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PETITIONER: SMT. NAGAWWA

       Vs.

RESPONDENT: VEERANNA SHIVALlNGAPPA KONJALGI

DATE OF JUDGMENT23/04/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA GUPTA, A.C.

CITATION:  1976 AIR 1947            1976 SCR  123  1976 SCC  (3) 736  CITATOR INFO :  R          1978 SC1568  (5,9)  F          1983 SC  67  (8)  R          1984 SC 718  (31)  R          1985 SC 628  (55,68)  RF         1989 SC 885  (7)  RF         1992 SC 604  (103)  F          1992 SC1894  (8)

ACT:      Code of Criminal  Procedure, ss. 202, 204-Enquiry under s. 202-Scope of -Accused if had locus standi.

HEADNOTE:      The appellant  filed a  complaint before the Magistrate alleging that  the police  did not deliberately charge-sheet unrespondents 1  and 2 despite the fact that they abetted in the murder of her son because they were influential persons. After  the  inquiry  the  Magistrate  issued  a  process  to respondents 1  under 2  under s.  204(1)(b) of  the Code  of Criminal  Procedure,   1973.  The   revision   petition   of respondents I  and 2  filed under s. 482 Cr.P.C. was allowed by the  High Court. in appeal to this Court it was contended for. the  appellant that  the High  Court was  in  error  in examining the order of the Magistrate on merits after taking into consideration  the documents  filed by the respondents, which did  not  form  part  of  the  complaint  or  evidence recorded in support thereof before the Magistrate.      Allowing the appeal, ^      HELD: The  order of  the  High  Court  suffers  from  a serious legal  infirmity and the High Court has exceeded its jurisdiction in  interfering in  revision  by  question  the order of the Magistrate. [129 H]      (1) In  the following  cases an order or the Magistrate can be quashed or set aside:      (a) 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;      (b) Where  the allegations  made in  the complaint  are

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patently absurd and inherently improbable so that no prudent person can  ever reach a conclusion that there is sufficient ground for proceeding against the accused.      (c) Where the discretion exercised by the Magistrate in issuing process  is capricious  and  arbitrary  having  been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and      (d) Where  the complaint suffers from fundamental legal defects,  such  as,  want  of  sanction,  or  absence  of  a complaint by  legally competent authority and the like. [128 C-E]      (2) (a)  At  the  stage  of  issuing  the  process  the Magistrate is  mainly concerned with allegations made in the complaint or  the evidence  led and  he is only. to be prima facie satisfied  whether there  are sufficient  grounds  for proceeding against  the accused.  It is  not the province of the   Magistrate to  enter into a detailed discussion on the merits or  demerits of  the case.  The scope  of the inquiry under s.  202 Cr.P.C.  is extremely  limited -limited to the ascertainment of  the truth  or falsehood of the allegations made in  the complaint:  (1) on  the materials placed by the complainant before the court (ii) for the limited purpose of finding out  whether a prima facie case for issue of process had been made out and (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.  In proceedings under  s. 202  the accused has got absolutely no locus standing  and is  not entitled  to  be  heard  on  the question whether the process should be issued against him or not. [126 F; 127 E-F] 124      Chandra Deo  Singh v.  Prokash Chandra  Bose, [1964]  1 S.C.R.  63.9   and  Vadilal  Panchal  v.  Dattatraya  Dulaji Ghadigaonker and Another, [1961] 1 S.C.R. 1. followed.      (b) In  coming to  a decision  as to  whether a process should be  issued the Magistrate can take into consideration inherent  improbabilities  appearing  on  the  face  of  the complaint or  in evidence  led by the complainant in support of  the  allegations.  Once  the  Magistrate  has  exercised judicially the  discretion given  to him  it is  not for the High  Court  or  even  this  Court  to  substitute  its  own discretion for that of the Magistrate or to examine the case on merits  with a  view to  find  out  whether  or  not  the allegations in  the complaint,  if proved,  would ultimately end in  conviction of  the accused. These considerations are totally foreign  to the  scope and ambit of inquiry under 5. 202 of  the Code  of Criminal Procedure, which culminates in an order under s. 204 of the Code. [127G-H; 128A-B]      (3) In  the instant case the High Court should not have quashed the  proceedings. The  order of the Magistrate was a reasoned one  which took  into consideration the allegations in the  complaint as also the evidence adduced in support of it. It  was not  a case  where the  Magistrate had passed an order ill a mechanical manner or just by way of routine. The High Court  could not  to into this matter in its revisional jurisdiction which is a very limited one. [ 128 F-G]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 99 of 1976.      Appeal by  Special Leave  from the  Judgment and  order dated 16-12-75  of the  Karnataka  High  Court  in  Criminal Petition No. 50 of 1975.

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    N. B. Datar and R. B. Datar for the Appellant.      M. C.  Bhandare, (Mrs.)  S. Bhandare,  M. S.  Narsimhan Sharma, and A. K. Mathur for Respondents I and 2.      Narayan Nettar for Respondent No. 3.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against the judgment of the Karnataka High Court by which it set aside  the order  of the Additional Judicial Magistrate, First Class, Gokak issuing process against respondents 1 & 2 in exercise  of his  discretion under  s. 204 of the Code of Criminal Procedure.  The facts of the case lie within a very narrow compass  and although  the High Court has taken great pains to  write a  laboured judgment  the point  involved is short and  simple and  does not merit a detailed discussion. The police  of Gokak Police Station submitted a charge-sheet against Nagappa  Giddannavar and seven others under ss. 302, 114, 148,  147 and other sections on the allegations that on July 19,  1973 the  accused persons had waylaid and murdered one  Nagappa  son  of  the  appellant  in  this  Court.  The appellant, who  had filed  the report before the police does not appear  to have bean satisfied with the investigation by the police  which according  to  her  was  tainted  and  had suppressed  some  important  materials,  filed  a  complaint before the  Magistrate at  Gokak on October 4, 1973 alleging that respondents  1 &  2 had  in fact abetted the offence of murder committed  by the  other accused  but  as  they  were influential 125 persons their names were deliberately left out in the report as also in the dying declaration. On receiving the complaint on October 4, 1973 the Magistrate decided to hold an inquiry into the  complaint himself and in pursuance of his decision he recorded some evidence on October 8, 1973. Thereafter the case was  posted for  October 10,  1973  for  arguments  and further evidence, if any. On October 10, 1973 the Magistrate observed that  six  witnesses  had  been  examined  and  the evidence recorded  so far  was sufficient  for the  Court to determine the  question as  to whether or not process should be issued  to respondents  1 & 2. He then adjourned the case for argument  for October  12, 1973.  On that  day arguments were  heard  but  before  any  order  could  be  passed  the Magistrate who had recorded the evidence was transferred and therefore the  case had  to be adjourned. The new Magistrate took up  the matter  on November  26, 1973 and after hearing the complainant  he adjourned  the case  to December 3, 1973 and on this day he directed that further inquiry may be made by Superintendent  of Police,  Belgaum  and  he  accordingly referred  the   matter  for   inquiry  and   report  to  the Superintendent of  Police, Belgaum  asking him to submit his report within  six weeks. It seems to us that in view of the change of  the Magistrate  the successor  Magistrate was not able to  grasp the implications of the proceedings which had been taken  by .  his predecessor  who  had  in  fact  first decided to  hold an  inquiry himself and after recording the evidence had  decided to  pass an  order under s. 204 of the Code of Criminal Procedure. Before however he could pass any order he  was  succeeded  by  the  present  Magistrate.  The appellant filed an application in revision to the High Court on December  11, 1973  against the  order of  the Magistrate dated  December   3,  1973   referring  the  matter  to  the Superintendent of  Police for  inquiry and report. While the application was pending before the High Court, respondents 1 & 2  filed a  petition before  the High Court praying for an early hearing  of the  revision and for vacation of the stay order. Along  with this  petition the  respondents  filed  a

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number of  documents including  the copies  of the petitions sent by the appellant to the Chief Minister and the Speaker. We might indicate here that there was absolutely no occasion for the  respondents to  have filed the documents before the High Court  in a  miscellaneous petition nor did they obtain any permission  of the Court for filing those documents. The High Court,  after hearing the revision application filed be the appellant, allowed the same mainly on the ground that as the Magistrate  had ultimately  decided to  hold an  inquiry into the  truth or falsehood of the complaint himself he had no jurisdiction  to  stop  that  inquiry  and  then  make  a reference to  the police  afresh. The High Court accordingly quashed the  order of  the Magistrate  and directed  him  to decide the  case in  accordance with the law after recording further evidence, if any. It appears that the High Court did not give  any directions  to the  Magistrate for considering the documents which had been filed by the respondents before it but  by a subsequent order merely forwarded the documents to  the  Magistrate.  The  papers  were  sent  back  to  the Magistrate on January 7, 1975 and by his order dated January 27, 1975  the Magistrate was informed that the appellant did not want  to adduce  any further  evidence. The  matter  was accordingly posted  for argument  on February  7,  1975  and after hearing the 126 arguments and  considering  the  evidence  recorded  by  the Magistrate he  by his order dated February 11, 1975 directed process to  be issued  against respondents  1 &  2 under  s. 204(1) (b)  of the Code of Criminal Procedure. Respondents 1 & 2 then preferred a revision against this order to the High Court under s. 482 of the Code of Criminal Procedure praying that the  order of  the  Magistrate  may  be  quashed.  This revision was allowed by the High Court by the impugned order against which special leave was granted by this Court at the instance of the appellant.      In support of the appeal Mr. H. B. Datar submitted that the Magistrate  had given  cogent reasons  for holding  that there  were   sufficient  grounds   for  proceeding  against respondents 1  & 2  and the  High  Court  was  in  error  in interfering with  the order  of the  Magistrate by examining the merits  of the  case after taking into consideration the documents filed by the respondents which could not be looked into by  the Magistrate  as they  did not  form part  of the complaint or  the evidence  recorded in  support thereof. In our opinion the contention raised by the learned counsel for the appellant  is well-founded  and must  prevail. Mr. M. C. Bhandare sought  to repel  the argument  of the appellant on the ground that the order of the Magistrate was perverse and as  the   case  was  full  of  patent  absurdities  and  was politically motivated  the prosecution  of respondents 1 & 2 would amount to unnecessary harassment resulting in abuse of the process of the Court. In the view we take in the instant case it  is not necessary for us to enter into the merits of the case  at this stage. It is well settled by a long catena of decisions  of this  Court that  at the  stage of  issuing process  the   Magistrate  is   mainly  concerned  with  the allegations made  in the  complaint or  the evidence  led in support of  the same  and he  is  only  to  be  prima  facie satisfied  whether   there  are   sufficient   grounds   for proceeding against  the accused.  It is  not the province of the Magistrate  to enter  into a  detailed discussion of the merits or  demerits of  the case  nor can  the High Court go into this  matter in  its revisional jurisdiction which is a very limited one.      In Chandra  Deo Singh  v. Prokash  Chandra Bose(1) this

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Court had  after fully  considering the  matter observed  as follows:           "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  s. 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-s.  (1) of  s. 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 (1) (1964)1 S. C. R. 639, 648 127      and the  statements made before him by persons examined      at the instance of the complainant." Indicating the  scope, ambit  of  s.  202  of  the  Code  of Criminal  Procedure   this  Court   in  Vadilal  Panchal  v. Dattatrya Dulaji  Ghadigaonker and  Another(1)  observed  as follows:           "Section 202  says that  the Magistrate may, if he      thinks lit,  for reasons  to be  recorded  in  writing,      postpone  the  issue  of  process  for  compelling  the      attendance of  the person complained against and direct      an inquiry for the purpose of ascertaining the truth or      falsehood of  the complaint;  in other words, the scope      of an  inquiry under  the section is limited to finding      out the truth or falsehood of the complaint in order to      determine the  question of  the issue  of process.  The      inquiry is for the purpose of ascertaining the truth or      falsehood of  the complaint;  that is, for ascertaining      whether there  is evidence  in support of the complaint      so as to justify. the issue of process and commencement      of  proceedings   against  the  person  concerned.  The      section does not say that a regular trial for adjudging      the guilt or otherwise of the person complained against      should  take  place  at  that  stage;  for  the  person      complained against  can‘  be  legally  called  upon  to      answer; the  accusation made  against him  only when  a      process has issued and he is put on trial."      It would  thus be  clear from the two decisions of this Court that  the scope  of the  inquiry under  s. 202 of the. Code of Criminal Procedure is extremely limited-limited only to the  ascertainment of  the truth  of  falsehood,  of  the allegations made  in  the  complaint-(1)  on  the  materials placed by  the complaint  before the  Court.  (ii)  for  the limited purpose  of finding  out whether  a prima facie case for issue  of process  has been  made  out;  and  (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.  In fact  it is  well settled that in proceedings under  s. 202  the accused has got absolutely no locus us  standi and  is not  entitled to  be heard  on  the question whether the process should be issued against him or not.      Mr. Bhandare  laid great stress on the words "the truth or  falsehood  of  the  complaint"  and  contended  that  in determining whether  the complaint is false the Court can go into the  question of the broad probabilities of the case or

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intrinsic infirmities appearing  in the evidence. It is true that in  coming to a decision as to whether a process should be  issued   the  Magistrate  can  take  into  consideration inherent  improbabilities  appearing  on  the  face  of  the complaint or  in the  evidence led  by the  complainant  ill support of  the allegations  but there  appears to be a very thin line of demarcation between a probability of conviction of the  accused and  establishment of  a  prima  facie  case against him.  The Magistrate  has been  given  an  undoubted discretion in  the matter  and  the  discretion  has  to  be judicially  exercised   by  him.  Once  the  Magistrate  has exercise his discretion it is not for      (1) [1961] 1 S. C. R. 1, 9. 128 the High  Court, or  even this  Court, to substitute its own discretion for.  that of  the Magistrate  or to  examine the case on  merits with  view to  find out  whether or  not the allegations in  the complaint,  if proved,  would ultimately end in  conviction of  the accused. These considerations, in our opinion,  are totally  foreign to the scope and ambit of an inquiry  under s.  202 of  the Code of Criminal Procedure which culminates  into an  order under  s. 2042 of the Code. Thus it  may be  safely held  that in the following cases an order of  the Magistrate issuing process against the accused can be quashed or set aside:           (1)  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 net  disclose                the essential ingredients of an offence which                is alleged against the accused;           (2)  where the  allegations made  in the complaint                are patently absurd and inherently improbable                so that  no prudent  person can  ever reach a                conclusion that  there is  sufficient  ground                for proceeding against the accused;           (3)  where   the  discretion   exercised  by   the                Magistrate in  issuing process  is capricious                and arbitrary  having been based either on no                evidence or  on materials  which  are  wholly                irrelevant or inadmissible; and .           (4)  where the  complaint suffers from fundamental                legal defects,  such as, want of sanction, or                absence of  a complaint  by legally competent                authority and the like. The cases  mentioned  by  us  are  purely  illustrative  and provide  sufficient  guidelines  to  indicate  contingencies where the High Court can quash proceedings.      Applying these principles to the facts of facts present case it  seems to  US that  the present  case is  not one in which the High Court should have quashed the proceedings. To begin with,  the order  of the Magistrate dated February 11, 1975 issuing  process against respondents 1 and ‘2 is a very well  reasoned   one  which  takes  into  consideration  the allegations in the complaint as also the evidence adduced in support of  it. The  Magistrate clearly applied his mind and has analysed  the evidence  into three  categories-(1) those witnesses who  have deposed  as eye  witnesses regarding the actual occurrence  and the  part attributed to respondents 1 and 2.  The Magistrate  then refers  to other  witnesses who corroborated the  evidence of  the complainant,  and thirdly the Magistrate  relied on the evidence of witnesses who were admittedly signatories  to the  dying  declaration  and  had clearly stated on oath that the names of respondents 1 and 2

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were mentioned  in their  presence by  the deceased but were not recorded  by the  Police Patel  in the dying declaration and in  spite of the protest by the witnesses they were made to sign  the dying  declaration as attesting witnesses under threat and  duress. On  a consideration of this evidence the Magistrate was satis- 129 fied that a prima facie case against respondents 1 and 2 was made out  and he accordingly issued process against them. It was not  a case  where the  Magistrate had  passed an  order issuing process  In a  mechanical manner  or just  by way of routine. The  High Court appears to have gone into the whole history of  the case,  examined the  merits of the evidence, the contradictions  and what  it called  the improbabilities and after  a detailed  discussion not  only of the materials produced before  the Magistrate  but also  of  the  document which had  been filed  by the  defence and  which should not have been  looked into  at the  stage when  the  matter  was pending under  s. 202,  has  held  that  the  order  of  the Magistrate was  illegal and  was fit  to be  quashed. In the first place  the High Court ought not to have considered the document filed  by respondents  1  and  2  in  the  previous revision without  obtaining the permission of the Court and‘ particularly when  the High  Court itself gave no directions whatsoever to  the Magistrate  to consider those  documents. In fact  the  Magistrate  considering  the  question  as  to whether process  should be issued against the accused or not cannot be  into the  materials placed  by  the  accused  and therefore the  High Court  could not  have  given  any  such directions while  disposing of  the previous,  revision. The impugned order  of the High Court proceeds on the basis that it was  incumbent on  the Magistrate  to have considered the documents and  their effect on the truth or falsehood of the allegations made  by the  complainant. This  was an entirely wrong approach  As we  arc clearly  of the  opinion that the Magistrate was  fully justified  in completely excluding the documents from  consideration, we  refrain from  making  any observation regarding  the, effect  of those  documents.  In fact the documents filed by the respondents were mere copies and they  were, therefore,  not admissible.  At any rate, at the stage  of s.  202, or  s. 204  of the  Code of  Criminal Procedure as  the accused had no locus standi the Magistrate had absolutely  no jurisdiction  to go into any materials or evidence which  may be  produced by the accused who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under  s. 202 would have to be converted into a full dress trial defeating the very object for which this section has been  engrafted he  High Court  in quashing the order of the Magistrate  completely failed.  to consider  the limited scope of  an inquiry  under s. 202.  Having gone through the order of  the Magistrate  we do  not find  any error  or law committed  by   him.  The   Magistrate  was  exercises’  his discretion and  has given cogent reasons for his conclusion. Whether  the  reasons  were,  good  or  bad,  sufficient  or insufficient, is not a matter which could have been examined by the  High Court  ill  revision.  We  are  constrained  to observe that  the High  Court went  out of  its way  write a laboured judgment highlighting certain aspect of the case of the accused  as appearing  from the documents filed ’of them which they  were not  entitled to  file and  which were  not entitled in law to be considered.      For these reasons, therefore, we arc satisfied that the order of  the  High  Court  suffers  from  a  serious  legal

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infirmity and the High Court      11-833 SCI/76 130 has exceeded  its jurisdiction in interfering in revision by quashing the  order of  the Magistrate. We, therefore, allow the appeal,  set aside  the order  of the  High Court  dated December 16,  1975 and  restore the  order of the Magistrate issuing   process   against   respondents   1   and   2.      At the  time of  granting the  special  leave,  we  has directed the Sessions Judge who was trying the original case resulting from  the F.I.R.  lodged before the police to stay proceedings to  the extent  that the  judgment was not to be pronounced until  this appeal was disposed of. We understand that the  Sessions case  is now concluded before the learned Sessions Judge and arguments have also been heard. 1 view of the  order   of  the   Magistrate  issuing  process  against respondents 1   and  2 which  has been  confirmed by us, the respondents will  have to  face a supplementary trial and it is not  conducive in  the interests  of justice to allow the other trial  to be stayed any further. The Sessions Judge is therefore directed  to dispose  of the Sessions Case and the stay granted by this Court earlier is Vacated.                                             Appeal  allowed. 131