JASRAJ CHOPRA, J. - (1.) S. B. Criminal Revision Petition No. 321 of 1987 and S. B. Criminal Misc. Petition No. 95 of 1987 involve a common question and, therefore, I propose to decide them by a common order.
(2.) IN both these cases, F. Rs. were submitted by the Police after investigation and the learned trial court took cognizance against the accused-persons regarding certain offences which were prima-faciely made out against them. IN S. B. Criminal Revision Petition No. 321 of 1987, the cognizance was taken against the accused-petitioners under ss. 147, 148, 323 and 325/149 IPC whereas in S. B. Criminal Misc. Petition No. 95 of 1987, the cognizance was taken against the accused-petitioner under ss. 426 and 379 IPC. Mr. B. S. Rathore, the learned counsel appearing for the accused-petitioners has raised only one contention before me that in these cases, the cognizance could not have been taken by the learned lower court without giving a notice to the acebsed-petitioners and without affording them an opportunity of hearing as to whether the report under s. 169 Cr. P. C. should be accepted or not and if cognizance has to be taken, for which particular offence that has to be taken against the aceused-petitioners. In this respect, he placed reliance on a decision of this Court in Hardeosingh Sandhu V. State of Rajasthan (1), wherein a learned single Judge of this Court observed that if the complainant is heard' on his protest petition against the acceptance of the final report and if the Magistrate feels that cognizance should be taken against certain persons, it is in the interest of justice that they may also be heard, and they can only be heard if a notice is given to them. Hardeosingh Sandhu's case (supra) was followed by me in Jagdish V. State (2), wherein I accepted the revision and quashed the order of the learned Munsif & Judicial Magistrate, Sirohi dated May 15, 1986 and remanded the case back to him with this direction that if he proposes to take cognizance against the accused-persons, he must give them a notice and afford them an opportunity of hearing but the hearing is to be confined to the point as to whether the report under s. 169 Cr. P. C. is to be accepted or not and if cognizance has to be taken then under what offences and no further. . .- , Mr. S. K. Mathur, learned Public Prosecutor appearing for the State and Mr. J. M. Bhandari, the learned counsel for the complainant in Criminal Revision No. 321 of 1987 have submitted that the aforesaid decisions are against the law and they are also against the decisions of their lordships of the Supreme Court In this respect, they have referred to a decision of their lordships of the Supreme Court in Chandra Deo V. Prakash Chandra (3), wherein it was observed: - "the entire scheme of Ch. XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued. This does not mean that he is piecluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the prosecution nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can be examined any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. No doubt, one of the objects behind the provisions of s. 202, Cr. P. C. is to enable the Magistrate to scrutinise care fully 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 book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence, the accused, may have can only be enquired into at the trial. An enquiry under s. 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. " It was further observed by their lordships of the Supreme Court as follows: - "since the object of an enquiry under s. 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under s. 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under s. 202, or statements made in an investigation under that section, as the case may be. ' He is not entitled to rely upon any material besides this. Where, there is prima facie evidence, even though an accused may have a defence that the offence is committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. "where the Magistrate has ordered an enquiry under s. 202 by another Magistrate it is not open to him to consider the statements recorded during investigation by the Police or the evidence adduced before him during the enquiry arising out of another complaint. If the Magistrate has based his decision in dismissing the complaint on such extraneous matter, the proceedings would be vitiated. " They further referred to a decision of their lordships of the Supreme Court in Smt. Magawwa V. Veeranna Shivlingappa Konjalgi (4), wherein while determining the scope of an enquiry under ss. 200 and 202 Cr. P. C, it was observed: - "the scope of the inquiry under s. 202 of the Code of Criminal Procedure is extremely limited-limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one. In proceedings under s. 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. (AIR 1963 SC-1430 relied on ). " It was further observed as under: "however the Magistrate in such proceedings can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of determination between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion, it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. "
(3.) IN the following cases, an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Whether the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where (the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach" a conclusion 'that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are sholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of complaint by legally competent authority and the like. " I need not go into these illustrations because this point has not been raised before me as to in which circumstance, the process issued under s. 204 Cr. P. C. should be quashed. Learned counsel appearing for the non-petitioners further referred to a decision of the Punjab & Haryana High Court in Budhi Prakash Yadav v. K. C. Sharma (5) wherein it has been held that the accused cannot participate in the proceedings before the process is issued against him. All these authorities relate to the enquiries which are conducted under ss. 200 and 202 Cr. P. C. Learned counsel appearing for the non-petitioners submitted these authorities which relate to Chapter XV & XVI of the Cr. P. C. fully apply to the investigations conducted by the Police Officer under Chapter XII, read with Chapter XIV, Cr. P. C. I am not impressed by this argument of the lear-ned counsel for the non-petitioners. An enquiry, conducted under ss. 200 and 202 Cr. P. C. , after taking cognizance by a Magistrate on a complaint specifically prohibits the participation of the accused in the enquiry. He has no right to be heard. He cannot adduce evidence and he cannot participate in the trial. According to the aforesaid authorities quoted supra, he can only watch proceedings and keep himself informed about it. In a case where the complaint lodged with the Police is investigated by the Police Officer under ss. 156 (1) suo-moto in a cognizable case or 156 (3) Cr. P. C. under the orders of the Court, in the enquiry or investigation that is conducted by the Police, the accused is fully involved in investigation. He can be interrogated or arrested. On the basis of his confessional statement, certain recoveries can be made. If he confesses his guilt, he can be forwarded to the Magistrate for recording his confession. If necessary, he can be set up as an approver with the approval of the Court. The investigation that is made by the Police Officer is, not confined to the persons who are named in the complaint. The Investigating Officer can investigate and interrogate those persons who are not named by the complainant. He can examine the independent witnesses. He can even verify the facts which are disclosed by the complaint, say for example, if the offence relates to the possession of a particular field and in the complaint, the complainant alleges that he is in possession of the field, the Investigating Officer can verify this fact from the Patwari whether the complainant is actually in possession of the field and whether the accused-persons have been aggressive or they acted in their right of private defence of person. Thus, the scope of investigations conducted by the Police is totally different from the enquiry which is undertaken by the Court under ss. 200 and 202 Cr. P. C. I, therefore, felt while relying on Hardeosingh Sandhu's case (supra) in Jagdish V. State (supra) that if the accused faces a particular investigation in which he can be arrested and detained and if in that investigation, ultimately the Police finds that no case is made out against him then if the complainant can be heard before the acceptance of the Final Report, the accused has also a right to be heard. If the Final Report is submitted by the Police under s. 173 Cr. P. C. in which the Investigating Officer reaches to the conclusion that no offence has been commenced by the accused then if the accused is in custody, he should be released forthwith on his executing a bond under s. 169 Cr. P. C. and thus, the person who has been in custody throughout the investigation and who has been released only when the Investigating Officer reached to the conclusion that no offence is made out against him, according to me, has a right to be heard if that conclusion is sought to be rejected by the Magistrate and, therefore, it was under these circumstances while relying on Hardeosingh Sandhu's case (supra), I have held in Jagdish Vs. State (supra) that if the learned Magistrate proposes to take cognizance on the basis of the Final Report submitted by the Investigating agency, the accused should also be provided an opportunity of being heard as to whether on the basis of the evidence that has been collected during investigation, cognizance against him should taken or should not be taken. The accused cannot be allowed to lead evidence but on the basis of the material That is on record, he has a right to point out to the Court that no case is made out against him and so no cognizance should be taken against him. I, therefore, feel that these authorities do not come in the way to that conclusion, which I have arrived at in Jagdish's case (supra ). ;