What is meant by the expression "sufficient ground to proceed" for the purpose of Section 204, Cr. P.C. is not difficult to ascertain. From one angle this expression means existence of a prima facie case, provided that Judge believes the allegations to be true. In view of Section 3 of the Evidence Act, the Judge either must believe in the existence of a fact or he must come to conclusion that he considers its existence so probable that a prudent man ought, under the circumstances of the case act on the supposition that it exists, before he holds the fact to be "proved." It has also been observed in some cases that object of inquiry under Sections 200 and 202 of the Criminal Procedure Code is to find out the truth of the allegations made by the complainant and the Court is not precluded from conducting the inquiry to ascertain if the allegations made before it are true. The expression "prima facie case" should therefore be understood as referring to facts and this expression cannot be so interpreted as to. include false allegation. The object of inquiry under Sections 200 and 202 of the Criminal Procedure Code, though limited has an important purpose to serve. Its object is to find out whether the allegations are true so that the false complaints may be thrown away under Section 203 and the allegations which the Judge believes to be true may be entertained for the purpose of proceeding under Section 204 of the Criminal Procedure Code. The complainant is therefore under a legal obligation to convince the Court conducting an inquiry under Sections 200 and 202 of the Criminal Procedure Code that, the allegations made by him are true and that the complaint is bona fide in the sense that the dominent object, of the complaint is to get the real offenders punished.
10. Viewed in above light the crucial question is; whether the complainant during an inquiry under Sections 200 and 202 of the Criminal Procedure Code is under a legal obligation to examine all the material witnesses as has been observed by the learned Additional Chief Judicial Magistrate No. 3 and the learned Special Judge (S.C./S.T. Cases) or he may at his discretion examine some of the eye-witnesses to support the allegations made by him. The learned Additional Chief Judicial Magistrate and the learned Special Judge (S.C./S.T. Cases) have expressed the view that complainant's son Pramil and complainant's wife and daughters, who were present in the house and were eye-witnesses as well as victims should have been examined in Court and since, they have not been examined, the allegations relating to their ill-treatment cannot be believed. Examination of material witnesses before the Court conducting inquiry and trial is ordinarily expected from the parties on whom the burden to prove the fact lies and the reason behind this expectation is that if the material witnesses are withheld, the party on whom the burden to prove the fact lies may not have any evidence to prove the same. Another principle governing the production of evidence is "the best evidence rule," laying down that the party on whom the burden to prove the fact lies, must produce the best evidence available to it. Therefore, if, in a given case, the testimony of a material witness may be described as the best evidence in the case, the Courts may insist that such best evidence must be produced. If for any reason production of the best evidence is not possible. The only remedy would be to produce next best evidence and in these cases, if the party produces next best evidence, the Court has to take such next best evidence in consideration and find out whether the alleged fact has or has not been proved. The learned Additional Chief Judicial Magistrate and the learned Special Judge (S.C./S.T. Cases) have not referred to any rule or law which may require the examination of the victims in the Court in all cases, nor they have discussed the best evidence rule and the provisions relating to drawing of adverse inferences under Section 114(g) of the Evidence Act. In the instant case, Pramil son of the complainant, complainant's wife and complainant's daughters have not been examined during the inquiry under Sections 200 and 202 of the Criminal Procedure Code, but three other witnesses. Sunil PW-4, Salim PW-5 and PW-6 have been examined. The learned Additional Chief Judicial Magistrate and the learned Special Judge (S.C./S.T. Cases) have not assigned any reason for discarding the evidence of PW-4, PW-5 and PW-6. They have not paid any attention to the provisions of Section 165 of the Evidence Act, which gives ample authority to the Court to examine any witness at any stage for the purpose of ascertaining the truth. It may be pointed out that testimony of a reliable witness does not become unreliable, because one or more witnesses have been withheld. Withholding of witnesses may lead to adverse inference provided the Court having regard to all the facts and circumstances of the case deems it fit to draw an adverse inference and the adverse inference which can be drawn under Section 144(g) of the Evidence Act is not that the whole prosecution case is false. The adverse inference which can be drawn under Section 114(g) is to the effect that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. There is a long gap between drawing of adverse inference under Section 114(g) of the Evidence Act on account of non-production of some evidence and the discarding of the testimony of witnesses who are reliable. This is why, if reliable witnesses, are examined before the Court or there is unimpeachable evidence or there is over-whelming circumstantial evidence to prove a fact, the case cannot be thrown away on the ground that one or more witnesses have been withheld. All these aspects relating to appreciation of evidence have not been attended to by the lower Courts in this case.
Rajasthan High Court
Chiman Lal vs Datar Singh And Ors. on 11 March, 1997
Equivalent citations: 1998 CriLJ 267, 1997 (1) WLN 396
1. Heard the learned counsel for the petitioner and the learned counsel for the non-Petitioners Nos. 1 to 5.2. This petition under Section 482 of the Criminal Procedure Code is directed against the order dated 8th August, 94, passed by learned Additional Chief Judicial Magistrate No. 3 Jodhpur in Sessions Case No. 7/94 and the order passed on 5th June, 95 by the learned Additional Sessions. Judge (Special Judge, S.C./S.T. Cases) Jodhpur in Criminal Revision No. 21/95.
3. The learned Additional Chief Judicial Magistrate by his order dated 8th August, 1994 dismissed the complaint filed by the petitioner under Section 203 of the Criminal Procedure Code and the learned Special Judge (S.C./S.T. Cases) by his order dated 5th June, 1995 dismissed the revision petition filed by the petitioner against the order of the learned Additional Chief Judicial Magistrate No. 3, Jodhpur.
4. At the very outset it would be proper to point out that the proviso given below Section 398 of the Criminal Procedure Code, notice to opposite party is necessary only in those cases in which the non-petitioner is discharged. In case of complaints dismissed under Section 203 or 204(4) of the Criminal Procedure Code, the Court does not pass any order of discharge. Only an order of dismissal of the complaint is passed under both the provisions. Therefore, the proviso given below Section 398 of the Criminal Procedure Code does not appear to be applicable to the cases in which complaint has been dismissed under Section 203 or Sub-section (4) of Section 204 of the Criminal Procedure Code. However, under Section 482 of the Criminal Procedure Code, the Court has ample jurisdiction to issue notice to the non-applicants and the non-applicants have put in appearance through their counsel in this case. Therefore, the learned counsel for the non-applicants has been heard.
5. The grievance of the petitioner is that his complaint was dismissed by the learned Additional Chief Judicial Magistrate No. 3 Jodhpur in spite of the fact that there was sufficient evidence on record to proceed against the accused-non-petitioners for the offences alleged to have been committed by them and the dismissal of the Criminal Revision Petition by the learned Special Judge (S.C./S.T. Cases) was not justified in view of the aforesaid fact. The learned counsel for the non-petitioners has submitted that this petition under Section 482 of the Criminal Procedure Code is not maintainable because in the disguise of this petition, the petitioner is in fact invoking the revisional jurisdiction of this Court under Section 397 of the Criminal Procedure Code and a second revision on the same facts is not maintainable under Section 397(3) of the Criminal Procedure Code. Another submission of the learned counsel for the non-petitioners is that the non-petitioners were Police Officers and non-petitioner No. 1 Datar Singh, who was posted as Assistant Sub Inspector of Police at Police Station. Sardarpura, Jodhpur was directed to execute a non-bailable warrant of arrest issued against Sunil Kumar, and therefore, in discharge of his official functions as Police Officer, he went to the house of Sunil Kumar with non-petitioners Nos. 2 to 5 and the inmates of the family of Sunil Kumar resisted in executing the warrant of arrest, and therefore, the non-petitioner No. 1 has not committed any offence and all the allegations which have been levelled against them by the petitioner are false and have not been supported by necessary evidence. It is further submitted by the learned counsel for the non-petitioners that the dismissal of the complaint by the learned Additional Chief Judicial Magistrate No. 3, Jodhpur and the dismissal of the Criminal Revision Petition by the learned Special Judge (S.C./S.T. Cases) was justified because the complaint withheld material witnesses, and therefore, adverse inference was rightly drawn against the petitioner for non-production of material witnesses.
6. I have carefully considered the rival arguments and perused the record of the Court of Special Judge (S.C./S.T. Cases). The allegations contained in the complaint have been summarised in the judgment of both the lower Courts. It was therefore, not necessary to call for the record of the complaint case. According to complaint, on 27th June, 1994 at about 6-7 p.m. when the complainant Chimanlal was sitting at his shop, four persons illegally entered his house. At that time complainant's wife, three daughters and his sons Pramil and Sunil were present inside the house. Sunil was in the bathroom. Four persons who entered the house, broke the gate of bath-room, abused the inmates of the house and inflicted injuries on them with Danda and Sunil was forcibly taken out of the bath-room when he had no clothes on his body except an underwear and the wife of the complainant and Sunil were forcibly taken to Police Station, Sardarpura in a Van. On the basis of the complaint, cognizance appears to have been taken by the learned Magistrate and during the inquiry conducted under Sections 200 and 202 of the Criminal Procedure Code, six witnesses, namely Chiman Lal PW-1, Anil Kumar PW-2, Shobharam PW-3, Sunil Kumar PW-4, Salim Mohammed PW-5 and Yasin Khan PW-6 were examined on oath. Out of these six witnesses Chiman Lal PW-1, Anil Kumar PW-2 and Shobharam PW-3 as stated by counsel for the petiti6ner not the eyewitness of the occurrence, but Sunil Kumar PW-4 Salil Mohammed PW-5 and Yasin Khan PW-6 are the eyewitnesses of the alleged occurrence.
7. Both the Courts have adopted the reasoning that the allegations of ill treatment meted out to the wife and daughters of the complainant must have been substantiated by examination of the wife and the daughters of the complainant and since they were not examined, therefore, the allegations have not been substantiated. It was also observed by the learned Special Judge (S.C./ S.T. Cases) that Pramil, who was present at the time of occurrence was not examined during the inquiry conducted by the Additional Chief Judicial Magistrate.
8. In view of the provisions contained in Sections 190 and 204 of the Criminal Procedure Code, it is obvious that cognizance is taken of the offences and not of the offenders and whereas cognizance is taken under Section 190 of the Criminal Procedure Code, the judicial inquiry for the purpose of finding out, who the offenders are, is conducted by the Court under Sections 200 and 202 of the Criminal Procedure Code. After the conclusion of the inquiry conducted under Sections 200 and 202 of the Criminal Procedure Code, if the Court comes to the conclusion that there is no ground to proceed against any person the complaint may be dismissed under Section 203 on the other hand, if sufficient grounds to proceed against any person are established by evidence produced under Sections 200 and 200 of the Criminal Procedure Code, the Court has to issue process under Section 204 subject to the condition that there is no legal bar to the issue of process. The stage of taking cognizance under Section 190 of the Criminal Procedure Code in complaint cases is before commencement of inquiry under Section 200 of the Criminal Procedure Code. Cases in which a Magistrate has taken cognizance of the offence under Section 190(1) (A) of the Criminal Procedure Code and conducted the inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is no second occasion for taking cognizance of the offence. Therefore, refusal to issue process under Section 204 of the Criminal Procedure Code cannot be described as refusal to take cognizance of the offence, because, cognizance of the offence is taken before the commencement of inquiry under Section 202. The learned Additional Chief Judicial Magistrate has therefore, mis-directed himself by erroneously assuming that after the conduct of inquiry under Sections 200 and 202 of the Criminal Procedure Code, he was required to decide whether he should or should not take cognizance of the offence. In this case, it must be said that he had taken cognizance of the offences alleged by the petitioner in the complaint before he commenced the inquiry under Sections 200 and 202 of the Criminal Procedure Code and alter the conclusion of inquiry, what the learned Additional Chief Judicial Magistrate had to decide was this whether to proceed under Section 204 against any person or dismiss the complaint under Section 203 of the Criminal Procedure Code. Since, the learned Additional Chief Judicial Magistrate mis-directed himself, he did not pay any attention to the provisions of Section 204 of the Criminal Procedure Code, which requires that before against any person is proceeded, there should be sufficient ground to proceed against him. The reasons for arriving at that conclusion are of vital importance for the whole Society. Wrong reasons or an improper reason or incompletely described reasons for arriving at a conclusion cause more damage to the Cause of "Rule of law" than wrong conclusion because the reasons constitute a precedent which is of permanent service to the whole society. Since, the learned Additional Chief Judicial Magistrate has not directed his attention to the provisions of Section 204 of the Criminal Procedure Code and the same mistake appears to have been repeated during the hearing of the Criminal Revision Petition, it is necessary for this Court to see whether the petitioner has established sufficient grounds to proceed within the meaning of Section 204 of the Criminal Procedure Code.
9. What is meant by the expression "sufficient ground to proceed" for the purpose of Section 204, Cr. P.C. is not difficult to ascertain. From one angle this expression means existence of a prima facie case, provided that Judge believes the allegations to be true. In view of Section 3 of the Evidence Act, the Judge either must believe in the existence of a fact or he must come to conclusion that he considers its existence so probable that a prudent man ought, under the circumstances of the case act on the supposition that it exists, before he holds the fact to be "proved." It has also been observed in some cases that object of inquiry under Sections 200 and 202 of the Criminal Procedure Code is to find out the truth of the allegations made by the complainant and the Court is not precluded from conducting the inquiry to ascertain if the allegations made before it are true. The expression "prima facie case" should therefore be understood as referring to facts and this expression cannot be so interpreted as to. include false allegation. The object of inquiry under Sections 200 and 202 of the Criminal Procedure Code, though limited has an important purpose to serve. Its object is to find out whether the allegations are true so that the false complaints may be thrown away under Section 203 and the allegations which the Judge believes to be true may be entertained for the purpose of proceeding under Section 204 of the Criminal Procedure Code. The complainant is therefore under a legal obligation to convince the Court conducting an inquiry under Sections 200 and 202 of the Criminal Procedure Code that, the allegations made by him are true and that the complaint is bona fide in the sense that the dominent object, of the complaint is to get the real offenders punished.
10. Viewed in above light the crucial question is; whether the complainant during an inquiry under Sections 200 and 202 of the Criminal Procedure Code is under a legal obligation to examine all the material witnesses as has been observed by the learned Additional Chief Judicial Magistrate No. 3 and the learned Special Judge (S.C./S.T. Cases) or he may at his discretion examine some of the eye-witnesses to support the allegations made by him. The learned Additional Chief Judicial Magistrate and the learned Special Judge (S.C./S.T. Cases) have expressed the view that complainant's son Pramil and complainant's wife and daughters, who were present in the house and were eye-witnesses as well as victims should have been examined in Court and since, they have not been examined, the allegations relating to their ill-treatment cannot be believed. Examination of material witnesses before the Court conducting inquiry and trial is ordinarily expected from the parties on whom the burden to prove the fact lies and the reason behind this expectation is that if the material witnesses are withheld, the party on whom the burden to prove the fact lies may not have any evidence to prove the same. Another principle governing the production of evidence is "the best evidence rule," laying down that the party on whom the burden to prove the fact lies, must produce the best evidence available to it. Therefore, if, in a given case, the testimony of a material witness may be described as the best evidence in the case, the Courts may insist that such best evidence must be produced. If for any reason production of the best evidence is not possible. The only remedy would be to produce next best evidence and in these cases, if the party produces next best evidence, the Court has to take such next best evidence in consideration and find out whether the alleged fact has or has not been proved. The learned Additional Chief Judicial Magistrate and the learned Special Judge (S.C./S.T. Cases) have not referred to any rule or law which may require the examination of the victims in the Court in all cases, nor they have discussed the best evidence rule and the provisions relating to drawing of adverse inferences under Section 114(g) of the Evidence Act. In the instant case, Pramil son of the complainant, complainant's wife and complainant's daughters have not been examined during the inquiry under Sections 200 and 202 of the Criminal Procedure Code, but three other witnesses. Sunil PW-4, Salim PW-5 and PW-6 have been examined. The learned Additional Chief Judicial Magistrate and the learned Special Judge (S.C./S.T. Cases) have not assigned any reason for discarding the evidence of PW-4, PW-5 and PW-6. They have not paid any attention to the provisions of Section 165 of the Evidence Act, which gives ample authority to the Court to examine any witness at any stage for the purpose of ascertaining the truth. It may be pointed out that testimony of a reliable witness does not become unreliable, because one or more witnesses have been withheld. Withholding of witnesses may lead to adverse inference provided the Court having regard to all the facts and circumstances of the case deems it fit to draw an adverse inference and the adverse inference which can be drawn under Section 144(g) of the Evidence Act is not that the whole prosecution case is false. The adverse inference which can be drawn under Section 114(g) is to the effect that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. There is a long gap between drawing of adverse inference under Section 114(g) of the Evidence Act on account of non-production of some evidence and the discarding of the testimony of witnesses who are reliable. This is why, if reliable witnesses, are examined before the Court or there is unimpeachable evidence or there is over-whelming circumstantial evidence to prove a fact, the case cannot be thrown away on the ground that one or more witnesses have been withheld. All these aspects relating to appreciation of evidence have not been attended to by the lower Courts in this case.
11. For the reasons mentioned above, it appears that the learned Additional Chief Judicial Magistrate No. 3. Jodhpurand the learned Special Judge (S.C./S.T. Cases), who decided the revision petition, have failed to exercise the powers of properly appreciating the evidence according to law and on this count alone this petition under Section 482 of the Criminal Procedure Code deserves to be allowed and the proper course in this case would be to quash and set aside the impugned orders and direct the learned Additional Chief Judicial Magistrate No. 3 to conduct further inquiry under Section 202 of the Criminal Procedure Code keeping in view the "best evidence" rule," which is one of the most important rules relating to production of evidence. It appears necessary in the interest of justice that the complainant should be given an opportunity to examine such other eyewitnesses of the occurrence as he can produce in Court.
12. The submission made by the learned counsel for the non-petitioners deserves some attention. His submission is that non-petitioner No. 1 Datar Singh was directed to execute the warrant of arrest issued against Sunil Kumar, and therefore, he was under a legal obligation to make every effort to execute the warrant of arrest and his action was bona fide and legal and docs not amount to any offence and in fact that these were the inmates of the house who resisted in executing the warrant of arrest when he went with the warrant of arrest to his house and a case had been registered against them in the first Information Report filed by Datar Singh and the challan has also been filed against them, and therefore, it would be unjust to allow the complainant to proceed with his complaint.
13. I have carefully considered the submission made by the learned counsel for the non-petitioners. It is true that there is a zerox copy of the warrant of arrest issued against Sunil Kumar and there is an endorsement on that warrant directing that the warrant shall be executed by Datar Singh. It may therefore, be conceded that Datar Singh, non-petitioner No. 1 was under a legal duty to execute the warrant of arrest and the non-petitioners Nos. 2 to 5 who accompanied him cannot be said to have gone with Datar Singh with any unlawful object. However, the report given on the back of the warrant of arrest shows that Sunil was arrested from the house and in the circumstances of the case, it appears that Sunil was inside the house when the non-petitioners went to arrest him. Section 47 of the Criminal Procedure Code applies to all those cases where the person to be arrested has entered into or is within any place particularly a house. Section 47 reads as under:-
47. Search of place entered by person sought to be arrested - (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in or being in charge of such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
(2) If ingress to such place cannot be obtained under Sub-section (1) it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search herein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand duly made, he cannot otherwise obtain admittance.
Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.
(3) Any police officer or other person authorised to make an arrest may break open any outer or inner or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.
14. The provisions of Sub-section (2) of Section 47 are very important. Sub-section (2) makes it obligatory on the part of the Officer who executes the warrant of arrest or makes attempt to arrest, to notify his authority and purpose and demand admittance into the house or in that place in which search is to be made for the purpose of effecting the arrest. The proviso given below Sub-section (2) of Section 47 makes it clear that if the apartment is in the actual occupancy of a female, who according to custom, does not appear in public such person or police officer, shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.
15. It is well known that houses or other apartments which are not public properties and are not open to public need protections from the trespass, which may be committed by others. In recent legislations like N.D.P.S. Act require, if a search is to be conducted of a house or other enclosed place then the Officer conducting search has to record the information as well as the reasons for not obtaining the warrant for search and if search is conducted after sun-set and before sun-rise, the reasons as well as the information recorded by the Officer, is required to be sent to his immediate superior and if this is not done, the whole proceeding becomes vitiated. Section 47 of the Criminal Procedure Code has tried to achieve a happy balance between the necessity of effecting arrest of the offenders by conferring on the police officers and other persons empowered to arrest, the authority to enter the houses and other places, where the person to be arrested has taken refuge or is residing and the necessity of protecting the dignity lives, personal liberty and properties of the people, lest they may be invaded by persons possessing the authority to arrest, at any hours of day or night without paying any heed to decency, propriety, dignity etc. Sub-section (2) of Section 47 of the Criminal Procedure Code required four things:
1. That the officer intending to arrest will notify his authority;
2. That such person or officer will notify his purpose;
3. That such person or officer will demand admittance in accordance with Sub-section (1);
4. If the house is inhabited by female other than one, who is to be arrested such person or officer shall before entering such apartment give notice to such female that she is at liberty to withdraw and it is further obligatory to afford her any reasonable opportunity of withdrawing.
16. Above four things must be observed before any force is used by the person or officer desiring to make arrest of a person, who has entered in a house or apartment or is residing therein. The object of Section 47 being to protect the lives, liberties, dignity of all the people of the country, it is necessary that persons and officers, whose authority to effect arrest is limited and subject to the conditions imposed by law must strictly abide by the safeguards enumerated in Section 47 of the Criminal Procedure Code. If these safeguards are violated, may be, the search conducted by them or the arrest made by them may not be called illegal, but if for non-compliance of the provisions of Section 47 of the Criminal Procedure Code any resistance is offered or those whose lives, liberties and privacy is disturbed by the action of the person or officer by entering the house, then in each case, the Court will have to consider whether the resistance offered and the action taken by the inmates of the house was or was not in accordance with law and whether the action of the police officers was or was not justified in view of the non-compliance of Section 47 of the Criminal Procedure Code. In the instant case for want of sufficient material, it is difficult to say whether the non-petitioners have complied with the provisions of Section 47 of the Criminal Procedure Code or they did not comply with the same. It will be open to parties to lead such evidence as may be available to them before the Court at appropriate stage.
17. For the reasons mentioned above, the petition is partly allowed. The impugned orders passed by the learned Additional Chief Judicial Magistrate and learned Special Judge (S.C./ S.T. Cases) are hereby set aside and quashed and the learned Additional Chief Judicial Magistrate No. 3 is directed to conduct further inquiry under Section 202 of the Criminal Procedure Code for the purpose of finding out if there are sufficient grounds to proceed against the non-petitioners. The complainant shall be given an opportunity to examine such eyewitnesses as he may be advised to during the inquiry conducted by the lower Court.
No comments:
Post a Comment