N.R. Pachouri vs Kishanlal Choudhary
2024 Latest Caselaw 5402 MP

Madhya Pradesh High Court

N.R. Pachouri vs Kishanlal Choudhary on 22 February, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                           1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                       BEFORE
   HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
            ON THE 22nd OF FEBRUARY, 2024
           MISC. CRIMINAL CASE No. 50852 of 2018

BETWEEN:-

KISHANLAL CHOUDHARY S/O LATE SHRI
JHAGDURAM CHOUDHARY, AGED ABOUT 45
YEARS, OCCUPATION: SOLDIER (HOME GUARD)
KATNI,   R/O VILLAGE    JIWARA   TEHSIL
VIJAYRAGHAVGARH KATNI DISTRICT KATNI
(MADHYA PRADESH)
                                                .....PETITIONER
(BY SHRI SATYAM AGARWAL - ADVOCATE)

AND

N.R. PACHOURI S/O LATE SHRI R.P. PACHOURI,
AGED ABOUT 61 YEARS, OCCUPATION:
DIVISIONAL COMMANDANT R/O HOME GUARD
OFFICE KATNI (MADHYA PRADESH)
                                              .....RESPONDENTS
(BY SHRI DINESH KUMAR UPADHYAYA - ADVOCATE)

           MISC. CRIMINAL CASE No. 1382 of 2019

BETWEEN:-

N.R. PACHOURI S/O LT. SHRI R.P. PACHOURI,
AGED ABOUT 61 YEARS, OCCUPATION:
RETD. DISTRICT COMMANDANT HOME
GUARD OFFICE KATNI PRESENTLY R/O.
SHAHSTRI VIHAR DAMOH NAKA (MADHYA
PRADESH)

                                                .....PETITIONER
                                  2


   (BY SHRI DINESH KUMAR UPADHYAYA)

       AND

   KISHANLAL CHOUDHARY S/O JHADURAM
   CHOUDHARY, AGED ABOUT 45 YEARS, R/O.
   VILL. JIWARA TEH. VIJAYRAGHAVGARH,
   KATNI,   DISTRICT  KATNI   (MADHYA
   PRADESH)

                                                       .....RESPONDENTS
   (BY SHRI SATYAM AGARWAL - ADVOCATE)

         These applications coming on for admission this day, the court
   passed the following:
                                  ORDER

1. By this common order M.Cr.C.No.1382/2019 filed by N.R.Pachouri shall also be decided.

2. Both the applications have been filed under section 482 Cr.P.C. against the order dated 14.11.2018 passed by I Additional Judge Katni to the Court of I Additional Sessions, Judge, Katni in Criminal Revision No. 20092/2013.

3. M.Cr.C.No.50852/2018 has been filed by Kishan Lal, who is the complainant and is aggrieved by discharge of respondent N.R.Pachouri for offence under section 294 and 506 Part II of I.P.C. and section 3(1)(x) and 3(2)(vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter referred to as 'the 1989 Act') whereas M.Cr.C.No.1382/2019 has been filed by N.R.Pachouri against the same order by which the matter has been remanded back to the trial Court to reconsider the case for taking cognizance under section 294, 506 Part II I.P.C.

4. Facts necessary for disposal of the present applications in short, are that Kishan Lal has filed a complaint against respondent N.R.Pachouri and Devendra Kumar Vijaywat for offences under sections 294, 506 Part II of I.P.C. and section 3(1)(10) and 3(2)(v) of the 1989 Act. It is the case of the applicant that he is a member of Schedule Caste being Chamar by caste. Complainant was posted on the post of Nagar Sainik. Earlier he was posted in the office of District Commandant, Home Guard, Jabalpur. Thereafter, he was transferred to Katni. It was the claim of the complainant that he was discharging his duties with utmost sincerity and honesty. On 17.2.2011 he received an information that he has been transferred to District Katni. The said written order was received by him through Divisional Commandant Ms.Sangeeta Shakya. Thereafter, accused No.2, namely, Devendra Kumar Vijaywat, who was posted as District Commandant, did not relieve the complainant. On 16.3.2011 when complainant requested accused No.2 to relieve him, then he replied that at present, he does not have anytime and complainant may come after 2-3 days. Thereafter, on 19.3.2011 again complainant went to accused No.2 and requested for issuance of a relieving order, so that he can submit his joining at Katni. At that time, accused No.2 demanded Rs.5-10,000/- for issuing the relieving order. It was replied by complainant that he is Nagar Sainik and he does not have so much money. After hearing his reply, accused No.2 got furious and started abusing the complainant in his office by insulting and intimidating him by his caste, and also stated that he would stay in his own house and even for that purpose, he is not ready to spend Rs.5-10,000/-. The words uttered by accused No.2

were to the annoyance of the complainant. In spite of his insult, the complainant continued to demand for his relieving order. When he informed Divisional Commandant, Ms.Sangeeta Shakya about non issuance of reliving order, then she also requested accused No.2 as to why he is not issuing relieving order and only thereafter, accused No.2 issued the relieving order. It was claimed that accused No.2 is a literate person and he knows that complainant belongs to Scheduled Caste and is a poor person and in spite of that he acted contrary to the provisions of law. After the relieving order was issued, the complainant met with accused No.1/respondent along with the relieving order. Accordingly, accused no.1 assigned him the duty. At that time, an information was given to the complainant that accused No.2 has made a phone call. On the next day when complainant went to attend his duties then respondent /accused no.1 informed that complainant has been summoned by the accused no.2 in Jabalpur. Complainant again came to Jabalpur and met with accused No.2, who informed that, although he has issued relieving order on the instructions of Ms.Sangeeta Shakya, but now complainant should clean clothes, should do dusting and mopping as well as also clean the latrine and bathroom and should also look after the Bungalow. The complainant did not accede to that and came back to Katni. Thereafter, on 23.9.2011 accused no.1/ respondent issued an order and directed the complainant to submit his joining at Jabalpur. Accordingly, on 24.9.2011 complainant submitted his joining to accused No.2 at Jabalpur. Thereafter, accused No.2 was getting the household work done by complainant and he was being insulted regularly. Whenever complainant requested accused no.2 not to insult

him, he was always abused filthily and was also beaten. Ultimately, complainant was relieved by order dated 16.11.2011 and he was sent back to Katni with a clear instruction that he should not narrate the incident to anybody, otherwise he would be buried. The complainant was very much afraid, and somehow he submitted his joining before accused No.1/ respondent, who informed that complainant was absent from duty at Jabalpur on 6.11.2011 to 15.11.2011 whereas it is the case of complainant that he was kept in illegal detention by accused No.2 during the said period. Thereafter, applicant No.1 also insisted that complainant must manufacture furniture for him. When complainant informed accused No.1 that since he has undergone an eye operation, therefore, it is difficult for him to perform such an act then accused No.1 by using the abusive language in the name of his mother said that complainant is fit for Jabalpur only, and thereafter relieved the complainant by order dated 29.12.2011 for Jabalpur. Thereafter, the complainant waited for entire day in the office of accused No.2, but he did not talk to him and in the evening, he was forced to leave. The complainant came back to Katni and submitted his joining to accused No.1 and informed about the entire incident. Accordingly, accused No.1/ respondent by order dated 1.1.2012 attached the complainant with C.J.M. Katni, where he discharged his duties up till 4.1.2012. Mahmood Khan, who is posted in the office of accused No.1/ respondent, came on official vehicle and informed the complainant that he has been summoned by accused No.1/ respondent. Accordingly, on 5.1.2012 complainant went to meet accused No.1, who informed that complainant has been summoned by accused No.2 in Jabalpur.

However, no written order was given. Because of the harassment in the hands of accused No.1 and 2, complainant fell seriously ill. Thereafter, accused persons stop making payment of salary, for which a complaint was made to the senior officers, but no steps were taken.

5. When complainant was in his house in connection with his treatment, one Shri V.P.Singh and Rajlalan Singh, were sent with a message that complainant has been summoned by accused No.1. Accused No.1 also talked to his elder brother on phone at 25.2.2012 and instructed that complainant should be sent to his office on 27.2.2012 otherwise he will be beaten by shoes. He also scolded that complainant who belongs to Chamar caste is making too much complaints against him. Complainant, however, went to the office of accused No.1 on 28.2.2012. Accused No.1 was not there and accordingly, complainant kept on waiting. The accused No.1 came at 4 P.M. and insisted that, first of all, he should tender his written apology and he should follow whatever instructions are given to him. The complainant should enter into compromise and should clean his shoes otherwise he would be removed from service. Son of complainant, Ram Gopal, who was also accompanying the complainant, heard over the conversation. Because of ill treatment, the complainant started crying.

6. Amrit Lal Tiwari requested the accused No.1 to forgive the complainant as well as release his salary. However, accused No.1 did not accept the same. It was further alleged that, although accused No.1 knows about the fact that complainant belongs to Schedule Caste, even then the aforesaid acts were done by him.

7. The statements of complainant were recorded. In his statement complainant did not utter a single word against accused No.1/ respondent with regard to the insult or intimidation by calling him by his caste. Similarly, complainant has also examined Ram Gopal as witness No.2, who has also not stated that complainant was insulted or intimidated by calling by his caste. Vishnupal has stated that he is elder brother of the complainant. On 22.2.2012 he received a call on his mobile phone. On the other side, the accused No.1 was there. He also used abusive language and stated that complainant belongs to Chamar caste and he would continue to remain as Chamar. He also instructed that since this witness is elder brother of complainant, therefore, he should make him understand and also directed that complainant should be sent to his office on 27.2.2012. He also requested that his younger brother has undergone operation of his eyes, therefore, he should not be harassed and his salary should be released and also requested accused No.1 not to intimidate or humiliate him by using caste related words. His brother went to the office of Home Guard Katni on 28.2.2012. Again on 3.3.2012 he received telephonic call of respondent /accused No.1, who enquired as to whether he has sent his brother or not ? He also instructed that complainant should submit his written apology.

8. Amrit Lal Tiwari has also stated that on 28.3.2012 accused No.1 /respondent had scolded the complainant by saying that he is Chamar and he should be assaulted by shoes.

9. The trial Court by order dated 10.9.2012 passed in R.C.T.No.3206/2012 took cognizance of offence under section 294,

506 Part II I.P.C. and 3(1)(x) and 3(2)(7) of the 1989 Act and directed for registration of complaint.

10. Being aggrieved by the order taking cognizance and issuing process, the respondent preferred revision, which has been partly allowed by order dated 14.9.2018 passed in Cr.Revision No.200092/2013 and the respondent has been discharged for offence under section 3(1)(x) and 3(2)(7) of the 1989 Act, however, in respect of offence under section 294, 506 Part II I.P.C., the matter has been remanded back to the trial court to reconsider the documentary as well as oral evidence.

11. It is submitted by counsel for the applicant that, since accused No.2 had not filed any revision against the order taking cognizance, therefore, there was no occasion for the revisional court to give any finding with regard to the territorial jurisdiction of the trial Court. Furthermore, it is well established principle of law that minute appreciation of evidence at the time of taking cognizance is not required. Word "sufficient ground" means satisfaction of the trial Court to the fact that prima facie case has been made out.

12. Per contra, the revision is vehemently opposed by counsel for the respondent. While advancing his arguments in the revision filed by the respondent, it is submitted that no offence under section 294, 506 Part II of I.P.C was made out.

13. Heard the learned counsel for the parties.

14. Before considering the submissions made by counsel for the parties, this Court would like to consider the scope of appreciation of material at the stage of taking cognizance and issuance of process.

15. Enquiry under Section 202 of Cr.P.C. is of a limited nature to find out as to whether there is a prima facie case to issue process against the person accused of the offence or not. The evidence is not required to be meticulously appreciated.

16. The Supreme Court in the case of Mehmood Ul Rehman v. Khazir Mohammad Tunda and others reported in (2015) 12 SCC 420 has held as under:-

"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. to set in motion the process of criminal law against a person is a serious matter."

17. The Supreme Court in the case of Rosy and another v. State of Kerala and others reported in (2000) 2 SCC 230, has held as under:-

"11. In the case Ranjit Singh v. State of Pepsu (now Punjab) where the Sub-Inspector of Police was convicted under Section 193 IPC by Ist Class Magistrate, it was contended that the procedure adopted by the Magistrate was erroneous because he did not hold an inquiry as required under Sections 200 and 202 of the Code. This Court negatived the said contention and held thus:

"That contention is equally untenable because under Section 200 proviso (aa) it is not necessary for a Magistrate when a complaint is made by a court to examine the complainant and neither Section 200

nor Section 202 requires a preliminary inquiry before the Magistrate can assume jurisdiction to issue process against the person complained against."

Further, it is settled law that the inquiry under Section 202 is of a limited nature. Firstly, to find out whether there is a prima facie case in issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose being of finding out "whether or not there is sufficient ground for proceeding against the accused". The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202 CrPC the accused has no right to intervene and that it is the duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. (Chandra Deo Singh v. Prokash Chandra Bose, Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, Nirmaljit Singh Hoon v. State of W.B. and Mohinder Singh v. Gulwant Singh.)"

18. The Supreme Court in the case of Kewal Krishan v. Suraj Bhan reported in 1980 (Supp) SCC 499 = 1981 SCC (Cri) 438, has held as under:-

"10. In the instant case, there was prima facie evidence against Suraj Bhan accused which required to be weighed and appreciated by the Court of Session. At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal

of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh case that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.

11. The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the Magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. Section 209 says: "When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that

the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session." If the Committing Magistrate thinks that it is not necessary to commit the accused who may be on bail to custody, he may not cancel the bail. This has been made clear by the words "subject to the provisions of this Code relating to bail" occurring in clause (b) of Section 209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled. Section 227 of the Code of 1973 has made another beneficent provision to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial. This section provides that if upon considering the record of the case, the documents submitted with it and the submissions of the accused and the prosecution, the judge is not convinced that there is sufficient ground for proceeding against the accused, he has to discharge the accused under this section and record his reasons for so doing."

12. Although the reasons given by the magistrate for rejecting the evidence produced by the complainant in the preliminary inquiry against Suraj Bhan in regard to the accusation that he had shot dead Banta Singh, are not devoid of merit, yet, it appears that in meticulously appreciating the evidence the magistrate had overstepped the limits of his discretion. In other words, this is not a case where the magistrate lacked inherent jurisdiction to pass the impugned order. This is only a case where the magistrate has committed an error amounting to an irregularity, if not a clear illegality, in the exercise of his jurisdiction..........."

19. The Supreme Court in the case of Mohinder Singh v. Gulwant Singh and others reported in (1992) 2 SCC 213, has held as under:-

"11. This Court as well as various High Courts in a catena of decisions have examined the gamut and significance of Section 202 of the Code and settled the principle of law, the substance of which is as follows:

The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry. Vide Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker and Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar."

20. The Supreme Court in the case of Pramatha Nath Talukdar and another Vs. Saroj Ranjan Sarkar reported in AIR 1962 SC 876 has held as under:-

Under the Code of Criminal Procedure the subject of "Complaints to Magistrates" is dealt with in Chapter XVI of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are Ss.200, 202 and

203. Section 200 deals with examination of complainants and Ss. 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the

issuing of process. The scope and extent of Ss. 202 and 203 were laid down in 1961(1) SCR 1 at pp.9,10: (AIR 1960 SC 1113 at pp.1116, 1117). The scope of enquiry under s. 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and s. 203 lays down what materials are to be considered for the purpose. Under s. 103 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under s. 202, Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under s. 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into ILR 12 Lah. 9 at p.12: (AIR 1930 Lah 879 at p.880); AIR 1949 Pat 256; AIR 1949 Bom 384; Doraisami v. Subramania AIR 1918 Mad 484. In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Macleam, C. J. in

ILR 28 Cal 211 at p.216, affirmed by a Full Bench in ILR 28 Cal. 652 (FB). It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.

21. The Supreme Court in the case of Shivjee Singh v. Nagendra Tiwary and others reported in (2010) 7 SCC 578 has held as under:-

"18. The expression "sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. This interpretation of the provisions contained in Chapters XV and XVI CrPC finds adequate support from the judgments of this Court in Ramgopal Ganpatrai Ruia v. State of Bombay, Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, Chandra Deo Singh v. Prokash Chandra Bose, Nirmaljit Singh Hoon v. State of W.B., Kewal Krishan v. Suraj Bhan, Mohinder Singh v. Gulwant Singh and Chief Enforcement Officer v. Videocon International Ltd".

22. Thus, it is clear that the scope of enquiry under section 202 of Cr.P.C. is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under section 204. Cr.P.C., or whether the complaint should be dismissed by resorting to section 203 CrP.C., but the enquiry at that stage does not partake the character of a full dressed trial, which only take place after process is issued under section 204 Cr.P.C. calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused persons.

23. The Supreme Court in the case of Shivjee Singh (supra), has held that the expression 'sufficient ground' used in sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction.

24. If the reasoning assigned by the revisional Court are considered, then it is clear that even without revision by Devendra Kumar Vijaywat, accused No.2, certain observations were made with regard to the territorial jurisdiction of the trial Court qua accused No.2 Devendra Kumar Vijaywat. Similarly, for giving a finding that no offence under section 3(1)(x) and 3(2)(7) of the 1989 Act is made out, meticulous appreciation of evidence was done by the revisional court, which is not permissible. Furthermore, no reasons have been assigned for remanding the matter back to the trial court. The matter cannot be remanded for rewriting a judgment.

25. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that the revisional Court committed a material illegality by discharging respondent N.R. Pachouri for offence under Sections 3(1)(x) and 3(2)(vii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Similarly, the revisional Court also committed a material illegality by remanding the matter back to the trial Court to reconsider the material available on record and to rewrite the judgment.

26. Accordingly, order dated 14.11.2018 passed by First Additional Judge to the Court of First Additional Sessions Judge, Katni in Criminal Revision No.20092/2013 is hereby set aside in its entirety.

Accordingly, M.Cr.C. No.50852/2019 filed by the complainant is hereby allowed, whereas M.Cr.C. No.1382/2019 filed by N.R. Pachouri is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2024.03.06 18:04:16 +05'30'

HS