed to affect the provisions of section 87."
 

7. Section 200 provides that the Magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses present, if any, and that the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. The object of such examination is with a view 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 person.

8. The object of section 202 is to enable the Magistrate to form an opinion as to whether the process is to be issued or not. The purpose of the investigation to be directed under this section is to help the Magistrate in arriving at a decision as to the issuance of process. The broad based inquiry by the Magistrate, as contemplated under this section, is with a view to enable him to arrive at a decision as to whether he should dismiss the complaint or whether he should proceed to issue process upon the complaint.

9. The provisions contained under sections 200, 202 and 204 and the degree of satisfaction required to be recorded at this stage by the Magistrate was subject matter of consideration in S.W. Palanitkar and Others v. State of Bihar and Another2 and it was held that test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction". Referring to the earlier decisions in the case of Nirmaljit Singh Hoon v. State of West Bengal and Another3, Chandra Deo Singh v. Prokash Chandra Bose4, and Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others5, it was stated that the scope of inquiry under section 202 is limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (i) on the material placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. The observations made in the judgment in this regard are as follows:

"15. In case of a complaint under Section 200 Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words "sufficient ground", used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.

16. This Court in Nirmaljit Singh Hoon v. The State of West Bengal, (1973) 3 SCC 753 in para 22, referring to scheme of Sections 200-203 of Cr. P.C. has explained that :

"The section does not say that a regular trial of adjudging 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 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, 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 could 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 prima facie case."

17. In Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736, this Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is also indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case being

"where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused."(SCC p. 741, para 5)."

10. The sufficiency of the material and the test to be applied at the stage of issue of process again came up for consideration in the case of Nupur Talwar v. Central Bureau of Investigation and Another6 and it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt". Referring to the earlier authorities on the point it was observed as follows :

"37. The criterion which need to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Chandra Deo Singh vs. Prokash Chandra Bose, AIR 1963 SC 1430, wherein it was observed as under : (AIR p. 1433, para 8)

"(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is 'sufficient ground for proceeding' and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered. Amongst those decisions are : Parmanand Brahmachari v. Emperor, AIR 1930 Pat 30; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931 Bom 524 and Baidya Nath Singh v. Muspratt, ILR (1887) 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant." (emphasis supplied).

xxx

39. The same issue was examined by this Court in Jagdish Ram vs. State of Rajasthan and Anr., (2004) 4 SCC 432, wherein this Court held as under: (SCC p. 436, para 10)

"(10) The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should be issued against the appellant or not, yet the entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a well-written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons.(Chief Controller of Imports and Exports v. Roshanlal Agarwal)"

(emphasis supplied)

All along having made a reference to the words "there is sufficient ground to proceed" it has been held by this Court, that for the purpose of issuing process, all that the concerned Court has to determine is, whether the material placed before it "is sufficient for proceeding against the accused"? The observations recorded by this Court extracted above, further enunciate, that the term "sufficient to proceed" is different and distinct from the term "sufficient to prove and established guilt".

11. In the facts of the present case, the allegations in the complaint have been found to be corroborated in the statement made on oath by the complainant during the course of examination under section 200 and also during inquiry made by the Magistrate under section 202. The order dated 05.12.2020 passed by the Trial Judge issuing process reflects that the same has been passed taking into consideration the available material on record. The order has referred to the statements under sections 200 and 202 and also the fact that the statements recorded therein support the allegations made in the complaint.

12. The law on the point being well settled that at the stage of issue of process the opinion which is required to be recorded by the magistrate taking cognizance of the offence is that there is sufficient ground for proceeding against the accused, the order passed by the court below summoning the applicants does not suffer from any infirmity, so as to call for interference.

13. The application thus fails and is accordingly dismissed.

Order Date :- 5.8.2021

Nitendra

(Dr. Y.K. Srivastava, J.)