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PATNA HIGH COURT
Bhuvaneshwar Prasad, J.
Ramesh Chandra
Versus
State Of Bihar
Criminal Miscellaneous No. 9946 of 1983 ;
Decided On : MAY 12, 1988
CRIMINAL PROCEDURE CODE - SECTION 202 - INQUIRY - INVESTIGATION - EXECUTIVE MAGISTRATE - JURISDICTION - INTERPRETATION OF STATUTES - SECTION 3 - CONSTRUCTION OF REFERENCES - MAGISTRATE - JUDICIAL MAGISTRATE - EXECUTIVE MAGISTRATE - INHERENT POWERS OF THE HIGH COURT - SECTION 482 - REVISION - SECTION 397 - BAR OF SUB-SECTION (2) - ABUSE OF PROCESS OF COURT - ENDS OF JUSTICE.
Fact of the Case:
The petitioner challenged the order of the Chief Judicial Magistrate taking cognizance of an offense under Section 379 of the Indian Penal Code against him, alleging that the order was illegal, without jurisdiction, and bad in law. The petitioner argued that the Chief Judicial Magistrate could not direct an Executive Magistrate to hold an inquiry under Section 202 of the Code of Criminal Procedure (CrPC) and that the order was passed in contravention of the mandatory provisions of Section 202(1) of the CrPC.
Finding of the Court:
The court held that the Chief Judicial Magistrate was authorized under Section 202(1) of the CrPC to order an investigation to be made by any other person including an Executive Magistrate and that there was no legal bar to passing of any such order. The court further held that the use of the word "inquiry" in the order instead of "investigation" was an accidental error and that the true import of the order was that the learned Chief Judicial Magistrate had postponed the issue of process and had desired an investigation to be made by the Executive Magistrate.
Issues: 1. Whether the Chief Judicial Magistrate could direct an Executive Magistrate to hold an inquiry under Section 202 of the CrPC? 2. Whether the order of the Chief Judicial Magistrate was passed in contravention of the mandatory provisions of Section 202(1) of the CrPC? 3. Whether the use of the word "inquiry" in the order instead of "investigation" vitiated the entire proceeding?
Ratio Decidendi: 1. The court interpreted Section 202(1) of the CrPC and held that the expression "other than a Magistrate" used in Section 2(h) of the CrPC refers only to a Judicial Magistrate and not to an Executive Magistrate. Therefore, an investigation can be held by an Executive Magistrate but not by a Judicial Magistrate. 2. The court held that the Chief Judicial Magistrate was authorized under Section 202(1) of the CrPC to order an investigation to be made by any other person including an Executive Magistrate and that there was no legal bar to passing of any such order. 3. The court held that the use of the word "inquiry" in the order instead of "investigation" was an accidental error and that the true import of the order was that the learned Chief Judicial Magistrate had postponed the issue of process and had desired an investigation to be made by the Executive Magistrate.
Final Decision: The court dismissed the petitioner's application under Section 482 of the CrPC, holding that there was no merit in the application and that the order of the Chief Judicial Magistrate was valid.
1. This is an application under S.482 of the Code of Criminal Procedure, 1973 (hereinafter called the Code). It is directed against the entire proceedings pending against the petitioner before the Judicial Magistrate, 2nd Class, Muzaffarpur in Case No. C 332/82/ Trial No. 2531 of 1983 including the order dated 4-7-1983 passed by the learned Chief Judicial Magistrate, Muzaffarpur and also the order dated 9-9-1983 passed by the learned Sessions Judge, Muzaffarpur.
2. It appears that opposite party 2, Anup Sah had lodged the first information report before the Sadar Police Station, Muzaffarpur to the effect that he had purchased six bags of wheat weighing five quintals eighty K,G. for Rs. 1008.60 paise and was bringing the same on two tempos. When he reached clear the flour mills south of zero mile at about 1 p.m. the petitioner stopped him and told him that he would not allow the goods to be carried away since the opposite party 2 owed him some money. To this opposite party 2 replied that there was no arrear with him. In spite of this, it is alleged that the petitioner carried away the goods from two tempos. Accordingly, the Sadar P.S. Case No. 14 dated 15-10-1980 under S.379 of the Indian Penal Code was instituted against the petitioner. In this case final report was submitted by the Sadar Police Station against the petitioner which was received by the learned Chief Judicial Magistrate on 8-8-1981. However, opposite party 2 had filed a protest petition which was heard on 7-4-1982. The learned Chief Judicial Magistrate examined opposite party 2 on solemn affirmation and he directed Shri A.K. Singh Kant Executive Magistrate, Muzaffarpur for enquiry under S.202 of the Code. This report under S.202 of the Code along with the statement of the witnesses examined by the learned Executive Magistrate was received by the learned Chief Judicial Magistrate, on the basis of which he found a prima facie case under S.379 of the Penal Code made out against the petitioner. Accordingly, by his order dated 4-7-1983 he took cognizance of the offence against the petitioner under S.379 of the Penal Code and transferred the case to the file of Shri H.L. Singh, Judicial Magistrate, 2nd Class for disposal.
3. Against the aforesaid order dated 4-7-1983 the petitioner preferred a revision application before the learned Sessions Judge, Muzaffarpur who was pleased to reject the same by his order dated 9-9-1983.
4. It has been contended that the order of the learned Chief Judicial Magistrate dated 4-7-1983 taking cognizance of the offence under S.379 of the Penal Code is illegal, without jurisdiction and bad in law. It is in contravention of the express mandatory provision of S.202(1) of the Code as under law the enquiry can be held only by the Chief Judicial Magistrate himself and not by any Judicial Magistrate and not even by the Executive Magistrate. The order dated 9-9-1983 passed by the learned Sessions Judge in Criminal Revision No. 86 of 1983 is also equally bad in law as it has been passed in contravention of the mandatory provisions of S.201(1) of the Code. No offence under S.379 of the Penal Code is made out against the petitioner. The order dated 4-7-1983 passed by the learned Chief Judicial Magistrate taking cognizance of the offence against the petitioner has been passed mechanically without the application of the mind. On these grounds it was contended that the impugned order dated 4-7-1983 passed by the learned Chief Judicial Magistrate, Muzaffarpur as well as order dated 9-9-1983 passed by the learned Sessions Judge, Muzaffarpur be quashed.
5. The only point for decision before me is whether this application is fit to be allowed or not.
6. At the time of the hearing some important questions of law have been raised by Shri Tetarwe, learned counsel appearing on behalf of the petitioner. Since the questions raised by him are of considerable legal importance I would like to deal with them in detail.
7. At the out set Shri Tetarwe, the le
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