The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the Magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report.
Section 209 says: “When a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit the case to the Court of Session”. If the Committing Magistrate thinks that it is not necessary of commit the adduced who may be on bail to custody, he may not cancel the bail. This has been made clear by the words “subject to the provisions of this Code relating to bail” occurring in clause (b) of Section 209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled. Section 227 of the Code of 1973 has made another beneficent provision to save the accused from prolonged harassment which is necessary concomitant of a protracted trial. This Section provides that if upon considering the record of the case, the documents submitted with it and the submissions of the accused and the prosecution, the Judge is not convinced that there is sufficient ground for proceeding against the accused, he has to discharge the accused under this Section and record his reasons for so doing.
11. Although the reasons given by the Magistrate for rejecting the evidence produced by the complainant in the preliminary inquiry against Suraj Bhan in regard to the accusation that he had shot dead Banta Singh, are not devoid of merit, yet, it appears that in meticulously appreciating the evidence the Magistrates had over-stepped the limits of his discretion. In other words, this is not a case where the Magistrate lacked inherent jurisdiction to pass the impugned order. This is only a case where the Magistrate has committed an error amounting to an irregularity, if not a clear illegality, in the exercise of his jurisdiction. But in the facts of this case, the error has not resulted in gross miscarriage of justice.[Kewal Krishan-AIR 1980 SC 1780 : (1980) CriLJ SC 1271 : (1980) Suppl. SCC 499]
At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is “sufficient ground for proceeding” against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial Court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges.
AIR 1980 SC 1780 : (1980) CriLJ SC 1271 : (1980) Suppl. SCC 499
SUPREME COURT OF INDIA
Kewal Krishan Vs Suraj Bhan and another
(Before : R. S. Sarkaria And R. S. Pathak, JJ.)
Special Leave Petn. (Cri.) No. 3450 of 1979. Decided on : 01-08-1980.
Criminal Procedure Code, 1973—Section 218—Counter cases—Procedure for trial—One complaint case and another police case—It is proper that both cases should be tried separately but by the same Court.
Both these cases exclusively triable by the Court of Session, one instituted on a police report under Section 173, Criminal Procedure Code and the other initiated on a criminal complaint, arose out of the same transaction. There was thus a risk of two courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately but by the same Court.
Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective or whether such a case is instituted on a criminal complaint or a police report.
Judgement
Sarkaria, J—The facts giving rise to this Special Leave Petition as alleged by the complainant Kewal Krishan in his complaint filed before the Chief Judicial Magistrate, Sirsa are as follows:
An area of more than 3 acres of agricultural land situated in the revenue estate of Gidderanwali was declared “surplus area” by the Collector of Agrarian Reforms (Sub Divisional Officer, Sirsa) and was allotted to Tehla Ram, Chander-Bhan, Nihal Chand, Lal Chand and Chaman Ram. On May 25, 1979, Ram Saran Kanungo and Ram Nath Patwari accompanied by Chander Bhan, Tehla Ram allottees, Suraj Bhan, a relation of Chanderbhan and their friend Banta Singh deceased went to village Gidderanwali to deliver possession of the land to the allottees, but the possession could not be delivered and the warrant was returned. On May 28, 1979 at 5. p. m. the complainant and his clerk, Charanjit, were going to his fields. When they reached near the sugar-cane filed cultivated by Ranjha Ram, Banta Singh (deceased) and the said Suraj Bhan, armed with rifles, along with Chander Bhan and Tehla Ram allottees appeared there. Chander Bhan and Tehla Ram shouted that the complainant was the same person who had prevented them in taking possession on the previous day and that he should be finished. Thereupon, Banta Singh fired a gun-shot at the complainant but the latter took cover in a water course, and could not be hit by that shot. The complainant then tried to run away, whereupon Surajbhan fired his gun as a result of which the complainant received a gunshot injury in the right leg. Suraj Bhan fired another shot at the complainant but per-change that shot hit and killed Banta Singh. Suraj Bhan, Chanderbhan and Tehla Ram accused then took the dead body of Banta Singh and threw it in the filed of the complainant. They took away Banta Singh’s ‘rifle’, leaving the dead-body there. Niamat Ram and Hans Rao who were loading a cart nearby in the filed witnessed the occurrence. Devki Nandan then took the complainant to the Civil Hospital, Sirsa for treatment on the following morning. The complaint informed the police about the occurrence. He remained in the Hospital till June 13, 1979. The Police, however took no action on his report and on the contrary registered a case against him and others on the false complaint of Tehla Ram. The officials of the Revenue Department also made a false report on the warrant of possession in favour of the accused.
2. In the complaint Kewal Krishan had accused not only Suraj Bhan, Chander Bhan, Tehla Ram of the commission of offences under Sections 302, and 307 Indian Penal Code, etc., but also implicated the Assistant Collector Rajinder Singh, Ram Saran Dass Kanungo and Ram Nath Patwari and alleged that by making false reports they had helped and abetted the criminal acts of the other accused persons. The Magistrate examined the complainant, Kewal Krishan under Sec. 200 Criminal Procedure Code. He also examined the complainant’s witnesses Charanjit, Naimat Ram and Hand Raj under S. 202, Criminal Procedure Code. After concluding the inquiry under Section 202, Criminal Procedure Code, the Magistrate recorded a detailed order, discussed the evidence recorded by him and reached the conclusion that the occurrence had not taken place in the manner alleged by the complainant, and that there was no prima facie case against the accused. He also noted that there was no evidence against the said three Revenue Officers, showing that they had made any false report or abetted any offence committed by the other accused persons. In the result, the Magistrate dismissed the complaint under Section 203, Criminal Procedure Code by his order dated September 29, 1979.
3. The Cross-case was instituted in the Police Station under Sections 302 and 307 read with Sections 34 and 27 of the Indian Arms Act against Kewal Krishan petition herein, and two of his companions, Thakar Dass and Anil Kumar. After investigation, the police challaned Kewal Krishan and his companions in Court for the murder of Banta Singh and causing injuries to his companions, Jinda Ram and Waryam Ram. The Additional Sessions Judge Sirsa, by an elaborate judgment has acquitted Kewal Krishan and his companions with the finding that the evidence of the prosecution witnesses produced in that case “does not inspire confidence” and “the prosecution has miserably failed to prove the charges framed against the accused, beyond reasonable doubt.” In the result he gave benefit of doubt to the accused Kewal Krishan and his companions and acquitted them.
4. Mr. Bhandare, learned counsel for the petitioner, vehemently contends that the Magistrate had far exceeded his jurisdiction in dismissing the complaint under Section 203, Criminal Procedure Code, by recording a positive finding that no prima facie case had been made against any of the accused named thereunder. It is submitted that the Magistrate has elaborately discussed and appraised the evidence as if he were the trial court himself. It is pointed out that these two cross-cases had arisen out of the same transaction, one sponsored by the police and other initiated by the complainant on this complaint. The complainant, Kewal Krishan had also received a gun-shot injury; while on the side of the accused, one Banta Singh, also, received fatal gun-shot injury. In such cases, it is argued, as a matter of sound practice, both the connected case must have been committed to the Court of Session to be tried concurrently (albeit separately) to avoid inconsistent findings. It is further submitted that under Section 202, Criminal Procedure Code, the Magistrate is not required to weigh the evidence meticulously. All that he has to see is whether there are sufficient grounds for proceeding against the accused. It is urged that at this stage if the evidence discloses even a strong suspicion of the commission of an offence by the accused the prudent course to be adopted by the Magistrate is to issue process to the accused. In support of this contention, reference has been made to State of Bihar v. Ramesh Singh, AIR 1977 SC 2018.
5. Learned counsel has further taken us through the provisions of Sections 202, 203 and 227 of the Code of Criminal Procedure, 1973 and pointed out that in a case exclusively triable by the Sessions Judge, these provisions of the new Code abolish commitment proceedings and greatly restrict the scope of the preliminary enquiry under Section 202, even where such a case is initiated on a criminal complaint. It is argued that in the instant case, which was exclusively triable by the Court of Session, the Magistrate has arbitrarily usurped the jurisdiction of the trial Court. It is contended that the Magistrate exceeded his jurisdiction when he put numerous questions to the witnesses himself by way of cross-examination.
6. On the other hand, learned counsel for the respondents, submits that the Magistrate was not supposed to be merely a post office. He could himself make a prima facie appraisal of the statements recorded by him under Sections 200/202, with a view to ascertaining whether or not a prima facie case had been made out against the respondents. It is maintained, the story propounded by the witnesses examined by the Magistrate was inherently improbable and the case was fore-doomed to failure at the trial. In any event – proceeds the argument – no injustice has been caused; which would justify the invocation of the extraordinary powers of this Court under Art. 136 of the Constitution. As against the Revenue Officers, it is pointed out, there was not a shred of evidence and the preliminary inquiry did not disclose any case at all. It is submitted that the part attributed to Suraj Bhan also, particularly, the allegation that he shot dead his friend Banta Singh was manifestly false and patently incredible. It is argued that the allegations in the complaint against all the accused were frivolous and transparently incredible.
7. We had deferred the final hearing of this case because we were told that in the connected case which was pending for trial before the Additional Sessions Judge, Sirsa the judgment was going to be pronounced shortly. A copy of that judgment, which has since been pronounced by the Additional Sessions Judge, has been produced by the counsel for the petitioner for our perusal. Kewal Krishan, Petitioner and his two companions have been acquitted by the trial court in that case. Learned counsel for the petitioner wants to make only a limited use of this judgment. He wants to show that the defence story set up in that case by Kewal Krishan was substantially the same as adumbrated in the complaint filed by him in the instant case. According to the counsel, the acquittal of Kewal Krishan implies that his counter-story was not frivolous, at least against Suraj Bhan accused.
8. So far as the three Revenue Officers, named as co-accused in the complaint are concerned, there was absolutely no ground to proceed against them. Similarly, so far as the accused who were allottees of the land are concerned, the order of the Magistrate dismissing the complaint against them is also unassailable. The only debatable question is:Whether the Magistrate should have summarily dismissed the complaint under Section 203, Criminal Procedure Code against Suraj Bhan accused. The witnesses examined under Sections 200 and 202 in the preliminary inquiry did state that it was Suraj Bhan who had shot dead Banta Singh and had also caused the serious gun-shot injury to Kewal Krishan, complainant. The question as to in what circumstances, Banta Singh received the fatal gun-shot injuries, was in issue in the cross-case also, which was instituted on a police report under Section 173, Criminal Procedure Code against Kewal Krishan and others, and had been committed to the Court of Session for trial. That is to say, the story set up by Kewal Krishan in his complaint in regard to the death of Banta Singh, was likely to be his defence version in the counter-case in which he was being tried for the murder of Banta Singh. In short, both these cases exclusively triable by the Court of Session, one instituted on a police report under Section 173, Criminal Procedure Code and the other initiated on a criminal complaint, arose out of the same transaction. There was thus a risk of two courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately but by the same Court. If any authority is needed, reference may be made to Bannappa; AIR 1944 Bom 146; Judhister; 27 Cal WN 700 and Periaswami, 1937 Mad WN 998.
9. In the instant case, there was prima facie evidence against Suraj Bhan accused which required to be weighed and appreciated by the Court of Session. At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is “sufficient ground for proceeding” against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh’s case (ibid), that even at the stage of framing charges the truth, veracity and effect of the evidence which the complaint produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.
10. The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the Magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. Section 209 says: “When a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit the case to the Court of Session”. If the Committing Magistrate thinks that it is not necessary of commit the adduced who may be on bail to custody, he may not cancel the bail. This has been made clear by the words “subject to the provisions of this Code relating to bail” occurring in clause (b) of Section 209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled. Section 227 of the Code of 1973 has made another beneficent provision to save the accused from prolonged harassment which is necessary concomitant of a protracted trial. This Section provides that if upon considering the record of the case, the documents submitted with it and the submissions of the accused and the prosecution, the Judge is not convinced that there is sufficient ground for proceeding against the accused, he has to discharge the accused under this Section and record his reasons for so doing.
11. Although the reasons given by the Magistrate for rejecting the evidence produced by the complainant in the preliminary inquiry against Suraj Bhan in regard to the accusation that he had shot dead Banta Singh, are not devoid of merit, yet, it appears that in meticulously appreciating the evidence the Magistrates had over-stepped the limits of his discretion. In other words, this is not a case where the Magistrate lacked inherent jurisdiction to pass the impugned order. This is only a case where the Magistrate has committed an error amounting to an irregularity, if not a clear illegality, in the exercise of his jurisdiction. But in the facts of this case, the error has not resulted in gross miscarriage of justice. The complainant’s story that Suraj Bhan aimed and fired a gun-shot towards the complainant, but that shot fatally hit Suraj Bhan’s companion, Banta Singh was extremely improbable. The complainant’s allegation is that Banta Singh armed with a rifle (gun?) came and fired at the complainant; but the complainant escaped being hit as he had laid himself flat in the water-course. The complainant’s story further was that Suraj Bhan armed with a gun was following Banta Singh and was behind him. But all the gunshot injuries were found on the front side in the chest of Banta Singh deceased. Thus, the story of the complainant in regard to the circumstances of the killing of Banta Singh, and his killer, being Suraj Bhan, was inherently implausible and highly doubtful. Equally improbable was the story that thereafter, the respondents dragged the dead body of Banta Singh and threw it in the field of the complainant. In the connected case, in the Court of Session, this very story was set up by the complainant Kewal Krishan in defence to the charge of murdering Banta Singh. In that case, as already observed, Kewal Krishan was acquitted of that murder charge.
12. The question now is whether in the circumstances of this case, where the error committed by the Magistrate has not occasioned a gross failure of justice, this court should interfere with the impugned orders of the Courts below, in the exercise of its discretionary jurisdiction under Article 136 of he Constitution. It must be remembered that where no right of appeal exists, Article 136 does not serve to create such a right and this Court cannot be treated as a general court of review for correcting each and every error of law or fact, in criminal cases. This extraordinary constitutional power reserved to this Court is meant to be invoked in exceptional cases where the error committed by the courts below has occasioned grave and substantial miscarriage of justice.
13. In our opinion, in the instant case, the error committed by the Magistrate has not caused such gross failure of justice which would warrant interference by this Court under Article 136.
14. The petition fails and is dismissed.
