G.B Patnaik, J.:— Petitioners are accused persons in a complaint case bearing IOC Case No. 20 of 1982 pending in the Court of the Judicial Magistrate First Class, Ranpur. On the basis of a complaint filed by the opposite party on 25.6.1982 alleging that offences were committed by the petitioners on 10-10-1981, the learned Magistrate took cognisance of the offences by order dated 24-11-1982 and issued process against the accused persons. The present revision is directed against the said order praying to quash the said order as well as the criminal proceedings.
2. According to the petitioners, for the self-same incident, the complainant-opposite party lodged an F.I R, in Rajsunakhala Outpost on 10th of October, 1981, which was registered as Gr. R. Case No. 116 of 1981 under section 436, Indian Penal Code. The two accused persons in the said Gr. R. case were Purnachandra Behura and Sarat Kumar Samantaray, but in the F, I.R the informant had stated that there were several others along with Purnachandra Behura. During the pendency of the said criminal case, the present complaint was filed wherein it was alleged that though information was lodged in the police station, yet police did not arrest all the accused persons and neglected the investigation for which the complaint was filed. In the complaint petition, the complainant had stated that there were large number of witnesses to the occurrence including witnesses Kuber Raut, Krushna Chandra Mohapatra and Braj Kishore Bala. On receipt of the complaint, the learned Magistrate called for the records of the G.R case, as requested by the learned counsel for the complainant, for reference. By order dated 9-7-1982, the learned Magistrate came to the conclusion that the offence in the Gr. R. Case as well as the complaint case was essentially the same and the time occurrence was also the same. The Magistrate, therefore, in exercise of his power under section 210, Code of Criminal Procedure, stayed further proceedings in the complaint case and directed the officer in charge to submit final form in the Gr. R. case. The order of the Magistrate dated 26-8-1982 shows that the Magistrate received charge sheet against two accused persons, namely Purnachandra and Sarat Kumar under section 436/114, Indian Penal Code, in the Gr. R. case. Thereafter by order dated 9-9-1982, the learned Magistrate directed that the complaint case against accused Purnachandra and Sarat Kumar should be tried along with Gr. R. Case No, 116 of 1981 and the case against other accused persons on the complaint be put up for enquiry under section 202 of the Code of Criminal Procedure. The 202, Cr. P.C enquiry was held on 20-10-1982 and 24-11-1982 when the complainant and two of his witnesses were examined and the learned Magistrate then took cognisance against the petitioners under section 436 read with sections 147, 148 and 149 of the Indian Penal Code and summoned the accused persons for their appearance.
3. In the meantime, the G.R case against Pumachandra and Sarat Kumar cnlminated by an order of conviction dated 18-4-1983 passed by the Assistant Sessions Judge, Nayagarh, in Sessions Trial No. 37/108 of 1982, but on appeal, in Criminal Appeal No. 68 of 1983, the Sessions Judge, Puri, acquitted both the accused persons. The certified copy of the judgment of the Sessions Judge in the said criminal appeal was produced before me by the learned counsel for the petitioners.
4. The learned counsel for the petitioners contends that the order of the learned Magistrate taking cognisance of the offence is bad in law since the offence under section 436, Indian Penal Code, is exclusively triable by the court of session and the proviso to sub-section (2) of section 202 of the Code of Criminal Procedure has not been complied with, inasmuch as admittedly all the eye witnesses have not been examined. He further contends that the complaint itself having been lodged after long delay and the same allegation having been enquired into and tried in a G.R case wherein the accused persons have been acquitted, the learned Magistrate should not have entertained the present complaint.
5. Mr. Ram, the learned counsel for the complainant, however, submits that the Magistrate having applied his mind to the materials on record and having been satisfied that there are sufficient grounds for proceeding against the accused persons, it is not for the High Court to go into the matter in its limited revisional jurisdiction nor there is any ground for invoking the inherent jurisdiction of the High Court and consequently, the application is liable to be dismissed.
6. There is no dispute with the proposition that a Magistrate at the stage of issuing process 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. At that stage it is not required that the Magistrate should enter into a detailed discussion of the merits or demerits of the case. Once the Magistrate is satisfied, then the High Court also will not ordinarily interfere with the order of taking cognisance in exercise of its revisional jurisdiction, but where the order directing issuance of process suffers from fundamental legal defects, the High Court would be fully justified in interfering with the said order. The question which remains for consideration is whether issuance of process without examining all the witnesses on behalf of the complainant vitiates the order as being contrary to the provisions contained in the proviso to sub-section (2) of section 202 of the Code of Criminal Procedure, or not. This matter directly came up for consideration before this Court in the case of Gokulananda Mohanty v. Muralidhar Mdllik . 47 1979 C.L.T 244. wherein a Bench of this court after analysing the provisions contained in sections 190 to 204 of the Code of Criminal Procedure, held :—
“The proviso to sub section (2) is relatable to cases exclusively triable by the Court of Session and that proviso requires that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he has to call upon the complainant to produce all his witnesses and examine them on oath. Clause (a) of the proviso to sub-section (1) and the proviso in subsection (2) may be read together as they intend to cover a common class of cases, namely offences exclusively triable by the Court of Session. To repeat for clarity, it would mean that in cases which appear to be triable exclusively by the Court of Session, the Magistrate has to make an enquiry himself and in such enquiry, the complainant has to produce all his witnesses who are to be examined on oath. On the basis of the result of enquiry, in cases where enquiry has been considered necessary, the learned Magistrate has to decide whether there is sufficient ground to proceed and on reaching his judicial conclusion, proceed to take action under section 204 of the Code. Section 204 is the common provision for issue of process covering cases where there is enquiry, or investigation, or where there is none”
7. In paragraph 8 of the reported judgment, their lordships further observed :—
“But the setting in which the proviso to sub section (2) of section 202 occurs, we are inclined to agree with the submission of Mr. Patnaik for the petitioners that the legislative intent was to make a clear provision that in respect of cases exclusively triable by the Court of Session it was obligatory upon the Magistrate to proceed to enquire before issue of process, while in other cases enquiry would be discretionary, once the Magistrate was of the opinion that an offence exclusively triable by the Court of Session alleged to have been committed, the proviso obliged him to proceed to enquire and at such enquiry to call upon the complainant to produce his entire evidence.”
8. In the reported case, as the Magistrate had not complied with the proviso to sub section (2) of section 202, the High Court had quashed the order and had directed the Magistrate to hold an enquiry satisfying the requirements of law as indicated. In the case in hand, which is triable by a Court of Session, admittedly all the witnesses on behalf of the complainant have not been examined by the learned Magistrate in the enquiry conducted under section 202 of the Code of Criminal Procedure, and in that view of the matter, the order dated 24-11-1982 taking cognisance and directing issuance of process is bad in law and mast be set aside.
9. So far as the other contention of the learned counsel for the petitioners is concerned, I think it will not be appropriate for me at this stage to make any detailed enquiry as to whether the allegations of the G.R case and those of the complaint case are the one and the same, though the learned Magistrate himself has found that essentially the allegations are the same. But admittedly, the number of accused persons in the G.R case was only two whereas in the complaint case there are large number of persons against whom allegation has been made and further the allegation is more extensive concerning several other offences. The learned Magistrate may consider this aspect while reconsidering the question of taking cognisance after complying with the proviso to sub-section (2) of section 202 of the Code of Criminal Procedure and decide in accordance with law.
10. In the result, therefore, I would set aside the order of the learned Magistrate dated 24-11-1982 and direct the Magistrate to call upon the complainant to produce all his witnesses as required under the proviso to subsection (2) of section 202 of the Code of Criminal Procedure and after examining all the witnesses, the learned Magistrate would thereafter decide whether a prima facie case has been made out for taking cognisance of the offence and for issuance of process against the accused, or not and then act in accordance with law. The learned Magistrate would also consider the question of delay in lodging the complaint and the ultimate result of the G.R case and to what extent it affects the merits or demerits of the complaint case in the matter of taking cognisance.
11. This Criminal Revision is accordingly allowed with the aforesaid directions and the matter is remitted to the learned Magistrate for disposal of the proceedings in accordance with law.
Revision allowed.
section 202 of the Code of Criminal Procedure,