1969 P Cr (PLP)

Date of hearing : 5th March 1969. This Rule has been issued at the instance of the complainant Zainal Abedin Mia. On the 24th October 1966 the present petitioner filed a complaint which resulted in G. R. Case No. 2051 of 1966 in the Court of Sub‑Divisional Officer, South, Barisal, alleging that on the 24th Aswin 1373 B. S. corresponding to 11‑10‑66 the opposite-parties being armed with dangerous weapons entered upon his land and wrongfully cut and took away a Korai tree worth Rs. 80.00 there from. The learned Sub‑Divisional Magistrate referred the petition of complaint to the Chairman of the local Union Council for a report and as no such report could be obtained from the said Chairman the matter was again referred to Mr. D. K. Biswas, Magistrate, who held an enquiry into the case by examining certain witnesses, and thereafter submitted a report in which he found that a prima facie case was made out against the accused persons. On receipt of the said report dated 14th July 1967 the learned Sub‑Divisional Magistrate after hearing the complainant and the accused opposite‑party No. 1 who also produced some documents including a certified copy of a registered kabulyat alleged to have been executed by the complainant's bena mdar Ainuddin Howladar, found that the dispute was of civil nature and as such the complainant‑petitioner should seek relief in civil Court. On the said finding the learned Magistrate by his order dated 2nd November 1967 dismissed the petition of the complainant under section 203 of the Code of Criminal Procedure. The com plainant thereafter moved the learned Sessions Judge, Barisal, pray ing for further enquiry in criminal motion No. 61(4) of 1967 and the learned Additional Sessions Judge, Second Court, Barisal, who heard the said revisional application by his judgment and order dated 28th December 1967 refused to direct further enquiry in the case and accordingly rejected the revisional application. Thus the complainant‑petitioner having felt aggrieved by the decisions of the Courts below moved this Hon'ble Court and obtained the present Rule. Mr. Mainul Hossain, the learned Advocate appearing on behalf of the petitioner, contends that the learned Sub‑Divisional Magistrate illegally exercised jurisdiction under section 203 of the Code of Criminal Procedure in dismissing the petition of the complainant in view of the fact that after having obtained the statement of the complainant on his examination under sec tion 200, Cr. P. C. and held enquiry thereafter under section 202 of the Code of Criminal Procedure and received the enquiry report from Mr. D. K. Biswas, a Magistrate, he had no other alternative but to dispose of the matter on the materials on record instead of hearing the accused opposite‑party No 1 and relying on the documents produced by him. He further contends with reference to the provision as laid down in section 202 of the Code of Criminal Procedure that in such a case either the learned Sub‑Divisional Officer has to enquire into it himself or he has to depend on the result of the enquiry which was directed by him to be held by another Magistrate, but he cannot take recourse to an enquiry into the case afresh and arrive at a decision independent of the report which might have been submitted by the enquiring Magistrate. So according to the contention of the learned Advocate, the learned Sub‑Divisional Magistrate cannot hold a fresh enquiry arising out of a petition of complaint after he directed an enquiry to be conducted by another Magistrate in that regard. In developing his point of argument the learned Advocate for the petitioner has re ferred me to section 202, subsection (1) which reads as follows :‑ "Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person com plained against, and either inquire into the case himself or if he is a Magistrate other than a Magistrate of the Third Class, 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 pf falsehood of the complaint :" With reference to the language of the said provision as laid down in subsection (1) of section 202 the learned Advocate contends that after the petition of complaint was referred to another Magistrate by the Sub‑Divisional Magistrate for holding an inquiry in pursuance of which a report has been submitted to him, he has to dispose of the matter only on the said report and he cannot hold a fresh inquiry into the case. In support of his contention the 'learned Advocate has referred me to the decision in the case of Bhubaneswar Histri v. Udbigniswar Chakraborty (5 D L R 112). In the said case their Lordships found that at the stage of judicial inquiry under section 202(2‑A) of the Code of Criminal Procedure into the allegations of a complaint directed under the provisions of section 202, subsection (1) of the said Code the accused has no locus standi and cannot cross‑examine the witnesses either himself or by proxy through the mouth of the enquiring Magistrate. In the instant case, as it appears that after the report was submitted by the enquiring Magistrate, the Sub‑Divisional Magistrate heard the accused opposite‑party No. 1 and also relied on the documents produced by him. Mr. Jalaluddin Sekander who has appeared before me on behalf of the opposite‑parties has contended that the enquiring Magis trate in his report has also found that there are contradictions on few minor points and the Sub‑Divisional Magistrate while dismissing the petition of complaint under section 203 of the Code of Criminal Procedure has relied on the said contradictions and discrepancies in the evidence which are according to him very material and as such he committed no error in arriving at his decision by casually referring to the documents produced by the opposite party No. 1 and also after hearing him in the matter. In this respect Mr. Sekandar has referred me to a decision reported in I L R 52 Bom. 448 in which case it has been held that section 202 of the Code of Criminal Procedure is not necessarily limited to the preliminary examination of the com plainant and his witnesses, and if a Magistrate deems it desirable for the purpose of his inquiry to give the accused an opportunity of appearing before him and stating what he has to say about the accusation, and even accepts and considers documentary evidence produced by the accused, he is not thereby committing an illegality and where a Magistrate is satisfied with the accused's ex planation, he should formally dismiss the complaint. Mr. Sekandar has been candid enough to say that this Bombay view is contrary to Calcutta view in this regard. I have already mentioned above with reference to the case reported in 5 D L R 112 that a Division Bench of our Court has taken the view that the accused has no locus standi in such a case to appear before the enquiring Magistrate and I respectfully agree with the principle of law enunciated by our Court in the said case. True it is that the learned Sub‑Divisional Magistrate has taken into consideration the discrepancies and contradictions in the evidence recorded by the enquiring Magis trate in arriving at his decision but the fact remains that his decision is the cumulative effect of his consideration of all the materials on record, particularly, that of the statement of the accused‑opposite‑party No. 1 and the documents produced by him. With regard to the second point of Mr. Mainul Hossain, the learned Advocate for the petitioner, to the effect that the learned Sub‑Divisional Magistrate cannot hold a fresh inquiry I am of opinion that in the facts and circumstances of the present case it does not appear to me that the learned Sub‑Divisional Magistrate held a fresh inquiry into it; he was in seisin of the case although he directed an inquiry by another Magistrate and as such when on receipt of the report from the enquiring Magis trate he was called upon to consider the case arising out of the petition of complaint what he did is that he heard the complainant again saw his papers and also heard the accused opposite‑party No. 1 and relied on the documents produced by opposite‑party No. 1 and I have already noted above that really he was not within his rights to give an opportunity to the opposite-party No. 1 to be heard and to rely upon the documents produced by him in support of case agreeing with the aforesaid Division Bench decision of this Court. Mr. Mainul Hossain, of course, has referred me to two decisions in support of his second point and the said decisions arc in the case of Radha Sao v. S. K. Misra and another (A I R 1949 Pat. 36) which followed the decision in the case of Tyab Ali Yusuf Ali Bohari v. Husain Ali Yusafali Bohari (A I R 1937 Nag. 389) and in the case of S. M. H. Rizvi v. Abdus Salam and another (P L D 1960 S C 358). The principle of law enunciated by our Supreme Court in the aforesaid case is to the following effect :‑ "In a case where the initial complaint or report is of such a nature that it is doubtful whether a prima facie case of the offences alleged is made out, a Magistrate would be fully within his rights in calling for evidence before deciding that the complaint or report should be rejected. Equally, if he feels the necessity or otherwise of a sanction, as a pre‑requisite to the competency of a case, the Magistrate would be justified in calling for proof of such facts as would enable him to be satisfied that he could not proceed without sanction. But cases are conceivable in which the facts alleged in a complaint or report do not constitute a prima facie case of the offences alleged, and in such a case, if a Magistrate were to call for evidence, the duty of the Courts of correction would be to reverse that order and to dismiss the complaint or report." The aforesaid principle of law is not very much relevant for the purpose of the instant case. Certainly it is true that where Magistrate is satisfied from the petition of complaint that the allegations contained therein are not true and as such no offence appears to have been committed as alleged, he has to dismiss the petition of complaint without calling for any evidence in that regard, but here in. the instant case we find that the learned Sub‑Divisional Magistrate who is in seisin of the case referred the same to another Magistrate for holding an enquiry and the said enquiring Magistrate examined certain witnesses and sent a report with the finding that a prima facie case was made out, but at the same time mentioning that there are contradictions on some minor points. Now the learned Sub‑Divisional Magis trate being in of seisin the case is not prevented from taking further evidence if he is in doubt as to the truth of otherwise of the case and is not fully satisfied as to the same from the report of the enquiring Magistrate. The last portion of subsection (1) of section 202 which is very significant runs as follows: " . for the purpose of ascertaining the truth or falsehood of the complaint." It really shows that if the learned Sub‑Divisional Magistrate is not fully satisfied from the report submitted to him by the enquiring Magistrate, he can examine some other witnesses to satisfy himself for the purpose of ascertaining the truth or false hood of the case and the said act of the learned Magistrate would not amount to a flesh inquiry. It is correct to say, as Mr. Hossain has argued, that the learned Sub‑Divisional Magis trate will not be within his right to hold a fresh enquiry after obtaining a report which might have been submitted to him by the enquiring Magistrate who was directed by him to hold an enquiry in the case. But in the present case I am of opinion that the learned Sub‑Divisional Magistrate being in seisin of the case did not hold a fresh enquiry while he heard the complainant again and perused his papers but at the same time he committed error in law by examining the opposite‑party No. 1 who had no locus standi to appear at that stage of the case being an accused named by the complainant‑petitioner. The Patna case which has been referred to me by the learned Advocate for the petitioner, of course, holds the view that the accused has no right to be heard at the stage when the complaint is under consider ation and whether a prima facie case has or has not been made out does not depend on whether the accused has been heard or not, it depends on the kind of evidence which is given by the complainant in support of the petition of complaint. It has also been held in the said case that it is undesirable that the enquiry under section 202, Cr. P. C. should be converted into full‑dress trial. The said case really supports the first contention of the learned Advocate for the petitioner. Although the Patna case relied on the Nagpur case mentioned above, it appears to me that the Nagpur case is not very much important inas much as in it the question of transfer of a case from the file of a Magistrate to that of another arose under section 528, Cr. P. C. on the main ground that the learned Magistrate proceeded to make a further enquiry on receipt of the report of the Magistrate to whom he had sent the same for inquiry and he neither dismissed the case nor directed issue of summons for a long time apart from the irregularity of conducting a second enquiry. Of course observations have been made in the said Nagpur case to the effect that it was irregularity on the part of the Magistrate to begin a fresh enquiry on his own account under section 202, Cr. P. C. after having sent the case for inquiry to a Magistrate and receiving his report. I have also noted above that really it would not be legal on the part of the learned Magistrate to a fresh enquiry and further enquiry in that sense after receiving report from another Magistrate who was directed by him to enquire into the case. But as I have already held that if the learned Magistrate, is in doubt as to the truth or falsehood of the case even after receiving the report from the enquiring Magistrate he is not prevented from taking further evidence to fully satisfy himself as to the case and that will be really in compliance with the provision of section 202 of the Code of Criminal Procedure. From the above discussions it, therefore, follows that there is substance in the first contention of the learned Advocate for the petitioner inasmuch as the learned Magistrate should not of have heard the case of the accused‑opposite‑party No. 1 and relied on the documents produced by him in arriving at his decision, and on this point alone my interference in the case is deemed to be necessary. In the result I make the Rule absolute and direct a further enquiry to be held in the case by the learned Sub‑Divisional Magistrate (South), Barisal, in accordance with law. Rule made absolute.