JAGANNATH S/O GANPAT GIRHE VS. THE STATE OF MAHARASHTRA
| Citation | 1998 Bom CR Cri |
| Date of Judgment | 18 JULY 1996 |
| Court | BOMBAY HIGH COURT |
| Case Type | CRIMINAL CASE |
| Appellant | JAGANNATH S/O GANPAT GIRHE |
| Respondent | THE STATE OF MAHARASHTRA |
| Bench | M.B. GHODESWAR, J. |
| Referred | SECTIONS – Article 227 of the Constitution of India r/w 482 of the Criminal Procedure Code, 1973.Section 302, 201 r/w 34 of the Indian Penal Code, 1860.202, 203, 204, 208, 210 of the Criminal Procedure Code, 1973.304-Part II, 364, 324 r/w 34, 365, 325, 109, 448, 394, 118, 115 of the Indian Penal Code, 1860. |
FACTS OF THE CASE
The complainant and the mother of the deceased had filed a criminal complaint under sections 302, 304-Part II, 364, 324, 365, 325, 109, 448, 394, 118, 115, 201 which can be r/w 34 of the Indian Penal Code, 1860 against the petitioners. It was alleged that at night the petitioners came in civil dress to the house of the complainant with sticks in their hands. The petitioner accused one of them of coming in front of the house of the complainant and abusing her and thereafter, one hour when he was taking dinner at the house the petitioners took him along with them and assaulted him with the sticks and in an injured condition they took him to the Police Station.
In the morning, the complainant was called by the investigating officer to the Police Station. Thereafter, the police took the complainant to the Hospital where the deceased was lying on the veranda of the hospital. According to the complainant, the deceased was beaten by the petitioners on the false allegation of drinking. Then, the complainant alleged the medical examination of him and found several injuries. The medical examination reveals that he was illegally detained in the lockup for the whole night and was beaten with sticks, belts, etc., due to which he died.
The complainant lodged the report of the incident under section 302 of the Indian Penal Code, 1860 against the accused. The complainant was awaiting a summons from the Court of Sessions but the summons did not come, she enquired at Police Station and found the case which she filed against the accused under section 302 of the Indian Penal Code was not filed. The complainant’s verification statement was recorded and the trial magistrate directed the complainant to examine the eyewitnesses, if any. Thereafter, the complainant examined herself and two more and then handed over their purses. The trial magistrate perused the record filed against the accused persons for the offense under section 324 of the Indian Penal Code, 1860, and heard the arguments of the learned Counsel for the parties.
The order of issue of the process was challenged in this Court by applying section 482 of the Criminal Procedure Code 1973 which was withdrawn with the liberty to apply to the trial Magistrate for recalling the order of issue of process. Then, the petitioners applied to call the order of issue of process. Thereafter, the petitioners applied to recall the summons order by dismissing the complaint before the Trial magistrate. The cause of death was declared by the doctor and then he stated it was due to the drinking of alcohol.
The accused persons were already facing trial under section 324 of the Indian Penal Code, 1870 but there was no sufficient evidence against the accused persons under section 302 of the Indian Penal Code, 1870. On behalf of the complainant, it was submitted that the medical certificate and the post-mortem report were manipulated by the accused and that they have deliberately made fabrications in the Station Diary Register and the documents.
ISSUES
- Whether it was legal to detain a person in the lockup for the whole night and beat them with sticks, belts, etc?
- Whether post-mortem report manipulation causes any kind of punishment under the Criminal Procedure Code, 1973, or the Indian Penal Code, 1860?
ARGUMENTS
The Trial Magistrate has observed that when the complainant lodged the report at the police station, then the police made an investigation and recorded the statements of all the witnesses cited by the complainant in the case and those statements were available to the accused persons during the trial before the Sessions Court. He further observed that prima facie evidence has been brought on record that the accused were responsible for the death of the person. Though the prosecution filed a separate charge sheet under section 324 r/w 302 of the Indian Penal Code, 1860. Further, as per the provisions under section 210 of the Criminal Procedure Code, 1973 the private complaint will be decided together by Sessions Court. Hence on the next date, both cases will be shown in front of the Court of Sessions for trial.
The learned Counsel for the petitioners has submitted that the finding of the Sessions Judge regarding cognizance by the Magistrate was not correct, and as the complainant has not examined all the witnesses, there was non-compliance with the mandatory provisions of section 202 of the Criminal Procedure Code, 1973. The order of issue of process against the petitioners was illegal.
The learned Counsel for the petitioner has relied on the decisions reported in the following cases:-
- Shyamkant Wamanrao Pawar and Ors. v. State of Maharashtra and Ors.
- Shyam Kant and Ors. v. State and Ors.
- Assistant Collector of Customs, Bombay, and Anr.
The learned Counsel for the respondent has relied on the decisions reported in the following cases:-
- Gopal Mahadeorao Asarkar and others v. State of Maharashtra and Ors.
- Sanjay Gandhi v. Union Of India and Ors.
- Kewal Krishan v. Suraj Bhan and Anr.
JUDGEMENT
The learned Magistrate when a complaint of an offense was filed as per his orders then he became authorized to take cognizance or which may postpone the issue of process against the accused, either inquire about the case himself or direct an investigation to be made by a police officer to decide sufficient ground for proceedings to be carry forward.
Section of the Criminal Procedure Code, 1973 was submitted to the Trial Magistrate before the complaint case was filed in respect of the two petitioners where the statements of witnesses recorded by the police under section 161 of the Criminal Procedure Code, 1973. The Trial Magistrate has the option to either inquire into the case himself or appoint an investigating officer for deciding whether there was sufficient ground for proceedings. The Trial Magistrate when the offense was triable by the Court of Session, the complainant should produce all witnesses and examine them on oath.
The submission of the learned Counsel for the applicant was that the Trial Magistrate cannot rely on the statements of witnesses recorded by police which are on. The Trial Magistrate cannot direct investigation by police because no prejudice was caused to the accused as it was observed by the Trial Magistrate and the Sessions Judge, that there was no option left but to record the statements of all the witnesses as wasted in the complaint.
It was necessary that under section 200 r/w 202 of the Criminal Procedure Code, 1973. Section 200 was a general one dealing with the examination of the complainant before taking cognizance. Section 202 deals with the postponement of the issue of the process by the learned Magistrate and ordering the investigation or inquiry for satisfying himself prima facie regarding the truths of the allegations in the complaint. The discretion was conferred upon the Magistrate who can order investigation or inquiry before taking cognizance of the case. But the discretion was again taken away by proviso where the offense complained of before the Magistrate was triable exclusively by the Court of Session and all the witnesses needed to be examined under oath.
The learned Magistrate takes cognizance, he cannot waste the process once he postpones the issue of process. The Magistrate after examining the complainant does not issue the process and postpones the issue of process, in that contingency only the provisions of section 202 of the Code of Criminal Procedure, 1973 can be applied. The commitment without examining all the witnesses was quite legal and proper.
There was a concurrent finding by both courts as there was a prima facie case and there was sufficient material to commit the case. There was a revelation that there was no direct evidence of murder. The statements reveal that the accused persons have assaulted the deceased and taken him to Police Station where he died. Therefore, the statements of witnesses who have seen the assault on the deceased by the petitioner are already on record. Both the courts have held that the statements of witnesses had no prejudice. The purpose of examining all the witnesses was to bring sufficient material on record, as the Trial Magistrate cannot try the matter, to have on record sufficient material to be considered by the Sessions Judge for framing the charge. There was no illegality or error committed. As the result, the instant criminal writ petition was dismissed.
REFERENCES
https://indiankanoon.org/doc/1829334/
WRITTEN BY ABHIPRA AGARWAL INTERN UNDER LEGAL VIDHIYA.
