Gurpal Singh v. Dharminder Singh & Ors.

his arguments, learned counsel has placed reliance on the decision of this Court in Gurlal Singh Grewal vs. State of Punjab and others 2009 (1) RCR (Criminal) 640, wherein it was held as under:- “21. It has been observed in Rosy's case (supra) that the provision of Section 202, Cr.P.C. is enabling provision for the Magistrate to form an opinion as to whether or not process should be issued and remove from the Magistrate's mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.

22. The statutory discretion vested with the Judicial Magistrate, in the present case, after the entire preliminary evidence had been produced by the petitioner and was open to the Judicial Magistrate to consider the preliminary evidence and to find out in accordance with the settled principle of law whether any prima facie offence appeared to have been committed by the respondents and to summon them. The various principles to weigh the evidence need not be emphasised as it is settled principles of law laid down by the Hon'ble Crl.Rev.No.750 of 2009 (O&M) 3 Supreme Court in various judgments including Kewal Krishan v. Suraj Bhan and another, AIR 1980 SC 1780, to the effect that the standard to be adopted by the Judicial Magistrate in scrutinizing the evidence is not the same as at the stage of framing charges. At the stage of Section 204 Cr.P.C., if there is prima facie evidence in support of the allegations in the complaint, that would be sufficient ground for issuing process to the accused Standard of the said evidence so collected to disclose sufficient grounds for proceeding further is lower than the one to be adopted at the stage of framing charges. It is always open to the Magistrate to weigh the probability and prima facie truthfulness of the evidence produced at the preliminary stage and to form an opinion that no ground exists for proceedings against the accused by passing a speaking order. Wide discretionary power has been conferred under Section 202(1) Cr.P.C. to postpone the issue of process and to either hold an inquiry himself or to direct an investigation to be made by the police officer as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. When a statute gives wide discretionary power to an authority or court to adopt any one of the procedures prescribed under law, it becomes mandatory for the said authority for Crl.Rev.No.750 of 2009 (O&M) 4 recording reasons for exercising the power even if the statute does not expressly enjoin upon the said authority to do so. It goes without saying that the reasonableness of the exercise of discretion can be decided keeping in view the object, which the statute seeks to achieve while granting discretion. The impugned order dated

20.11.2007 (Annexure P-7) shows that the Magistrate has not passed a speaking order giving reasons for exercising the powers of postponement of issue of process. The judicial discretion cannot be guided by expediency. The Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judicial discretion has to be exercised in accordance with law and set of legal principles. The discretion, which encourages illegality or perpetuates illegality cannot be exercised. Order dated

20.11.2007 (Annexure P-7) indicates that the trial Court had considered and heard the complaint on the said date but by a cryptic order without mentioning the reason or without disclosing the hesitations in the Magistrate's mind, the complaint has been sent for inquiry to the SHO without mentioning the scope and parameters of the inquiry, which could clarify the factors, which created doubt in the mind of the Magistrate to arrive at a conclusion whether or not a prima facie case exists for Crl.Rev.No.750 of 2009 (O&M) 5 the issuance of process to the respondents.” Learned counsel for the respondents, on the other hand, has submitted that the Magistrate was competent to seek the report from the police after recording the preliminary evidence led by the complainant in case the Magistrate was not satisfied with the evidence led by the complainant. Amended Section 202 Cr.P.C. reads as under:- “Postponement of issue of process-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session;or (b) where the complaint has not been made by a Court, Crl.Rev.No.750 of 2009 (O&M) 6 unless the complainant an the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry 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 Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant”. In the present case, the Magistrate has recorded the preliminary evidence led by the petitioner. The dispute related to the family and the injuries were shown on the thumb of the injured and the remaining injuries related to complain of pain. In these circumstances, the Magistrate thought it appropriate to invoke the provisions of Section 202 Cr.P.C. and ordered the Station House Officer, Mamdot to investigate the matter and send his report. The Magistrate, has exercised the jurisdiction vested in her and the impugned order cannot be said to be without application of mind or vague and uncertain. In the facts and circumstances of the present case, no ground for interference by this Court is made out. The Crl.Rev.No.750 of 2009 (O&M) 7 judgment relied upon by learned counsel for the petitioner fails to advance the case of the petitioner as it is based on different facts. Accordingly, this petition is dismissed. April 07, 2010 SABINA) JUDGE