Bharat Modi Vs. State of Jharkhand and anr. - Court Judgment

Excerpt:
criminal procedure code, 1973, sections 192(1), 202 and 204 - penal code, 1860, sections 406, 408, 409, 467, 471 and 120-b--offence under--complaint case--transfer of case by chief judicial magistrate to judicial magistrate for enquiry and disposal under law--judicial magistrate dismissed complaint--complainant failed to produce any evidence--revision against allowed, matter remanded--hence present revision--plea--petitioner not made party in revision--accused persons having no right to be heard before process is issued--held--order impugned allowing revision without hearing accused justified--revision dismissed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - the learned transferee magistrate by order dated 19.08.2004 dismissed the complaint holding that the complainant was to prove by documentary evidence, regarding financial control over the said institutions and it transpires to him from the judicial records that the complainant failed to produce even a single document in support of his case.orderamareshwar sahay, j.1. heard the learned counsel for the parties.2. the petitioner was made an accused in complaint case no. 352 of 2004 which was filed by opposite party no. 2 shivnath choubey before the chief judicial magistrate, dhanbad alleging the commission of the offence by the petitioner under sections 406, 409, 467, 408 and 471/120-b of the indian penal code.3. in the complaint petition it was alleged that the accused bharat modi, who was the principal and incharge of dav high school, dav + 2 high school, dav + 2 kanya high school and dav mahila college at katrasgarh and he was having financial control over the said institutions. it was further alleged that the accused bharat modi misapporpirated lakhs of rupees of the said institutions by committing forgery.4. on receipt of the complaint petition, the learned chief judicial magistrate, under the provisions of section 192(1), cr pc transferred the complaint to the court of sri r.k. singh, judicial magistrate for enquiry and disposal in accordance with law. it appears that during enquiry under section 202, cr pc five witnesses were examined. the learned transferee magistrate by order dated 19.08.2004 dismissed the complaint holding that the complainant was to prove by documentary evidence, regarding financial control over the said institutions and it transpires to him from the judicial records that the complainant failed to produce even a single document in support of his case. it was further held by the learned magistrate that the complainant filed enquiry report of sita ram khaitan against the accused but he did not examine the said sita ram khaitan, who submitted the said enquiry report.5. the order of the learned magistrate dismissing the complaint was challenged by the complainant in revision before the sessions judge, dhanbad. the revision petition was heard by ixth additional sessions judge, dhanbad, who by his order dated 7.3.2005 allowed the revision application, set aside the order of the judicial magistrate dismissing the complaint and remanded the matter back to the magistrate dismissing to pass a fresh order in accordance with law. the said order of the revisional court is under challenge in this application.6. from the impugned revisional order passed by the additional sessions judge, it appears that he held that the magistrate was wrong in expecting the complainant to prove his case beyond all reasonable doubt for the purpose of issuing processes under section 204, cr pc. it was further held by him that when the petition was made over by the chief judicial magistrate to the transferee magistrate, under section 192(1), cr pc then the enquiring magistrate had no option but to proceed under section 204, cr pc and at that stage it was only to be seen as to whether prima facie case for issuance of process was made out against the accused or not. it was further held by the revislonal court that finding of the magistrate that it was necessary for the complainant to examine enquiring officer or to produce document in support of his case, was improper or incorrect.7. the grievance of the petitioner is that he was not made party in the criminal revision application and without hearing him the revision application was allowed. the order of the judicial magistrate dismissing the complaint was wrongly set aside in his absence. it is further submitted on behalf of the petitioner that the learned additional sessions judge has gravely erred in allowing the revision application and by setting aside the order of the magistrate dismissing the complaint. as a matter of fact the transferee magistrate after fully discussing the materials on record, which were produced by the complainant during enquiry under section 202, cr pc, dismissed the complaint and there was no illegality in it.8. on the other hand the learned counsel appearing for the complaint/opposite party no. 2 submitted that at the stage of taking cognizance or at the stage of issuance of processes in complaint case, an accused is not authorized under the law to be present before the court and, therefore, even if, the petitioner was not made party in the criminal revision before the sessions judge, there was nothing wrong in it as at that stage he had no say in the matter. in order to find out as the whether any prima facie case was made out for issuance of processes or not an accused cannot be heard. in support of his submissions the learned counsel for the opposite party has relied on a decision in the case of chandra deo singh v. prakash chandra bose alias chabi bose and anr. reported in : [1964]1scr639 and the decision of panta high court in the case of dr. kumar kishore mandal and anr. v. shri kamal deva thicker and 3 ors. reported in 1986 pljr 21.9. in the case of chandra deo singh (supra) the supreme court has held that the entire scheme of chapter xvi of the code of criminal procedure is that an accused person does not come into the picture at all till the process is issued. he has no right to take part in the proceeding nor has the magistrate any jurisdiction to permit him to do so.one of the objects behind the provisions of section 202, cr pc is to enable the magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. but there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. it is the bounden duty of the magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to boik a person or persons against whom grave allegations are made. permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provisions permitting an accused person to take part in an enquiry.10. patna high court in the case of dr. kumar kishore mandal (supra) has held that the revision petition for further enquiry can be disposed of by the revisional court exports without issuing notice to the accused in case of dismissal of complaint under section 203, cr pc since accused has no locus stand to appear at the enquiry under section 202, cr pc.11. relying on the decision referred to above, i hold that the law did not require to make the petitioner as a party in the revision application nor there was any requirement under the law to issue notice and to hear the petitioner by the sessions judge while disposing of the revision, application because at the stage of enquiry under section 204, cr pc to find out sufficient grounds for proceeding against the accused and for issuance of processes the presence or notice to the accused is not required at all.12. in view of the discussions and findings above, i find not illegality in the impugned order. accordingly, this revision application is dismissed.

Judgment:
ORDER

Amareshwar Sahay, J.

1. Heard the learned counsel for the parties.

2. The petitioner was made an accused in complaint case No. 352 of 2004 which was filed by opposite party No. 2 Shivnath Choubey before the Chief Judicial Magistrate, Dhanbad alleging the commission of the offence by the petitioner under Sections 406, 409, 467, 408 and 471/120-B of the Indian Penal Code.

3. In the complaint petition it was alleged that the accused Bharat Modi, who was the Principal and Incharge of DAV High School, DAV + 2 High School, DAV + 2 Kanya High School and DAV Mahila College at Katrasgarh and he was having financial control over the said Institutions. It was further alleged that the accused Bharat Modi misapporpirated lakhs of rupees of the said Institutions by committing forgery.

4. On receipt of the complaint petition, the learned Chief Judicial Magistrate, under the provisions of Section 192(1), Cr PC transferred the complaint to the Court of Sri R.K. Singh, Judicial Magistrate for enquiry and disposal in accordance with law. It appears that during enquiry under Section 202, Cr PC five witnesses were examined. The learned transferee Magistrate by order dated 19.08.2004 dismissed the complaint holding that the complainant was to prove by documentary evidence, regarding financial control over the said Institutions and it transpires to him from the judicial records that the complainant failed to produce even a single document in support of his case. It was further held by the learned Magistrate that the complainant filed enquiry report of Sita Ram Khaitan against the accused but he did not examine the said Sita Ram Khaitan, who submitted the said enquiry report.

5. The order of the learned Magistrate dismissing the complaint was challenged by the complainant in revision before the Sessions Judge, Dhanbad. The revision petition was heard by IXth Additional Sessions Judge, Dhanbad, who by his order dated 7.3.2005 allowed the revision application, set aside the order of the Judicial Magistrate dismissing the complaint and remanded the matter back to the Magistrate dismissing to pass a fresh order in accordance with law. The said order of the revisional Court is under challenge in this application.

6. From the impugned revisional order passed by the Additional Sessions Judge, it appears that he held that the Magistrate was wrong in expecting the complainant to prove his case beyond all reasonable doubt for the purpose of issuing processes under Section 204, Cr PC. It was further held by him that when the petition was made over by the Chief Judicial Magistrate to the transferee Magistrate, under Section 192(1), Cr PC then the enquiring Magistrate had no option but to proceed under Section 204, Cr PC and at that stage it was only to be seen as to whether prima facie case for issuance of process was made out against the accused or not. It was further held by the revislonal Court that finding of the Magistrate that it was necessary for the complainant to examine Enquiring Officer or to produce document in support of his case, was Improper or Incorrect.

7. The grievance of the petitioner is that he was not made party in the criminal revision application and without hearing him the revision application was allowed. The order of the Judicial Magistrate dismissing the complaint was wrongly set aside in his absence. It is further submitted on behalf of the petitioner that the learned Additional Sessions Judge has gravely erred in allowing the revision application and by setting aside the order of the Magistrate dismissing the complaint. As a matter of fact the transferee Magistrate after fully discussing the materials on record, which were produced by the complainant during enquiry under Section 202, Cr PC, dismissed the complaint and there was no illegality in it.

8. On the other hand the learned counsel appearing for the complaint/opposite party No. 2 submitted that at the stage of taking cognizance or at the stage of issuance of processes in complaint case, an accused is not authorized under the law to be present before the Court and, therefore, even if, the petitioner was not made party in the criminal revision before the Sessions Judge, there was nothing wrong in it as at that stage he had no say in the matter. In order to find out as the whether any prima facie case was made out for issuance of processes or not an accused cannot be heard. In support of his submissions the learned counsel for the opposite party has relied on a decision in the case of Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose and Anr. reported in : [1964]1SCR639 and the decision of Panta High Court in the case of Dr. Kumar Kishore Mandal and Anr. v. Shri Kamal Deva Thicker and 3 Ors. reported in 1986 PLJR 21.

9. In the case of Chandra Deo Singh (supra) the Supreme Court has held that the entire scheme of Chapter XVI of the Code of Criminal Procedure is that an accused person does not come into the picture at all till the process is issued. He has no right to take part in the proceeding nor has the Magistrate any jurisdiction to permit him to do so.

One of the objects behind the provisions of Section 202, Cr PC is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to boik a person or persons against whom grave allegations are made. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provisions permitting an accused person to take part in an enquiry.

10. Patna High Court in the case of Dr. Kumar Kishore Mandal (Supra) has held that the revision petition for further enquiry can be disposed of by the revisional Court exports without issuing notice to the accused in case of dismissal of complaint under Section 203, Cr PC since accused has no locus stand to appear at the enquiry under Section 202, Cr PC.

11. Relying on the decision referred to above, I hold that the law did not require to make the petitioner as a party in the revision application nor there was any requirement under the law to issue notice and to hear the petitioner by the Sessions Judge while disposing of the revision, application because at the stage of enquiry under Section 204, Cr PC to find out sufficient grounds for proceeding against the accused and for issuance of processes the presence or notice to the accused is not required at all.

12. In view of the discussions and findings above, I find not illegality in the impugned order. Accordingly, this revision application is dismissed.