1968 PC r (PLP)

3. The learned Magistrate decided to hold a preliminary inquiry but he also issued notice to the accused including the present petitioner and after examining the complainant and four other prosecution witnesses and a Court witness he dismissed the complaint against the petitioner under section 203, Cr. P. C. Against the other accused he registered an offence under section 323, P. P. C. and issued a bailable warrant.

4. The complainant Ghulam Shah aggrieved by the dismissal of his complaint against the present petitioner preferred a revision petition under section 436, Cr. P. C. which was heard by the Additional Sessions Judge, Nawabahah who set aside the order of the Magistrate dismissing the complaint against the petitioner and ordered further injury. Wahid Bux Shah has challenged the order of the Additional Sessions Judge in this Court by the present petition. (5) I have heard Mr. Qurban Hussain Shah, Advocate for the petitioner, and the complainant Ghulam Shah who appeared in person and also Mr. Maxi, Advocate who appeared on behalf of the A. A.‑G. The main question which fails far, consideration in this cast: is whether the, manner in which the preliminary inquiry was held by the learned Resident Magistrate was proper. Section 202 of the Criminal Procedure Code provides for a preliminary inquiry before tae issue of process. It lays down that a Magistrate on receipt of a complaint of an offence may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process against the accused and either enquire into the case himself or direct an inquiry or investigation to be made by any Magistrate subordinate to him or by a police officer or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Subsection (2A) of this section empowers the Magistrate holding the inquiry to take evidence of witnesses on oath. Section 203 then provides that if in the opinion of Magistrate, before whom a complaint is made, may dismiss the complaint, if, after considering the statement on oath (if any) of the complaint and the witnesses and the result of the investiga tion or inquiry (if any) under section 202, there is in his judgment no sufficient ground for proceeding. In such a case he shall briefly record his reasons for doing so. Section 204 provides that If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding he shall issue summons or warrants, as the case may be, for the attendance of the accused. The subsequent sections deal with the procedure for the trial of the case inter‑parties.

6. The impression that one gets by reading the order of the learned Magistrate dismissing the complaint against the present petitioner is as if this was an order of discharge as the result of a proceeding after issue of process to the accused and after full cross‑examination of the witnesses produced by the prosecution. This was borne out at the hearing because it was admitted at the Bar that the learned Magistrate while holding the preliminary inquiry had not only issued notice to the accused but had also allowed them to be represented by two advocates and the prosecu tion witnesses had been cross‑examined in full. The question is whether this is the object of a preliminary inquiry contemplated by section 202, Cr. P. C.

7. Mr. Qurban Hussain Shah, the learned Advocate for the petitioner, strenuously argued that there was no bar contained in section 202 against the issue of notice to the accused or their representation by an advocate or advocates and the latter suggesting questions to the Magistrate to be put to the prosecution witnesses in cross‑examination. He cited several cases in support of hit contention of which three are relevant and may be noted. The fist case is a decision of the Bombay High Court reported In re, Virbhan Bhagaji (A. I. R. 1928 Bom. 290). In this case a complaint had been filed under section 447, I. P. C. and section 426 read with section 114, I. P. C. The allegation was that the accused had committed criminal trespass and had got the screen in front of the lattice of the complainant knocked down and broken. The Magistrate before whom the complaint was filed took the view that this was a case merely of a civil nature. In a revision filed before the High Court the learned Judges did not interfere with the dismissal of the complaint so far as it related to the alleged offence under section 447, I. P. C. but set aside the dismissal of the complaint relating to the offence of 426 read with section 114, I. P. C. It appears from the judgment of the High Court that the Magistrate in the course of preliminary inquiry under section 202, Cr. P. C. had allowed the accused to appear before him and to say what they had to say about the accusation and had also allowed them to produce some documentary evidence for the consideration of the Court. The question arose whether such a procedure was permissible in a preliminary inquiry under section 202, Cr. P. C. Fawcett, J. with whom Mirza, J. agreed observed that though such a procedure may be undesirable it cannot be said that it was illegal. The learned Judge then went on to examine what he considered to be the wide scope of section 202 and particularly noted the fact that under that section the Magistrate was not only entitled to hold an inquiry himself but could also direct it to be made by a police officer or by such other person whom he thought fit. He pointed out that if an inquiry was held by the police, the investigating officer or a private person to whom the inquiry might have been sent would have the power to examine not only the complainant and his witnesses but could also summon the accused who could also produce his evidence before him, documentary or oral. The learned Judge pointed out that if the police officer or a private person holding an inquiry under the directions of the Magistrate could send for the accused and hear him and take such evidence, which might be produced by him, there is no reason why the Magistrate himself could not do this. He then went on to record his conclusion, which may be reproduced: ‑‑ "While, therefore, I feel the force of the objections to having a sort of preliminary trial of a case, I do not think that there is anything absolutely illegal in the issue of a notice to an accused person. " The learned Judge then went on to record his view as to the undesirability of the practice such as had happened in that case and which was prevalent in the Bombay Presidency but he said that that was a matter for a direction by the Court as a body evidently on the administrative side.

8. I have dealt with this case at some length because the other two cases relied upon by the learned counsel and reported in R. Udhomal v. S. Mehrurmal (A I R 1934 Sind 143) and Lala Gobardhan Dais v. Lala Girdhari Lal (A I R 1934 Oudh 372) have followed this decision of the Bombay High Court. In the Sind case it was held that though it would be highly irregular for a Magistrate to issue notice to an accused person to show cause against the issue of process in an inquiry under section 202, it would however be open to him if he deems ft desirable to give an opportunity to the accused to appear and state what he has to say about the accusation and may even accept any documentary evidence that the accused may produce before him. In the 6udh case it was held that a Magistrate, if he deems It desirable for the purposes of his inquiry, may give the accused a chance of appearing before him and stating what hi has to say about the charge and even accept and consider documentary evidence produced by him and allow him to file a statement and hear his argument. It was said that this might be irregular but as not illegal.

9. It would be noticed that in all these cases it has beer acknowledged that such a procedure is irregular and while I air prepared to admit that a procedure like this in a preliminary inquiry does not contravene any specific provision of the procedural law I have no doubt that it strongly offends against the spirit of the law and the procedure laid down in the Code with regard to the inquiry and trial of criminal cases. That being so, it must be strongly deprecated. Fawcett, J. in this judgment referred to above in the Bombay case found this procedure permissible because as he pointed out it would be permissible i1 an inquiry was sent to a police officer or even a private person. Faith great respect I am unable to see the analogy between an inquiry held by a police officer or a private person on the one hand and an inquiry in a Court of law. To me it appears to be plain that the whole purpose of the preliminary inquiry under section 202 is to avoid the issue of process to the accused person in a fit case. The object being that when it appears to a Magistrate that an issue of a process straightaway to the accused on a complaint which may be filed before him might result in, unnecessary harassment he would for reasons to be recorded in writing postpone the issue of process until the holding of preliminary inquiry. If, however, in that inquiry the Magistrate was to issue notice to the accused persons, get them before the Court, let them produce documentary evidence, take their statements oral or written and place it side by side with the prosecution evidence and allow the prosecution witnesses to cross‑examined, then it is difficult to see the difference between preliminary inquiry and an inquiry after the issue of process to the accused persons. Such a procedure while it might cause prejudice to the complainant in one case might cause much greater prejudice to an accused person in another. In the latte case it would amount to this that an accused would be "Red upon to disclose his defence even before the prosecution had made out a case against him. Supposing after such a defence was disclosed and the Magistrate then issued process it would naturally mean that he had not accepted that defence. In that case when the accused faces the same Magistrate after process has been issued to him he would naturally be under a great dead of misgiving throughout the trial. It may even be that the disclosure of the defence of the accused or of his documentary evidence might give an unfair advantage to the complainant. Surely this is not what was contemplated under the scheme of theta Criminal Procedure Code for the trial of an accused person. On the other hand, the Magistrate might, after hearing the accused or his counsel or seeing some documentary evidence produced before him, not go through the whole length of the evidence sought to be produced by the complainant and reach a, conclusion hurriedly as a result of which he might dismissal of the complaint. There is another aspect of the matter. If process is not issued to the accused the dismissal of the complaint on preliminary inquiry would not entitle him to any compensation, to which he would be entitled under section 250, Cr. P. C. if the accusation was found to be false, frivolous or vexatious. He would not also be entitled to institute a suit for damages for malicious transaction. That would be possible only if process was issued to him and he was thereafter discharged or acquitted. Moreover, if the purpose of section 202 is to enable the Magistrate to postpone the issue of process as is plainly the case, how then can that purpose be allowed to be frustrated when the Magistrate decides to hold a preliminary inquiry in which h issues notice to the accused and allows most of the things to b done which, properly, must wait until the issue of process. Therefore, though there may be no contravention of any specific provision of the Code it appears to me to be clear that it was not intended that in a preliminary inquiry under section 202 the accused should be summoned by notice and allowed to have the prosecution witnesses cross‑examined and produce his own side of the case either orally or in writing. The view that I have taken finds support from a number of decided cases. It was held by a Full Bench of the Madras High Court in the case of Appa Rao Mudaliar v. Janakiammal (A I R 1927 Mad. 19) that although allowing a pro posed accused person to appear and to hear what he has to say might satisfy the Magistrate that there was no case for issuing process under section 204 yet such a procedure is entirely unwarranted by the Code.

10. In a case, which went to the Calcutta High Court, a complaint had been made against a police officer and the Magistrate after recording the complaint and purporting to act under section 202, Cr. P. C. called for a report from the police officer and having received and accepted it dismissed the com plaint under section

203. It was held that he acted illegally and he was directed to proceed with the case. The case is B. N. Singh v. Muspratt and others (I LR 14 Cal. 141).

11. The Patna High Court in the case of Harnarain v. Kariman (21 Cc. L J 521) held that it was illegal for a Magistrate to call upon an accused person to state as to the truth or falsehood of a charge preferred against him. The Lahore Court in a judgment reported in 29 Cr. L J 39 held that it was incongreguous to call upon a person accused of an offence to show cause against process being issued against him when proceedings under section 202, Cr. P. C. are: in contemplation.

12. In the case before me not only that the accused were called to be present although by notice but they were also allowed to be represented by advocates and the witnesses were cross-examined at length either directly by the advocates; or at their suggestion by the Magistrate. I am clearly of the opinion that in an inquiry the purpose of which ostensibly was to determine whether process should be issued or not, the learned Magistrate did not act properly in permitting all this to have been done. After all a preliminary inquiry is not to be held as if it was a full‑dress rehearsal for the trial. That is not the purpose of section 202.

13. That brings me to the order of the learned Additional Sessions Judge and it would demonstrate the extent of the mis chief, which can happen when the Magistrate in the first instance does not keep an inquiry within the bounds of section

202. Before the learned Additional Sessions Judge not only the complainant but also the accused against whom the complaint had been dismissed were also represented and the learned Judge in his order directing further inquiries made observations, which, if they were allowed to remain on record, might seriously embarrass the Magistrate who was eventually going to try the case. It did not end there. The petitioner aggrieved by the order of the Additional Sessions Judge has come up to this Court. I am very doubtful if he was entitled to do so, because process had not been issued to him and, therefore, it would have been open to the Additional Sessions Judge to refuse to hear him and it would be open to me to decline to entertain his revision petition. But if that happened the observations of the learned Additional Sessions Judge would remain on the record and the petitioner might find them very inconvenient when the case goes back to the Magistrate. All this would have been avoided if the learned Magistrate had not issued notice to the accused and had not got the assistance of their advocates at the preliminary inquiry.

14. Having taken all the circumstances into consideration and in order that neither the complainant nor the accused should suffer because of the procedure adopted by the learned Magistrate I pass the following order:‑ "The order of the dismissal of the complaint against the petitioner is set aside. The complaint shall be placed before a Magistrate other than the Magistrate who had held the preliminary inquiry in this case. The Magistrate to whom this case may be transferred shall treat it as if it had been presented to him in the first instance and shall proceed with it either by holding a preliminary inquiry or by issuing a process as he deems fit but in neither case he shall be influenced one way or the other by any observation made by the learned Additional Sessions Judge. The case shall go back to the District Magistrate, Nawabshah who shall either hear it himself or make it over to any other Magistrate subordinate to him except the one who had hold the preliminary inquiry in this case. Case remanded.