Joginder Kumar vs Shamsher Singh Malik And Anr.
2006 Latest Caselaw 2154 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This revision petition is directed against the judgment dated 23.08.1999 passed by the learned Additional Sessions Judge allowing the revision petition preferred by the respondent No. 1 herein against the order dated 19.08.1998 passed by the learned Metropolitan Magistrate whereby the said respondent No. 1's application for stopping/dropping the proceedings in the complaint case titled as "Joginder Kumar v Ran Singh" was dismissed.

2. The record reveals that a complaint case was filed by Joginder Kumar (petitioner herein) against some police officials and others for their prosecution and after recording pre-summoning evidence, the learned Metropolitan Magistrate, by an order dated 26.04.1990 summoned 7 accused persons including the respondent No. 1 under Section 342 IPC read with Sections 120B IPC and 109 IPC. The root of the problem was the dispute with regard to the filing of a Kalendra under Sections 107/151 CrPC by sub-inspector Ran Singh against Devinder Kumar, Nathu Singh and Joginder Kumar regarding a dispute over land between two parties. It is alleged that on 10.10.1989 a breach of peace had taken place due to the dispute and as such sub-inspector Ran Singh arrested Devinder Kumar, Nathu Singh and Joginder Kumar and filed a Kalendra against them for their prosecution under Sections 107/151 CrPC. According to Joginder Kumar, the case was false and the same had been made out against them by sub-inspector Ran Singh and it is because of these reasons that the complaint was filed.

3. The role of the respondent No. 1 (Shamsher Singh) is that at the time when the Kalendra was prepared, he was working as the SHO of police station Jafarpur Kalan and, according to the learned Counsel for the respondent, he had merely forwarded the Kalendra in his official capacity as the Station House Officer which he was duty bound to do. As noted in the impugned order, the arrest etc were also made by sub-inspector Ran Singh and other officials. There was no overt act on the part of the petitioner apart from forwarding the accused to the Special Executive Magistrate for taking strict action.

4. Essentially, two points were urged on behalf of respondent No. 1 before the learned Additional Sessions Judge. Firstly, it was argued that, the respondent No. 1 had no role to play and that he merely forwarded the Kalendra which he was duty bound to do. Secondly, he did the same in the discharge of his duties and, therefore, sanction under Section 197 CrPC as well as Section 140 of the Delhi Police Act, 1978 was necessary. Since no such sanction was obtained, no cognizance could have been taken of any offence insofar as the respondent No. 1 was concerned.

5. Considering the material on record, the learned Additional Sessions Judge found in favor of the respondent No. 1 on both counts. He came to the conclusion that the role of the respondent No. 1 could easily be distinguished from those of other police officials against whom there were direct allegations. The learned Additional Sessions Judge also found force in the arguments of the counsel for the respondent No. 1 that when the Kalendra had already been prepared by sub-inspector Ran Singh, the respondent No. 1 being the SHO of the Police Station was duty bound to forward the same to the Special Executive Magistrate who was to take further action on it. Apart from this, the learned Additional Sessions Judge also took the view that sanction under Section 197 was not taken although it was required before the filing of the case against the respondent No. 1. It is in these circumstances that the learned Additional Sessions Judge found that this was a fit case in which the proceedings against the respondent No. 1 were liable to be dropped. Accordingly, the revision petition of respondent No. 1 was allowed and the proceedings against him in the said complaint case were dropped. It is against this judgment that the present revision petition has been filed by the complainant (Joginder Kumar).

6. At the first instance an issue of maintainability was raised on behalf of the respondents. The respondents urged that the dropping of proceedings amounted to an acquittal and, therefore, a revision petition would not lie and only an appeal under Section 378 of the Code of Criminal Procedure, 1973 would lie. It was submitted that this revision petition was liable to be dismissed on the ground of its non-maintainability. The learned Counsel for the petitioner, however, urged that this was not a case of acquittal and it was a case of discharge and, therefore, this revision petition was maintainable.

7. If one were to go through the provisions of the Code one would find that after issuance of notice under Section 251 and appearance of the accused, the matter has to be continued leading to either acquittal or conviction under Section 255 of the code. However, Section 258 provides that in any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. So, if this was a summons case instituted otherwise than upon complaint, the order passed by the learned Additional Sessions Judge would have amounted to a discharge or an acquittal depending upon whether the evidence of the principal witnesses had been recorded or not. But this consideration does not arise in this case at all because it is not a summons case instituted otherwise than upon compliant. Therefore, Section 258 of the Code has no application in the present case.

8. This being the position, the procedure prescribed under Sections 254 and 255 would have to be followed. Under Section 254 if the Magistrate does not convict the accused on his plea of guilt under Section 252 or Section 253, the Magistrate is duty bound to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defense. This provision makes it clear that if a conviction is not directed under Section 252 or under Section 253 of the Code then the prosecution as well as the defense are to lead their evidence and both of them have to be heard. Section 255 deals with acquittal or conviction and it provides that if the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal. Sub-section (2) of Section 255 requires that if he finds the accused guilty, the Magistrate shall pass sentence upon the accused in accordance with law. A combined reading of Section 254 and Section 255, therefore, clearly indicates that an order of acquittal or conviction can be passed only upon the taking of evidence referred to in Section 254 and, after hearing the parties.

9. In the present case what has happened is that before any evidence has been recorded at the trial stage the proceedings against the respondent No. 1 have been dropped. There is no provision under the Code permitting such a course of action.

10. In K.M. Mathew v State of Kerala and another : , the Supreme Court held that it was open to the accused served with summons to plead before the Magistrate that the process against him ought not be have been issued and that if the Magistrate is satisfied with such an argument, he may drop the proceedings on reconsideration of the complaint on the ground that there was no offence for which the accused could be tried. The court further held that the Magistrate, in dropping the proceedings and rescinding the process already issued, would be acting in exercise of his judicial discretion and no specific provision was required for the exercise of such power.

11. But, this view was held to be incorrect by a larger bench of the Supreme Court in Adalat Prasad v Rooplal Jindal : (2204) 7 SCC 338 in the following manner:

15. It is true that if a Magistrate takes cognizances of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code.

16. Therefore, in our opinion the observation of this Court in the case of Mathew that for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew case that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.

12. Thus, the position in law as it stands post Adalat Prasad (supra) is that after process is issued under Section 204 of the Code, the Magistrate has no power to review or recall the order of issuance of process, even if such order is vitiated on account of absence of material implicating the accused. The remedy for setting aside such an order did not lie in calling for its recall before the Magistrate but, in approaching the High Court under Section 482 of the Code. This, therefore, makes it clear that the Magistrate would have no power to drop the proceedings after issuing process under Section 204 except in the case of non- appearance or death of the complainant or under cases falling under Section 258 of the Code.

13. There is, of course, the question raised by the learned Counsel appearing on behalf of the State that at the time the impugned order was passed, the law that was applicable was as laid down in the case of K.M. Mathew (supra) and the Adalat Prasad decision came later and, therefore, the Magistrate as well as the learned Additional Sessions Judge who passed the order in revision could not be faulted. In this context, I think there is another way in which this case can be approached. Even if it is recognised, as, indeed it should be, that the Magistrate has no power to drop proceedings after issuance of process under Section 204 except in the exceptional circumstances mentioned above, the matter is now before this Court and, this Court, as observed in Adalat Prasad (supra) has the power under Section 482 of the Code to set aside orders of the Magistrate which may be vitiated in respect of accused against whom there was no material. In my view, the power under Section 482 of the Code is wide enough to cover the situation which arises in the present case. The provisions of Section 482 essentially save the inherent power of the High Court by spelling out that nothing in the code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. Of course, there is no doubt that the powers under Section 482 have to be exercised sparingly and judiciously.

14. In the present case, I find that the respondent No. 1 (Shamsher Singh Malik) merely did his duty as the Station House Officer of the Police Station in forwarding the Kalendra to the Special Executive Magistrate for further action. Therefore, it would be a travesty of justice if he is prosecuted for doing his duty and if the impugned order is set aside on the ratio of Adalat Prasad's case that the Magistrate did not have the power to recall, it would mean that the said officer would have to face trial in its entirety. It must also be remembered that at the time when the application for recall was filed and disposed of, the ratio laid down in K.M. Mathew (surpa) was in vogue as part of the law of the land. Therefore, the said respondent No. 1 had the option available to him to move an application for recalling the summoning order. Had the decision in Adalat Prasad be rendered prior to his having filed the application, the situation might has been different. Because then he would be aware that his remedy lay in filing a petition under Section 482 and not for recalling of the summoning order. Keeping in view the objectives of Section 482 and to secure the ends of justice, it would be appropriate if the impugned order is not interfered within.

This revision petition is dismissed.