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Case Number

Criminal Miscellaneous No. 2311 of 1981

Attorney(S)

Nagendra Rai
Jai Narain Pandey
J.P.Shukla
Ajoy Kumar Thakur

Judges

B.P Griyaghey, J.

Acts

sections 307, 436 etc. of the Indian Penal Code (in short the Penal Code)
sub-section (3) of section 210 of the Code. In this section provision
section 307 and other sections of the Penal Code and the Arms Act.
provisions of Proviso to sub-section (2) of section 202 of the Code,
section 482 of the Code of Criminal Procedure (in short the Code)
sub-section (2) of section 202 of the Code
Sub-section (3) of section 210 of the Code
sections 408 and 477A of the Penal Code.
provision of section 202 of the Code
section 173 Cr. P.C

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Smart Summary

Judicial Opinion Summary — B.P. Griyaghey, J.

Factual and Procedural Background

(Summary drawn exclusively from the provided opinion.)

The opinion arises from an application under section 482 Cr.P.C. by the accused in Mohania P.S. Case No. 1(10)71 seeking to quash an order dated 6.10.1980 of the Additional Chief Judicial Magistrate, Bhabhua. The background as stated in the opinion:

An FIR was lodged by Suchit Ahir at Mohania Police Station and a case (Mohania P.S. Case No. 1(10)71) was registered for offences under section 307 and other sections of the Penal Code and the Arms Act.
After investigation, the police submitted a Final Form dated 2.1.1973 stating the case to be "maliciously false." The Final Form was accepted by the Magistrate on 29.4.1980.
During an intervening period the case record was sent to the High Court and some records were later found to be misplaced; the Sessions Judge ordered reconstruction of lost records and disposal of the matter.
The First Informant filed a protest-petition (later treated as a protest-complaint). The Magistrate directed hearing on that protest-petition and conducted an enquiry under section 202 Cr.P.C.: the complainant was examined on solemn affirmation on 5.6.1980 and some witnesses were produced and examined.
On 6.10.1980 the Magistrate, after the enquiry under section 202, passed the impugned order taking cognizance against the petitioners under sections 307, 436 and several other sections of the Penal Code. The accused petitioners challenge that order under section 482 Cr.P.C.

Legal Issues Presented

Whether, after a police final report (Final Form) on the same facts has been accepted by the Magistrate, the Magistrate can later take cognizance on a protest-complaint arising from the same facts.
Whether the Magistrate contravened the proviso to sub-section (2) of section 202 Cr.P.C. by not examining "all" the witnesses of the complainant when the offence is triable exclusively by the Court of Sessions, and whether any non-compliance vitiates the order taking cognizance.
Whether the delay (the occurrence dated 1971 with cognizance taken in 1980) warrants quashing the proceedings.

Arguments of the Parties

Petitioners' Arguments (as recorded)

Once the Magistrate had accepted the police Final Form on the same facts, he could not later take cognizance on a protest-complaint arising from those identical facts.
The Magistrate violated the proviso to sub-section (2) of section 202 Cr.P.C. in a case triable exclusively by the Court of Sessions by not examining "all" the complainant's witnesses in the section 202 enquiry; only two witnesses were examined, and this non-compliance renders the cognizance order illegal.
The occurrence dates from 1971 and, given the delay in taking cognizance until October 1980, the proceedings should be quashed.

The opinion does not contain a detailed account of any opposing or respondent arguments in direct argumentative form; the court's narrative focuses on the petitioners' contentions and the court's analysis in response.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandradeo Singh v. Prakash Chandra Bose (A.I.R 1963 S.C. 1430)	Cited as part of authorities supporting the proposition related to proceedings where police report and complaint are on the same facts (relevant to s.210 Cr.P.C.).	The court referenced this decision among several Supreme Court authorities to support the view that the law (s.210(3) Cr.P.C.) permits the Magistrate to proceed with a complaint when he does not take cognizance on a police report.
Tula Ramand v. Kishore Singh ((1977) 4 SCC 459 : A.I.R 1977 S.C. 2401)	Authority referenced regarding the interplay between police reports and complaints on the same facts.	Used as supporting authority in construing s.210(3) Cr.P.C. to permit proceeding on a complaint where cognizance is not taken on the police report.
Pramatha Nath Talukdar v. Saroj Ranjan Sankar (A.I.R 1962 S.C. 876)	One of the cited Supreme Court decisions on handling police reports and complaint proceedings under the Code.	Cited in support of the court's interpretation that a Magistrate may proceed with the complaint when cognizance is not taken on the police report (s.210(3)).
Bindeshwari Prasad Singh v. Kali Singh ((1977) 1 SCC 57 : A.I.R 1977 S.C. 2432)	Cited as further authority relevant to the legal position under s.210 Cr.P.C.	Referred to among other Supreme Court decisions to justify the court's conclusion on the first point about proceeding under the complaint when police cognizance was not taken.
Sri Jayram R. Ranjan God v. The State of Bihar (1980 B.B.C.J. 265)	Held that the Magistrate must examine all the witnesses before issuing process in a case triable exclusively by the Court of Sessions; non-compliance may render process and subsequent orders illegal (as observed by a Single Judge).	The court considered this decision but noted that the same decision also recognized that if the complainant, when called upon, elects not to examine all witnesses, the examination of those offered may suffice. The court used this to evaluate compliance with the proviso to s.202(2).
Cr. Misc. No. 4195 of 1978 (Division Bench, disposed 20 March 1980)	Interpreted the proviso to sub-section (2) of s.202 Cr.P.C. and held that cognizance may be taken even without evidence of prosecution witnesses before trial in sessions; the proviso is not mandatory in the sense of ousting the power to take cognizance.	The instant court relied on this Division Bench decision to hold that the proviso to s.202(2) is not of mandatory nature that vitiates jurisdiction, and that cognizance can be taken on the complainant's statement even in sessions-triable offences.
State of U.P. v. Kapildeo Shukla ((1972) 3 SCC 504 : A.I.R 1973 S.C. 494)	Supreme Court refused to interfere with quashing of proceedings where trial had protracted for twenty years (case on Sections 408 and 477A).	The court distinguished that authority from the present facts: Kapildeo Shukla concerned extraordinary delay (twenty years) and different offences; the present delay was caused mainly by lost records which were reconstructed, so the precedent did not justify quashing here.
R.P. Kapur v. State of Punjab (A.I.R 1960 S.C. 866)	Refused to quash proceedings where police negligently delayed submission of report under section 173 Cr.P.C. for several months; delay alone did not warrant quashing.	The court cited R.P. Kapur to support the view that delay in processing (here, due to lost records) does not necessarily justify quashing, especially where offences are serious (sections 307, 436 etc.).

Court's Reasoning and Analysis

(Step-by-step account of the court's analysis as stated in the opinion.)

First contention (Acceptance of Final Form prevents later cognizance):
The court examined sub‑section (3) of section 210 Cr.P.C., which the opinion quotes and relies upon. That provision contemplates a situation where the Magistrate does not take cognizance on the police report; in such a case the Magistrate "shall proceed with the inquiry or trial" of the complaint which had been stayed. On that statutory basis, and backed by several Supreme Court decisions (listed in the opinion), the court held that the learned counsel's contention was incorrect: acceptance of a police Final Form on an earlier occasion does not preclude subsequent cognizance being taken on the complaint after enquiry under section 202.
Second contention (Non-compliance with Proviso to sub-section (2) of s.202 Cr.P.C.):
The court analyzed the proviso, which provides that if the offence is triable exclusively by the Court of Sessions the Magistrate "shall call upon the complainant to produce all his witnesses and examine them on oath." The petitioners argued that the Magistrate examined only two witnesses and thus violated this proviso, rendering the cognizance order illegal.

The court considered a Single Judge decision (Sri Jayram R. Ranjan God) that emphasized examination of all witnesses, but also noted that that decision recognized the sufficiency of evidence actually offered if the complainant elects not to produce all witnesses when called upon. Furthermore, the court relied on a Division Bench decision in Cr. Misc. No. 4195/78 which interpreted the proviso as not mandatory to the extent of ousting the Magistrate's power to take cognizance—i.e., cognizance can be taken on the complainant's statement without evidence of all prosecution witnesses beforehand.

The court also found that the magistrate, by order dated 10.6.1980, had directed the complainant to produce his witnesses and that the complainant produced and examined some witnesses; thus, the court concluded the proviso had effectively been complied with (or that partial examination, if chosen by the complainant, is sufficient). The court therefore rejected the contention that non-compliance vitiated the cognizance order.
Third contention (Delay in proceedings from 1971 to 1980):
The petitioners relied on State of U.P. v. Kapildeo Shukla where the Supreme Court quashed proceedings after very long protraction (twenty years). The court distinguished that authority: the facts, offences, and extent of delay were different. The court also referred to R.P. Kapur, where delay by police did not justify quashing. In the present case the court found the principal reason for delay was loss of records (which were reconstructed) rather than inaction by the complainant, and the offences charged were serious (sections 307 and 436 etc.). For these reasons the court considered the delay insufficient to warrant quashing the proceedings.
Conclusion of analysis:
The court found no merit in any of the three grounds advanced by the petitioners; it held that statutory provisions and the authorities cited did not support quashing the Magistrate's order taking cognizance on 6.10.1980.

Holding and Implications

Holding: The application under section 482 Cr.P.C. is DISMISSED. The court found no legal basis to quash the Magistrate's order dated 6.10.1980 taking cognizance under sections 307, 436 and other sections of the Penal Code.

Implications

Direct effect: The impugned Magistrate order of 6.10.1980 stands; the petitioners' application to quash that order is rejected and the proceedings were not quashed by this court.
On broader precedent: The opinion relies on existing statutory provisions (s.210(3), proviso to s.202(2)) and earlier judicial decisions to interpret the Magistrate's powers and procedural requirements; the court did not indicate that it was creating or modifying legal precedent beyond applying those authorities. Therefore, no new legal principle was announced by this opinion beyond its application to the facts at hand.

Date of the impugned Magistrate order (as quoted in the opinion): 6.10.1980. Final Form submitted by police: 2.1.1973. The court's order: application dismissed.

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Bhagwat Pandey And 10 Others v. The State Of Bihar Opposite Party.

B.P Griyaghey, J.:— This is an application under section 482 of the Code of Criminal Procedure (in short ‘the Code’) by the accused persons of Mohania P.S Case No. 1(10)71 to quash the order dated 6.10.1980 passed by the Additional Chief Judicial. Magistrate, Bhabhua, in that case by which order the Magistrate, after having discharged the petitioners on accepting the Final Report submitted by the Police in the case, subsequently on a protest-petition by the First Informant and after enquiry under section 202 of the Code on that protest-petition, took cognizance against the petitioners in the case under sections 307, 436 etc. of the Indian Penal Code (in short ‘the Penal Code’) by the impugned order.

2. Shorn of unnecessary details, the relevant fact, relevant for the purpose of this application, is that on an First Information Report lodged by one Suchit Ahir at Mohania Police Station, a case bearing Mohania P.S Case No. 1(10)71 was instituted under section 307 and other sections of the Penal Code and the Arms Act. Subsequently, after completion of the investigation, the police submitted Final Form dated 2.1.1973 stating case maliciously false. It appears that for a long time no order could be passed in the case on the Final Form which was submitted by the police as the record of the case appears to have been sent to the High Court. It may be mentioned that at that time, as the new Code of Criminal Procedure had not come into force, the case began to be adjourned from date to date for a long time awaiting the records back from the High Court. It appears that the First Informant claimed that during that period he had filed a protest petition against the Final Form Report submitted by the Police. It appears that subsequently, it was detected that some records of the case were misplaced, and, therefore, it appears from order dated ??? that when it was noticed by the Sessions Judge, it was ordered by him that the lost records be re-constructed and the matter be disposed of. In pursuance of that order, it appears that the Magistrate again began to dispose of the matter pending in the case. Then by order dated 29.4.1980 the Final Form Report was accepted by the Magistrate, and by the same order the Magistrate also directed for hearing on the protest-petition of the First Informant, which was ultimately treated as a protest-complaint. Then on 5.6.1980 the protest-complainant was examined on solemn affirmation and the case was posted for enquiry under section 202 of the Code. Then the complainant was asked to produce witnesses for that enquiry. Some witnesses were examined by the complainant and then, ultimately, on 6.10.1980, the Magistrate passed the impugned order taking cognizance in the case against the petitioners under sections 307, 436 and several other sections of the Penal Code. It is against that order that the present application has been filed by accused persons of the case. The learned counsel for the petitioners has contended three points against the legality of the impugned order taking cognizance against them. I would take up those points on by-one. The first point taken by the learne counsel is that the Final Form in the police case on the same facts having once been accepted, the Magistrate thereafter could not subsequently take cognizance in the case on the protest-complaint. But this contention of the learned counsel is not correct in view of the definite provisions of law in this respect contained in Sub-section (3) of section 210 of the Code. In this section provision has been made that when there are two cases, one on the police report and the other on a complaint on the same facts pending before the Magistrate, sub-section (2) provides that in such a case if cognizance is taken on the police report, then the complaint case will also merge into it and the case will proceed. Sub-section (3) of section 210 of the Code contemplates a situation that when the Magistrate decides not to proceed with the police case and does not take cognizance in the police case, in that situation sub-section (3) provides as follows:—

“If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.”

3. This sub-section provides that in such a case the Magistrate can proceed with the complaint case in spite of the fact that the Magistrate on earlier occasion on the same facts did not take cognizance in the police case. Besides that, there are a large number of decisions of the Supreme Court, for example Chandradeo Singh v. Prakash Chandra Bose @ Chabi Bose (A.I.R 1963 S.C 1430), Tula Ramand v. Kishore Singh ((1977) 4 SCC 459 : A.I.R 1977 S.C 2401) Pramatha Nath Talukdar v. Saroj Ranjan Sankar (A.I.R 1962 S.C 876) and Bindeshwari Prasad Singh v. Kali Singh. ((1977) 1 SCC 57 : A.I.R 1977 S.C 2432) in support of this view.

4. The second point contended by the learned counsel is that in the present case the Magistrate has contravened the provisions of Proviso to sub-section (2) of section 202 of the Code, which runs as follows:—

“In an enquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is, triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.”

5. It is contended by the learned counsel for the petitioners that in a case like the present one in which offence complained is triable exclusively by the Court of Sessions, it was incumbent upon the Magistrate to examine all the witnesses of the complainant in the enquiry under section 202 of the Code. It is submitted by the learned counsel that only two witnesses were examined in this case and all the witnesses of the complaint-petition were not examined by the Magistrate. It is contended that it is incumbent that all the witnesses must be examined, and non-compliance of the same would make the order taking cognizance on such enquiry as illegal. In support of his argument, the learned counsel has cited a decision in the case of Sri Jayram R. Ranjan God v. The State of Bihar reported in 1980 B.B.C.J 265 in which the learned Single Judge of this Court observed that the Magistrate must examine all the witnesses before the process is issued in such a case and that the non-compliance of the provision renders the order issuing process and all subsequent orders illegal. But it will be noticed that in this decision itself at has been held by the learned Judge, that if in a case the complainant chooses not to examine all the witnesses, though so called upon by the Magistrate, the examination of the witnesses as offered by the complainant would be sufficient compliance of this provision of law. In the present case, by referring to order dated 10.6.1980 I find that the Magistrate had passed an order directing the complainant to produce his witnesses. It is no doubt true that in that order the word “all” has not been mentioned, but it will be meant so, because the direction is to produce the witnesses. Such an interpretation was put by their Lordships in a Bench decision of this Court in Criminal Miscellaneous No. 4195 of 1978 (disposed of on 20th March’ 80). It was so interpreted in this decision also that if under such circumstances the complainant chose to examine only some of the witnesses, it would not be considered a case of non-compliance of the provisions contained in that sub-section (2) and the Proviso quoted above.

6. Besides that, the above quoted provision of the proviso to sub-section (2) cannot be said to be of such mandatory in nature as to render the non-compliance of the same to vitiate the jurisdiction of the Magistrate taking cognizance after such an enquiry. Plain reading of this Proviso to sub-section (2) is that in such a case, which is exclusively triable by a court of sessions, the Magistrate shall permit the complainant to produce all his witnesses and examine them, during the enquiry under section 202 of the Code. This appears to be only a permissive nature of the provision, not mandatory in nature. The learned Judge in the case of Jayram R. Ranjan God v. The State of Bihar (supra) expressed an opinion that this provision is mandatory in nature due to the fact that the accused will be prejudiced at the trial if there would be no evidence of the prosecution witness taken during the enquiry or investigation before the trial had commenced because an accused would be taken to surprise if the witnesses are produced for the first time during the trial in the Sessions court. But similar point was answered by the learned Judges in a division Bench decision of this Court in Cr. Misc. No. 4195/78 (supra) by stating that this provision of section 202 of the Code relates to the procedure when in a complaint-case an enquiry under section 202 of the Code has been started, but there can be a complaint-case relating to an offence exclusively triable by a court of sessions, in which cognizance may be taken simply on the statement of the complainant on solemn affirmation, without holding an enquiry under section 202 of the Code. In that event, there Cannot be such statements of the witnesses of the prosecution before the trial in the sessions court beings. On this argument it was held by their lordships in that Division Bench case (Cr. Misc. 4195/78) (supra) that cognizance can be taken in such a case even without the evidence of the prosecution witnesses taken before the trial commences in the sessions court end, therefore, this provision contained in the Proviso to sub-section (2) of section 202 of the Code cannot be said to be mandatory in nature.

7. That apart this provision of law contained in that Proviso was complied with in the present case. The contention of the learned counsel that the non-compliance of the provision would render the order taking cognizance in the present case as illegal, cannot be acceptable.

8. The third ground taken by the learned counsel for the petitioners to quash the order taking cognizance is that this occurrence relates to the year 1971, and that, therefore, the proceeding should not be allowed to continue. In this connection learned counsel has relied on a decision in the case of State of U.P v. Kapildeo Shukla reported in (1972) 3 SCC 504 : A.I.R 1973 S.C 494 in which the Supreme Court refused to interfere with the order of the High Court quashing the proceeding of a case on the ground that the trial had protracted for twenty years. The present case is not of that nature. That case related to the offences under sections 408 and 477A of the Penal Code. In the present case, the cognizance has been taken by order dated 6.10.1980 The delay in this respect in taking cognizance was mainly on account of the fact that the records of the case had been lost, which was reconstructed. In this connection, reference of the case of R.P Kapur v. State Of Punjab. reported in A.I.R 1960 S.C 866 has been made in which police was negligent in not submitting its report under section 173 Cr. P.C for several months and a prayer was made to quash the proceeding on that account. The High Court refused that prayer which refusal was supported by the Supreme Court. The present case is a case under sections 307 and 436 and other sections of the Penal Code which are very serious in nature. It was no fault on the part of the complainant that the Magistrate could take cognizance in this case in October, 1980. That was mainly upon the fact that the records were lost. Therefore, in the circumstances of the case, I do not think that it is a fit case in which the proceeding should be quashed on account of that delay in concluding the proceeding. In the result, I do not find any merit in any of the grounds taken by the petitioners' counsel.

9. The application is therefore, dismissed.

Bhagwat Pandey And 10 Others v. The State Of Bihar Opposite Party.

Judicial Opinion Summary — B.P. Griyaghey, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (as recorded)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Implications

Bhagwat Pandey And 10 Others v. The State Of Bihar Opposite Party.

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