Gopal Chauhan v. Smt. Satya And Another

1. The petitioner has filed this petition invoking the inherent powers of this court under S. 482 of the Cr. P.C as well as supervisory powers under Art. 227 of the Constitution of India and wants to quash the process issued by the Judicial Magistrate First Class at Simla under Ss. 380, 420, 448, 500 and 501 I.P.C before more than three years from now. i.e on 9th July, 1975, and the subsequent proceedings which have taken place in the court of the learned Magistrate pursuant to the issue of that process.

2. Short facts of the case are that the respondent No. 1 Smt. Satya filed a complaint against the present petitioner making certain allegations to show that the petitioner played fraud and deceit on her with the result that she was induced to surrender her body to the petitioner for a number of months and ultimately she also conceived and committed abortion at the instance of the petitioner. She has further alleged that though the petitioner had perforated a Gandharv style of marriage with her and had promised to perform a regular marriage subsequently, the petitioner backed out and cheated her. It is further alleged that on a certain day the petitioner took away the letters which were in her possession addressed to her by the petitioner himself. On these and other allegations, the respondeat No. 1 has filed a complaint for the alleged offences under Ss. 380, 420, 448, 500 and 501 I.P.C The learned Magistrate before whom this complaint was filed examined one witness and some documents produced by the petitioner and then passed the following order as regards the process:

“One P.W recorded. I am of the view that there is sufficient ground to proceed against the accused under Ss. 380, 420, 448, 500 and 501 I.P.C Let summons issue to the accused for 1-8-75”.

3. It appears that thereafter the case lingered on without any evidence being recorded. From the process which is issued by the learned Magistrate it appears that the trial was expected to be a warrant trial wherein evidence would be first recorded and then the Magistrate would be expected to come to a conclusion whether charge should be framed or not. That stage has not still arrived. I am informed at the Bar that 3rd June 1978 was the last date before the court of the learned Magistrate for recording evidence. On that day, one of the witnesses of the prosecution was absent though served and, therefore, warrant to procure his appearance was issued and the case was adjourned to 18-8-1978. In the meanwhile, the present petition was filed on 17-7-1978 and stay of the proceedings before the court of the learned Magistrate was obtained by the present petitioner on 18th July, 1978, with the result that on 16-8-1978 the learned Magistrate could not proceed further in the case. The petitioner has now approached this Court by this petition raising three grounds, namely, (1) that the complaint which is filed by the first respondent does not disclose any offence even if the facts stated therein are proved and, therefore, the learned Magistrate was not justified in issuing any process and taking subsequent steps pursuant thereto; (2) the learned Magistrate has committed an error in issuing the process under S. 204 of the Criminal Procedure Code without appreciating the allegations made in the complaint and the evidence offered by the respondent before the process was issued. It was contended that the order issuing process which is quoted above does not contain any reasons and, therefore, the same is vitiated. In other words, at? cording to the petitioner, this order ought to have been a speaking order as held by the High Court of Punjab and Haryana in some cases; and (3) the dispute between the parties is essentially civil and in view of the fact that a civil suit is pending between the parties this complaint cannot proceed further and this Court should interfere in exercise of its in he rent powers under S. 482 of the Cr. P.C

4. Shri Sud who appeared on behalf of the first respondent has raised a preliminary objection that this petition cannot lie and there would be no justification in invoking the inherent powers of the High Court in view of the fact that it is preferred more than three years after the learned Magistrate issued process on 8th July, 1975. It was pointed out that the proceedings subsequent to the process are merely consequential and it was really the order issuing process which mattered against the present petitioner. It was further contended that this order was revisable and, therefore. the petitioner should have sought his remedy in revision within the period of limitation, Since, however, he has not done so, this Court would not be justified in interfering with the proceeding's of the lower Court either under Section 482 of the Criminal Procedure Code or under Art. 227 of the Constitution.

5. It is found from the decision given by the Supreme Court in Amar Nath v. State of Haryana reported in (1977) 4 SCC 137 : (1977 Cri LJ 1891) that an order issuing process after taking cognizance of a complaint cannot be treated as an interlocutory order. One reason which is given for this is that had the order not been passed the proceeding) would have come to an end. We have followed this decision and the subsequent decision given by the Supreme Court in Madhu Limaye v. State Of Maharashtra. reported in (1977) 4 SCC 551 : AIR 1978 SC 47 : (1978 Cri LJ 165) and in Criminal Revn. No. 10 of 1975 Goldstein v. S. Haque decided on Nov. 1, 1978 reported in 1979 Cri LJ 338 (HP). In view of this, the order passed by the learned Magistrate on 9-7-1975 issuing process under the above referred Section of the Penal Code (sic) could not have been considered as an interlocutory order and revision could have been preferred against the same. However, the petitioner has sat silent against that order for more than three years.

6. Even apart from the fact that the petitioner could have approached this Court or the Sessions Court by preferring a revision application, the inherent powers of the High Court under S. 482 of the Criminal Procedure Code or the power of superintendence vested in the High Court under Art. 227 of the Constitution are not expected to be invoked very lightly. Here is the case wherein the petitioner has slept over his supposed grievances for more than three years and it is apparent that he has approached this Court only when he came to know that the court was actually proceeding with the case. The intention of the petitioner is, therefore, quite apparent. He obviously wants to impede the proceedings of the lower Court by showing his liveliness to his supposed grievances after more than three years. Neither the inherent powers contemplated by S. 482 of the Cr. P.C nor the powers of superintendence contemplated by Art. 227 of the Constitution are meant to help such tactics of a litigant. On this short ground this petition is liable to be thrown out.

7. However, several other contentions have been strenuously pressed during the course of the hearing of this petition, and some of them are likely to affect other matters; I therefore propose to proceed Fulcher with the consideration of these contentions.

8. The first contention, as already stated above, was that the allegations made in the complaint by the respondent No. 1 even if taken as true, do not constitute any offence whatever. For this purpose I have minutely gone through the complaint and I find that it is not possible to say that if the allegations made in the complaint are taken as true the offences under Ss. 380 and 420 I.P.C cannot be said to have been made out. So far as of fence under S. 380 is concerned, respondent No. 1 has alleged that the letters which were addressed to her by the petitioner have been stolen by the petitioner from her house. At the relevant time it appears that both the parties, were residing together in the same house but it cannot be disputed that the letters which were addressed to the respondent No. 1 were her property and if these letters are proved to have been taken away by the petitioner from the possession of the respondent without her consent. the ingredients of S. 380 would be satisfied. Question of proof apart, therefore, it cannot be said that the complaint filed by the first respondent does not make out the case for the offence under S. 380 I.P.C

9. So far as S. 420 is concerned, the complainant has alleged that from the beginning the intention of the petitioner was to exploit her physically and, therefore, by practising fraud and deceit he used to show affection to her and also had sexual intercourse with her many a time. If these allegations are true, it cannot be said that it would never make out a case of cheating.

10. So far as Ss. 448, 500 and 501 I.P.C are concerned, I have not been able to find from the complaint whether these offences can be said to have been made out. However, without discussing this aspect of the matter any further I would simply observe that under S. 245(2) of the Cr. P.C it is always open to an accused person to request the lower Court to pass proper orders as regards discharge even before evidence is recorded under sub-sec. (1) of S. 245, and the Magistrate can pass necessary orders of discharge if the Magistrate finds that the process was issued on grounds which were totally insufficient the learned Advocate of the petitioner requested me to pass necessary order as regards the discharge of the accused for the of fence under Ss. 448, 500 and 501 I.P.C I can do this only by utilising the High Court's inherent powers under S. 482 or its powers of superintendence under Art. 227 of the Constitution. But looking to the above stated history of the case and especially the fact that the petitioner has approached this Court very late, I find that the petitioner is not entitled to the invocation of these powers.

11. Dining the course of the hearing a question arose whether an accused person can be discharged under sub-sec. (2) of S. 245 of the Cr. P.C after the process is issued but before the evidence is recorded under sub see (1) of S. 245. Answer to this question is provided by the language of sub-sec. (2) itself which says that nothing in S. 245 shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. This sub-section follows sub-sec. (1) of S. 245 which speaks about the discharge of the accused on consideration of the evidence recorded under S. 244. Therefore, the language of sub-sec. (2) of S. 245 clearly indicates a situation where the accused is required to be discharged even before the evidence is recorded. There are numerous decisions giving support to the view which I am taking, but I would rest satisfied by referring to the pertinent observations made by Dixit, J. in Mansoor Shah v. Maya Shankar reported in AIR 1952 Madh Bha 125 : (1952 Cri LJ 1029) wherein the learned Judge has succinctly explained the distinction between the provisions contained in sub-sec. (1) and subsec. (2) of S. 245 of the Code.

The learned Judge has rightly observed that while under the first sub-section (of S. 253 of the old Code) the discharge is on the ground that no case has been made out, under the second sub-section the discharge is on the ground that the charge against the accused is groundless. The learned Judge has further clarified that to say that no case is made out is not the same thing as saying that the charge is groundless. The first sub-section obviously contemplates the taking of all the evidence referred to in S. 252 (now S. 244), but subsec. (2) (of S. 253 of the old Code and S. 245 of the new Code) deals with the cases in which the complaint appears to be groundless ab initio or if it appears, after some witnesses of the complainant have been examined, that the examination of all or any of the remaining witnesses for the prosecution cannot materially help the case of the complainant.

12. In this view of the matter, whenever a person against whom a process is issued by a criminal court feels that the process ought not to have been issued either for want of any statutory sanction or on the ground that the averments made in the complaint make out no case, or on any other such ground, it would be open to the accused concerned to move the authority issuing the process to discharge him even before the evidence is recorded. If thus it is open to an accused to move the original court first, it would always be proper for him to avail of that remedy before invoking the inherent powers or the extraordinary powers of the High Court. In ordinary course, therefore, the High Court would not like to encourage the litigant to invoke its extra ordinary powers or inherent power without first utilising the remedy available to him with the lower authority.

13. Next grievance of the petitioner was that the learned Magistrate ought to have passed a speaking order before issuing process against him. I have already quoted the order which the learned Magistrate has passed before issuing the process. That order shows that the learned Magistrate has applied her mind not only to the complaint, the complainant's statement, but also to the statement given by one witness who was examined by the complainant; she has then recorded that in her view there was sufficient ground to proceed under the relevant Sections. S. 204 of the Cr. P.C speaks about the issue of process and says that if in the opinion of a Magistrate, taking cognizance of an offence, there is sufficient ground for proceedings, he may issue summons or warrant, as the case may be, for causing the accused to be brought or to appear at a certain time before him. The bare reading of S. 204 shows that it is not the caprice or the fiat of the Magistrate which would work at the time of issuing of the process, because before issuing the process the Magistrate has to form an opinion that there is sufficient ground for proceeding.

This opinion is obviously a judicial opinion which rules out any caprice or whim. The question, however, is whether for evidencing that the Magistrate has acted on the formation of a judicial opinion, it is necessary for him to appreciate the allegations and evidence and to record reasons before issuing the process under S. 204 of the Code. Recording of reasons, it may be noted, is the best evidence to show that the Magistrate has applied his mind and has formed a particular opinion. But is it possible to say that if reasons are not recorded it must follow that the judicial opinion for issue of the process was not formed at all? It should be noted that whenever the Legislature has felt that for a particular order reasons must be recorded the Legislature has said so very clearly and specifically in the scheme of the Code. S. 203, which immediately precedes S. 204, is an instance on the point, because, according to that Section, if a complaint is required to be dismissed, if after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation under Sec. 202 of the Code the Magistrate is of opinion that there is no sufficient ground for proceeding, the Magistrate must record his reasons.

Thus S. 203 makes a sepcific provision about recording of reasons and obliges the Magistrate to do so if he wants to dismiss the complaint the phraseology of S. 204 does not show that it is incumbent upon the Magistrate to record his reasons. This contrast between the two Sections, which provides for the result of consideration of evidence on a complaint, clearly brings about the intention of the Legislature that for the purpose of dismissing a complaint the recording of reasons is a specific requirement, but not so if the complaint is to proceed by the issuance of a process. The obvious reason for making this distinction is that if a complaint is dismissed under S. 203 the proceedings acquire a finality. But if process under S. 204 is issued and the complaint is not dismissed, the person against whom the process is issued has still got a chance of obtaining a discharge under Section 245 of the Code. Thus, on proper construction of S. 204 of the Code it is found that though it is obligatory on the Magistrate issuing process to formulate a judicial opinion, which can never be a capricious one, he is not bound to record his reasons for the same.

14. In this connection my attention was drawn to the decision given by Delhi High Court in Udey Bir Singh v. Smt. Shakuntala Devi reported in 1974 Cri LJ 187 wherein it is observed that consideration of the opening part of S. 204 of the Code shows that for proceeding against any accused person the Magistrate must make manifest in his order the sufficient grounds which may have led to his opinion that the proceedings should be initiated, because law does not warrant any arbitrary order under this Section. My attention was also drawn to the decision given by the High Court of Punjab and Haryana in Jangir Singh v. Smt. Bharpur Kaur reported in 1976 Chand LR (Cri) 63 wherein it is held that order of issuing process must be a speaking order.

Similar view is consistently taken by the High Court of Punjab and Haryana even in other cases, namely, Smt. Inder Kahari v. Mahesh Kumar Mehra 1977 Chand LR (Cri) 17 and K.L Nagpal v. Sat Farkash Jindal, 1977 Chand LR (Cri) 152. I have perused these decisions but, with great respect to the learned Judges I cannot persuade myself to take the view which they have taken in these decisions for the reasons already mentioned by me above. I find that S. 204 does not oblige a Magistrate to record a speaking order, and that it would be quite a sufficient compliance with the provisions of law if it is found that the Magistrate has applied his mind to the facts of the case and has formed a judicial opinion that there is sufficient ground for proceeding with the case and for issuing process under a particular Section. If once again we make a reference to the order passed by the learned Magistrate at the time of issuing process it is apparent that she has applied her mind to the facts produced by the complainant before her and, therefore, it cannot be said that she has acted without jurisdiction.

15. So for as the third point is concerned, there cannot be any absolute proposition of law that whenever a civil proceeding is pending between the parties criminal proceedings can never be proceeded with. There are many transactions which result in civil as well as crixoina] liabilities. Cheating, misappropriation and theft are undoubtedly the transactions of this type. Therefore, simply because cavil proceedings between the parties are pending it cannot be said that the present proceeding cannot go on before the learned Magistrate.

16. This disposes of all the points raised before me and I find that there is no substance in this petition which is dismissed and the rule is discharged.

17. It need not be clarified that whatever is said in this judgment about the sufficiency of the complaint should not prejudice the mind of the learned Magistrate who, at the time of framing the charge, is bound to consider the evidence which is adduced by the parties for the purpose of considering whether charge under the particular Section should be framed or not. Parties to appear before the leaned Magistrate on 21st Nov. 1978. Advocates informed accordingly.

18. Petition dismissed.