Judgment:
N.N. Singh, J.
1. This criminal revision application is directed against the order, dated 10th May, 1985 passed by Shri S.K. Bhartiya, Judicial Magistrate, 1st Class, Arrah, in Case No. 1129 (C)/83, by which the complaint petition filed by the petitioner against the opposite parties, second parties was dismissed.
2. The brief history of the case giving rise to this criminal revision application is that the petitioner as a complainant filed a complaint petition on 29.11.83, in the Court of the Chief Judicial Magistrate, Arrah, against opposite parties--second parties alleging that in the night of 28.11.83, the petitioner woke up on the sound of breaking of door and in the flash of the torch light he identified the members of the opposite parties-second parties, who entered into his house and committed dacoity and that when on alarm raised by the petitioner and members of his family, the villagers assembled there whereupon the dacoits started fleeing away with looted articles and one of them Keshwar Rai was apprehended on his darwaza with his country-made pistol by the villagers who assaulted him badly, as a result of which he died. It was further claimed that the dacoits fired their guns also and looted away property worth Rs. 50,000/-. It was further claimed that an information to that effect was given by this petitioner to the police whereupon police party arrived and seized the dead body, who inclusion with the accused persons did not register a case of the complainant and arrested the complainant himself. It was also mentioned therein that about two months ago the informant's nephew, Jogendra Rai, was murdered and some of members of opposite parties--second parties, who were accused, had been released on bail and, thereafter, they were threatened the complainant, regarding which one Station Diary Entry was made in Koilwar Police Station on 24.11.83.
3. The Chief Judicial Magistrate, after examining the complainant on solemn affirmation, transferred the case under Section 192 of the Criminal Procedure Code to the Court of Shri S.K. Bhartiya, Judicial Magistrate, 1st Class, Arrah, where the complainant examined three witnesses, namely, P.W. 1 Basant Singh, P.W. 2, Etroja Devi, and P.W. 3, Satyendra Ram. On 30th November, 1984, a petition was filed on behalf of the complainant that he has not examined any other witness and thereafter, the argument was heard and the impugned order was passed.
4. The petitioner challenged the impugned order on the ground that the magistrate has only to see whether a prima facie case had been made out or nor and that he had not to weight the evidence adduced in the inquiry and that he could dismiss the complaint petition only in case when the complaint did not disclose any offence or that the complaint was patently absurd, inherently improbable or it suffered from some legal defects. According to the petitioner, as none of the conditions were present, the learned Magistrate should not have dismissed the complaint under Section 203 of the Criminal Procedure Code.
5. We have heard Shri Ajay Kumar Thakur, learned advocate for the petitioner and the Additional Public Prosecutor, Shri Lala Kailash Bihari Prasad. From perusal of the complaint petition, it is quite clear that the allegation made therein is under Section 395 of the Indian Penal Code, which is exclusively triable by a Court of Session. Thus, the inquiry before the Judicial Magistrate was under Section 202(2) proviso of the Criminal Procedure Code, which provided that 'if it appears to the magistrate that the offence complained of is triable exclusively by a Court of Session, he shall call upon the complainant to produce his witnesses and examine them on oath'. In the complaint petition, names of only five witnesses were cited as witness and it was also mentioned that names of other witnesses would be supplied subsequently but it appears that only three of them were examined in aforesaid inquiry and a petition was filed on 30.11.84 that the complainant has not to examine any further witness meaning thereby that in absence of any commitment inquiry, the complainant would depend upon the evidence of his three witnesses only in the sessions trial if the commitment was made.
6. I am conscious of the legal position that in such inquiry under Section 202(2) proviso or under Section 202 of the Criminal Procedure Code, the Court had only to see whether there was sufficient evidence making out a case which should be proceeded with and it is not intended to take the place of a trial. But, it does not mean that examination of some witnesses only would make out case if their evidence is prima facie self contradictory. Observation of Supreme Court made in Pepsi Foods Ltd. and Ors. v. Special Judicial Magistrate and Ors. reported in : 1998CriLJ1 (paragraph 28) is very relevant:
28 : Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is the silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elict answers to find out the truthfulness of the allegations or otherwise and then examine, if any, offence is prima facie committed by all or any of the accused.
7. Though it is claimed in the complaint petition that a sanaha entry was made in Koilwar police station on 24.11.83 but no such sanaha entry has been brought on record or called for. In complaint petition, the complainant had asserted that he had informed the police whereupon the police arrived and in collusion of accused persons did not register his case and arrested him, but in his examination on solemn affirmation, the complainant had stated that he had himself gone to the police station and the Sub Inspector of police came to the place of occurrence and arrested him but in his cross-examination by the Court, he stated that he was arrested by the Sub-Inspector of Police in the police station itself and that he had given a written information regarding the occurrence to the Sub Inspector of Police. It further appears from the perusal of the complaint petition that though it was claimed that list of looted articles given below the space was left blank and in the statement neither the complainant nor any witness gave details of any looted property. From the perusal of the complaint and the examination of solemn affirmation, the complainant stated that on hearing the sound of breaking the door, he woke up and in the light of torch he identified the accused persons. This means that he was sleeping outside the house but in last line of his statement, he stated that he could not see how Keshwar was killed as they were inside the house out of fear. The complainant further claimed that he got the complaint petition drafted on 28.11.83 and put his signature also noting the date 28.11.83 but on the complaint petition his signature was dated 29.11.83. It was not claimed by him before the Chief Judicial Magistrate on 28.11.83 when he was produced thereunder arrest, regarding his illegal arrest.
8. P.W. 1, Basant Singh, did not disclose as to how he was at the place of occurrence. He did not name the villagers who had arrived there nor he gave the details of the looted articles. Similarly, P.W. 2, Etrajo Devi, also did not gave description of looted articles though she is wife of the complainant. P.W. 3, Satyendra Rai, named only seven accused persons as dacaits and did not even say that others unknown were also there. He also did not give any description of the looted articles. In his cross-examination, he stated that the witnesses did not give any statement before the Sub-Inspector of Police. The learned Magistrate holding the inquiry in his impugned order has mentioned that normally when a person is killed by a mob his head is not chopped off as was done in the case of Keshwar Rai. In fact, though the complainant knew about the death of Keshwar Rai he made him also an accused and subsequently by order, dated 5.3.87, in the High Court he got his name expunged. The learned Judicial Magistrate rightly doubted the correctness of the allegation made in the complaint petition and their statements recorded in course of inquiry under Section 202(2) proviso of the Criminal Procedure Code. 9. On the basis of discussion, made above, I find no merit in this revision warranting interference of this Court and, accordingly, this criminal revision application is dismissed.
S.K. Chattapadhyaya, J.
9. I agree