Dilip Kumar vs Brajraj Shrivastava

2023 INSC 670 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 561 OF 2012

DILIP KUMAR ..... APPELLANT

VERSUS

BRAJRAJ SHRIVASTAVA & ANR. ..... RESPONDENTS

J U D G M E N T

ABHAY S. OKA, J.

1. A complaint under Section 200 of the Code of Criminal

Procedure, 1973 (for short ‘the Cr.P.C.’) was filed by the

first respondent showing the appellant as an accused and

alleging offences punishable under Sections 323, 342, 500,

504, 506, 295-A, 298, 427 of the Indian Penal Code, 1860.

Considering the limited controversy involved in this appeal,

we are not adverting to the allegations made in the

complaint.

2. On 22nd August, 2008, the learned Magistrate passed an Signature Not Verified

order directing holding of an inquiry under sub-Section (1) Digitally signed by NIRMALA NEGI Date: 2023.08.04 10:44:04 IST Reason:

of Section 202 of the Cr.P.C. The order indicates that the

1 Crl. A. No. 561/2012

learned Magistrate intended to himself hold an inquiry.

Thereafter, the learned Magistrate recorded the statement of

only the first respondent/complainant and passed an order

dated 18th September, 2008, dismissing the complaint under

Section 203 of the Cr.P.C. By the impugned order, the High

Court has interfered with the said order on a limited ground.

The High Court was of the view that there was no proper

inquiry made by the learned Magistrate in terms of sub-

Section (1) of Section 202 of the Cr.P.C and therefore, the

High Court remitted the complaint to the learned Magistrate

from the stage of holding an inquiry under sub-Section (1) of

Section 202 of the Cr.P.C.

3. The learned Senior Counsel appearing for the appellant

submitted that it was not mandatory for the learned

Magistrate to record statements of other witnesses. He

submitted that after considering the statement of the first

respondent-complainant and the averments made in the

complaint and other material on record, the learned

Magistrate rightly came to the conclusion that the

allegations in the complaint were mala fide. He placed

reliance on the decision of this Court in the case of

Mohinder Singh vs. Gunwant Singh and Ors.1. He relied upon

what is held by this Court in paragraph 11 thereof. He also

pressed into service another decision of this Court in the

1 (1992) 2 SCC 213

2 Crl. A. No. 561/2012

case of Nagawwa Vs Veeranna Shivalingappa Konjalgi2.

4. We have carefully perused the order dated 18 th

September, 2008 passed by the learned Magistrate and earlier

order of 22nd August, 2008. Under sub-Section (1) of Section

202 of the Cr.P.C., the learned Magistrate has a discretion

either to inquire into the case himself, or to direct a

Police Officer to investigate and submit a report. In this

case, he took recourse to the first option. A perusal of the

complaint shows that eight witnesses were specifically named

in the complaint. The learned Magistrate did not examine any

of them. In the order dated 18th September, 2008, the learned

Magistrate has not recorded reasons for not recording the

statements of other witnesses specifically cited in the

complaint. The law is well settled, which is found to have

been reiterated in the decision in the case of Mohinder Singh

(supra). After taking recourse to sub-Section (1) of Section

202 of the Cr.P.C., before dismissing a complaint by taking

recourse to Section 203 of the Cr.P.C., the learned

Magistrate has to consider the statements of the complainant

and his witnesses. In this case, the learned Magistrate has

not examined the other witnesses. The view taken by this

Court in the case of Nagawwa (supra) is no different.

5. Therefore, we find no error when the High Court came

to the conclusion that the complaint deserves to be remanded

2 (1976) 3 SCC 736

3 Crl. A. No. 561/2012

from the stage of holding an inquiry under sub-Section (1) of

Section 202 of the Cr.P.C.

6. The High Court has made certain observations including

on the issue of absence of sanction under Section 197 of the

Cr.P.C.. As the High Court has remanded the case for holding

an inquiry in terms of sub-Section (1) of Section 202 of the

Cr.P.C., it is obvious that the observations made in the

impugned order, including the observations on requirement of

sanction under Section 197 of the Cr.P.C., will have to be

held as tentative observations, which will have no bearing on

ultimate conclusion to be drawn by the learned Magistrate.

7. Subject to what is observed above, no case for

interference is made out. The appeal is, accordingly,

dismissed.

8. Pending application(s), if any, shall stand disposed of.

..................J. (ABHAY S. OKA)

..................J. (SANJAY KAROL) NEW DELHI;

26th JULY, 2023.

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