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Sau. Sangita vs The Order Passed By The Learned 2Nd … on 3 August, 2010

Bombay High Court
Sau. Sangita vs The Order Passed By The Learned 2Nd … on 3 August, 2010
Bench: R. M. Borde
                                          1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                        NAGPUR BENCH, NAGPUR




                                                    
                 Criminal Revision Application No.187 of 2006,
                    Criminal Application No.2428 of 2006,
                                    And
                    Criminal Application No.2429 of 2006.




                                                   
                 Criminal Revision Application No.187 of 2006




                                             
    1.   Sau. Sangita w/o Ashok Borawar,
         Aged about 29 years,
                              
         Occ. Household,
                             
         R/o Bramhanwada (Thadi),
         Tahsil - Chandur Bazar,
         District - Amravati.
           


    2.   Ashok s/o Kisanrao Borawar,
        



         Aged about 36 years,
         R/o Bramhanwada (Thadi),
         Tahsil - Chandur Bazar,





         District - Amravati.

    3.   Mahadeo Parose,
         Aged about 26 years,





         R/o Dahegaon (Purna),
         Tahsil - Chandur Bazar,
         District - Amravati.

    4.   Janardhan s/o Bapurao Nanhe,




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         Aged about 40 years,




                                                                      
         R/o Dhanora (Purna),
         Tahsil - Chandur Bazar,




                                              
         District - Amravati.

    5.   Sanjay s/o Bapurao Nanhe,
         Aged about 30 years,




                                             
         R/o Dhanora (Purna),
         Tahsil - Chandur Bazar,
         District - Amravati.




                                             
    6.   Sudhakar s/o Shamrao Nanhe,
                              
         Aged about 43 years,
         R/o Padam Saurabh Colony,
                             
         Shegaon Road,
         Amravati.

    7.   Prabhakar s/o Shamrao Nanhe,
           


         Aged about 37 years,
         R/o Padam Saurabh Colony,
        



         Shegaon Road,
         Amravati.





    8.   Sou. Sunita w/o Sudhakar Nanhe,
         Aged about 33 years,
         R/o Padam Saurabh Colony,
         Shegaon Road,





         Amravati.

    9.   Sou. Vaishali w/o Prabhakar Nanhe,
         Aged about 30 years,




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         R/o Padam Saurabh Colony,




                                                                             
         Shegaon Road,
         Amravati.                                      ... Applicants




                                                     
         Versus

    1.   Sou. Surekha w/o Nandu Borawar,




                                                    
         Aged about 27 years,
         R/o Rohana,
         Police Station Pulgaon,




                                             
         Tahsil - Arvi,
         District - Wardha.   
    2.   The State of Maharashtra.                      ... Non-Applicants
                             
                      Criminal Application No.2428 of 2006

    1.   Namdeo s/o Bapurao Nanhe,
           


         Aged about 48 years.
        



    2.   Sou. Parvati w/o Namdeo Nanhe,
         Aged about 41 years.





    3.   Ratankumar s/o Namdeo Nanhe,
         Aged about 19 years.

    4.   Archana d/o Namdeo Nanhe,





         Aged about 24 years.

    All R/o Khairi (Donoda),
    Tahsil - Achalpur, District - Amravati.             ...             Applicants




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    Versus




                                                     
    1.   Sou. Surekha w/o Nandu Borawar,
         Aged about 27 years,
         R/o Rohana, P.S. Pulgaon,
         Tahsil - Arvi, 




                                                    
         District - Wardha.

    2.   The State of Maharashtra.                      ... Non-Applicants




                                             
                      Criminal Application No.2429 of 2006
                              
    1.   Nandu s/o Narayan Borawar,
                             
         Aged about 29 years.

    2.   Narayan s/o Namdeo Borawar,
         Aged about 59 years.
           
        



    3.   Sou. Kamal w/o Narayan Borawar,
         Aged about 55 years.

    All R/o Jawardi, Post - Paratwada,





    Tahsil - Achalpur, District - Amravati.             ... Applicants

    Versus





    1.   Sou. Surekha w/o Nandu Borawar,
         Aged about 27 years,
         R/o Rohana, P.S. Pulgaon,
         Tahsil - Arvi, District - Wardha.




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    2.   The State of Maharashtra.                                     ... Non-Applicants




                                                                    
    --------------------------------------------------------------------------------------------
    Shri V.M. Deshpande, Advocate for Applicants.
    Shri J.Y. Ghurde, Advocate for Non-Applicant No.1.
    Smt. I.L. Bodade, APP for Non-Applicant No.2.




                                                                   
    --------------------------------------------------------------------------------------------

                                Coram : R.M. Borde, J.

rd
Dated : 3 August, 2010

Oral Judgment :

1. The order passed by the learned 2nd Ad hoc Additional Sessions

Judge, Wardha, in Criminal Revision No.21 of 2006 as well as in companion

revisions, being Criminal Revision No.42 of 2006 and Criminal Revision

No.34 of 2006, is subjected to challenge in these matters. The Revisional

Court, while dismissing the criminal revisions tendered by the accused,

proceeded to allow the revision tendered by the respondent/complainant and

further directed issuance of process against the original accused Nos.8 to 16

for offences punishable under Sections 494 and 109 read with Section

34 of the Indian Penal Code. The learned Trial Magistrate, while dealing

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with the complaint tendered by the respondent/complainant, had earlier

directed issuance of process against original accused Nos.1 to 7 in view of

the order passed on 2-2-2006. The Revisional Court has confirmed the

order passed by the learned Magistrate and in addition thereto, was pleased

to summon the remaining accused arrayed in the complaint.

2.

Criminal Revision No.187 of 2006 is presented by the original

accused Nos.8 to 16 raising exception to the order passed by the Revisional

Court, whereas both the criminal applications, being Criminal Application

No.2428 of 2006 and 2429 of 2006, are presented by the rest of the accused

calling in question the order passed by the learned Magistrate directing

issuance of process against them.

3. The complainant in the complaint tendered by her alleges that the

marriage of the complainant with accused No.1 Nandu was solemnized

on 7-5-1999. However, on account of matrimonial disputes, they started

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residing separate since 1-7-1999. It is alleged that accused No.1 Nandu

entered into wedlock with accused No.2 Archana on 26-3-2001. The

complainant thus alleges that accused Nos.1 and 2 have committed an

offence punishable under Section 494 of the Indian Penal Code, as they

entered into wedlock while the marriage of the complainant with accused

No.1 Nandu was still subsisting. It is further alleged that the other accused

named in the complaint have aided and abetted commission of offence by

accused Nos.1 and 2.

4. On receipt of the complaint, the learned Magistrate was pleased

to record the verification statement of the complainant and issue order

directing police to investigate the matter and submit report in accordance

with the provisions of Section 202 of the Code of Criminal Procedure. The

learned Magistrate had also taken into account the documentary evidence

placed on record by the complainant, which indicates that an issue was born

out of the second wedlock. Thus it is clear that the learned Magistrate was

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satisfied that accused No.1 is residing with accused No.2 and an issue was

born to them out of matrimonial relations. The police officials, on

completion of the enquiry, submitted report on 21-6-2005 along with the

papers of enquiry to the learned Magistrate. The police reported the learned

Magistrate that there is no evidence available to substantiate the case put up

by the complainant in the complaint. On consideration of the report

tendered by the police and on perusal of the papers of investigation, the

learned Magistrate did not concur with the police and directed issuance of

process against accused Nos.1 to 7, calling upon them to answer the charge

levelled by the complainant in respect of commission of offences punishable

under Sections 494 and 109 read with Section 34 of the Indian Penal Code.

5. The order passed by the learned Magistrate on 2-2-2006 was

subjected to challenge before the Revisional Court in three different revision

applications tendered by the accused, so also the complainant challenged

the order passed by the learned Magistrate on the ground of refusal by the

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learned Magistrate to take cognizance of the offence allegedly committed by

accused Nos.8 to 16. The Revisional Court, on consideration of the revision

applications tendered before it, has rendered decision as referred to in the

above paragraphs and the said order passed by the Revisional Court is

subject-matter of challenge in these matters.

6.

I have heard the arguments advanced by the learned counsel

appearing for the parties and perused the orders passed by the learned

Magistrate as well as the Revisional Court. With the assistance of the

learned counsel appearing for the parties, I have also gone through the

record of the case.

7. The learned counsel appearing for the applicants in all these

matters has vehemently contended that in fact there is no material placed on

record by the complainant to proceed against the accused. It is contended

that the material gathered by the police, if considered, so also the allegations

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levelled by the complainant in the complaint, if taken at their face value, do

not make out any case against the accused. It is also contended that the

discretion exercised by the learned Magistrate in directing issuance of

process is arbitrary, as the same is based on either no evidence or on the

material, which is wholly irrelevant. The learned counsel for the applicants

contends that the statements of the witnesses cited by the complainant in the

complaint recorded by the police do not make out any case against the

accused. He pointed out that the complainant has made a reference to the

names of five witnesses and amongst those witnesses, he has invited my

attention to the statements recorded by the police in respect of witnesses

Onkarrao Pachare, Bhanudas Nanhe, Subhash Wankhede and Kisanrao

Solanke, contending that those very witnesses cited by the complainant do

not support the case of the complainant. It is also contended that there is no

evidence in respect of solemnization of marriage at Tirthkshetra Hanuman

Mandir, Amravati. It is thus contended that the material collected by the

police is not sufficient to proceed against the accused, so also on bare

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perusal of the complaint, no case can be said to have been made out against

the accused.

8. Another ground of attack by the learned counsel for the

applicants is non-consideration of the report of the police and failure by the

learned Magistrate to record reasons for her disagreement with the report of

the police while passing the impugned order. It is contended by the learned

counsel for the applicants that although the police have reported that there is

no material available to implicate the accused in the crime, the learned

Magistrate has chosen not to rely upon the police report and proceeded to

direct issuance of process against accused Nos.1 to 7. The learned counsel

for the applicants contended that in such circumstances, it was obligatory for

the learned Magistrate to record reasons for her disagreement with the police

report or at least she should have made a reference to the police report in the

order. It is contended that on perusal of the order passed by the learned

Magistrate, it shows non-application of mind by the learned Magistrate to

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the record of the case and as such the impugned orders passed by the learned

Magistrate as well as the Revisional Court need to be quashed and set aside.

9. The learned counsel appearing for the applicants has placed

reliance on the judgment in the matter of Suhas Balkrishna Desai and others

v. Chandrakant Ramchandra Parab and others, reported in 2001(1) Mh.L.J.

328, and contended that it was incumbent upon the learned Magistrate to

record reasons in respect of her disagreement with the police report. He

contends that the absence of reasons shows non-application of mind by the

learned Magistrate. It is to be noted that the matter before the Court was one

arising out of an enquiry under Section 156(3) of the Code. In the facts and

circumstances of that case, the Court proceeded to observe that it was

desirable for the learned Magistrate to record reasons. The scope of enquiry

under Section 202 of the Code of Criminal Procedure is different than the

one under Section 156(3) of the Code. Even otherwise, there cannot be any

mandate requiring the learned Magistrate to record reasons in respect of his

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disagreement with the police report. It is only in the cases where the learned

Magistrate proceeds to dismiss the complaint by taking recourse to Section

203 of the Code, he is required to record reasons. The reliance placed on the

aforesaid reported decision is misplaced.

Same is the case with the decision rendered in the matter of

Vidya Kuldip Raj Kohil v. State of Maharashtra and another, reported in

2002(2) Mh.L.J. 830, wherein the learned Single Judge has recorded that the

order passed by the learned Magistrate not only suffers from non-application

of mind, but the same appears to have been passed with extraneous

considerations. In the facts and circumstances of that case, the Court felt

need on the part of the learned Magistrate to record reasons in respect of his

disagreement.

10. The learned counsel appearing for the respondent/complainant

while supporting the order passed by the Revisional Court, contended that

there is sufficient material brought on record requiring the learned Trial

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Magistrate to take cognizance of the offence. It is contended that the very

purpose of enquiry under Section 202 of the Code of Criminal Procedure is

to provide aid to the Magistrate in arriving at a decision as to whether the

case is one which may lead to full-length trial. The scope of enquiry under

Section 202 of the Code of Criminal Procedure is quite restricted and it is

always open for the Magistrate to apply his mind to the record of the case

and to adopt a different view. It is not incumbent upon the Magistrate to

accept the report of the police nor law mandates recording of reasons by the

Magistrate in the event of his exhibition of disagreement with the report

tendered by the police. It is sufficient in the facts and circumstances of the

case that reasonable inference could be drawn on perusal of order of

magistrate as regards application of mind to the record by the Magistrate. It

is contended that the learned Magistrate has applied her mind to the record

of the case and has proceeded to issue order summoning accused Nos.1 to 7.

It is contended that reasonableness or sufficiency of the reasons recorded by

the learned Magistrate cannot be a matter of challenge before the Revisional

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Court or the High Court. The learned counsel for the

respondent/complainant contends that it is not open for the superior Courts

to probe in the reasons recorded by the learned Magistrate and to arrive at a

different conclusion. At the stage of issuance of process, the accused have

no role to play and the adequacy of the material available with the

Magistrate for taking cognizance or reasonableness of the reasons recorded

by the Magistrate while summoning the accused cannot be a matter of

scrutiny by the higher Courts, at the instance of the accused.

11. Law prescribes different modes, which are available with the

Magistrate, in respect of proceeding further in the matter on receipt of a

complaint. A Magistrate can order investigation under Section 156(3) of the

Code of Criminal Procedure at a pre-cognizance stage, that is to say, before

taking cognizance under Section 190 of the Code of Criminal Procedure,

and where a Magistrate decides to take cognizance under the provisions of

Chapter XIV of the Code of Criminal Procedure, he is not entitled in law to

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order investigation under Section 156(3) of the Code, though in cases not

falling within the proviso to Section 202 of the Code, he can order an

investigation by the police which would be in the nature of an enquiry as

contemplated by Section 202 of the Code. Where a Magistrate chooses to

take cognizance, he can adopt any of the following alternatives : (a) he can

peruse the complaint and if satisfied that there are sufficient grounds for

proceeding he can straightaway issue process to the accused but before he

does so he must comply with the requirements of Section 200 of the Code

and record the evidence of the complainant or his witness, (b) the Magistrate

can postpone the issue of process and direct an enquiry by himself, or (c) the

Magistrate can postpone the issue of process and direct an enquiry by any

other person or an investigation by the police. In case the Magistrate after

considering the statement of the complainant and the witnesses or as a result

of the investigation and the enquiry ordered is not satisfied that there are

sufficient grounds for proceeding he can dismiss the complaint. Where a

Magistrate orders investigation by the police before taking cognizance under

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Section 156(3) of the Code and receives the report thereupon he can act on

the report and discharge the accused or straightaway issue process against

the accused or apply his mind to the complaint filed before him and take

action under Section 190 of the Code, as described above.

12. This raises a question as to whether taking cognizance by the

Magistrate is within the contemplation of Section 190 of the Code of

Criminal Procedure. As has been analyzed in the decisions rendered by the

Apex Court in several matters, when the Magistrate, on receipt of a

complaint, orders investigation by police taking recourse to Section 156(3)

of the Code in respect of cognizable offences, he does so at a

pre-cognizance stage. The Magistrate, however, on receipt of the complaint

and after applying his mind, can either straightway proceed to record the

verification statement of the complainant and direct issuance of process or

may postpone the issuance of process and direct either investigation by

police or ask the complainant to produce his evidence before him. When the

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Magistrate acts in accordance with the provisions of Section 202 of the

Code, he issues the directions on taking cognizance of the complaint. The

order passed by the Magistrate under Section 202 of the Code either

requiring the complainant to place his evidence before the Court or direct

investigation and report by police is the order at a pre-cognizance stage. It

is appropriate to refer to the decision rendered by the Apex Court in this

regard. In the matter of Devarapalli Lakshminarayana Reddy and others v.

Narayana Reddy and others, reported in AIR 1976 SC 1672, the Apex Court

has observed in para 14 as under :

“14. This raises the incidental question: What is meant by

“taking cognizance of an offence” by the Magistrate within the

contemplation of Section 190? This expression has not been

defined in the Code. But from the scheme of the Code, the

content and marginal heading of Section 190 and the caption of

Chapter XIV under which Sections 190 to 199 occur, it is clear

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that a case can be said to be instituted in a Court only when the

Court takes cognizance of the offences alleged therein. The ways

in which such cognizance can be taken are set out in clauses (a),

(b) and (c) of Section 190(1). Whether the Magistrate has or has

not taken cognizance of the offence will depend on the

circumstances of the particular case including the mode in which

the case is sought to be instituted, and the nature of the

preliminary action, if any, taken by the Magistrate. Broadly

speaking, when on receiving a complaint, the Magistrate applies

his mind for the purposes of proceeding under Section 200 and

the succeeding sections in Chapter XV of the Code of 1973, he is

said to have taken cognizance of the offence within the meaning

of Section 190(1)(a). If, instead of proceeding under Chapter

XV, he, has in the judicial exercise of his discretion, taken action

of some other kind, such as issuing a search warrant for the

purpose of investigation, or ordering investigation by the police

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under Section 156(3), he cannot be said to have taken

cognizance of any offence.”

13. So far as the scope of Section 202 of the Code is concerned,

various High Courts in catena of decisions have examined the significance

of Section 202 of the Code and the Apex Court, while dealing with the

matter of Mohinder Singh v. Mohinder Pal and others, reported in AIR 1992

SC 1894, has observed in para 11 of the judgment as under :

“The scope of enquiry under S. 202 is extremely restricted only

to finding out the truth or otherwise of the allegations made in

the complaint in order to determine whether process should be

issued or not under S. 204 of the Code or whether the complaint

should be dismissed by resorting to S. 203 of the Code on the

footing that there is no sufficient ground for proceeding on the

basis of the statements of the complainant and of his witnesses, if

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any. But the enquiry at that stage does not partake the character

of a full dress trial which can only take place after process is

issued under S. 204 of the Code calling upon the proposed

accused to answer the accusation made against him for adjuding

the guilt or otherwise of the said accused person. Further, the

question whether the evidence is adequate for supporting the

conviction can be determined only at the trial and not at the

stage of the enquiry contemplated under S. 202 of the Code. To

say in other words, during the course of the enquiry under S. 202

of the Code, the Enquiry Officer has to satisfy himself simply on

the evidence adduced by the prosecution whether prima facie

case has been made out so as to put the proposed accused on

regular trial and that no detailed enquiry is called for during the

course of such enquiry. Vide Vadilal Panchal v. Dattatraya

Dulaji Ghadigaonkar, (1961) 1 SCR 1 : (AIR 1960 SC 1113) and

Pramatha Nath Talukdar v. Saroj Ranjan, 1962 Supp (2) SCR

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297 : (AIR 1962 SC 876).”

14. Taking resume of the judgments cited above, it would be quite

clear that the scope of enquiry while taking recourse to Sections 156(3) and

202 of the Code is different and the Magistrate is invested with the power to

deal with both the situations differently. As has been made clear in the

catena of decisions, the scope of enquiry under Section 202 of the Code is

only to ascertain the truth or falsehood made in the complaint on the basis of

the material placed by the complainant before the Court for limited purpose

of finding out whether a prima facie case for issue of process has been made

out. The Magistrate is required to form an opinion without adverting to any

probable defence the accused may have.

15. Turning to the facts of the instant case, though it is contended that

the material placed on record is insufficient to take cognizance of the

offence, this Court while exercising powers under Section 482 of the Code

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has to scrutinize the material bearing in mind the limitations in respect of

causing interference and also the desirability to probe into the material

placed on record at the initial stage of issuance of process. It cannot be

controverted that the accused has no role to play in an enquiry at the stage of

issuance of process. It is matter between the complainant and the Court. So

far as the sufficiency of the material for proceeding with the matter is

concerned, it is for the Magistrate to scrutinize the record and reach the

conclusion. The sufficiency or otherwise of the material placed on record

before the Magistrate while the Magistrate issues order for proceeding with

the complaint and directs issuance of process cannot be a matter of in-depth

scrutiny at the hands of the higher Courts. What is required to be seen is

that on perusal of the complaint and on the basis of the material placed on

record, prima facie without adverting to the probable defence that may be

available to the accused, whether a case is made out for proceeding further.

In the instant matter, although it has been pointed out that the witnesses cited

in the complaint by the complainant do not wholly support her case, the fact

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remains that the complaint itself contains the allegations, which constitute an

offence. On perusal of the record of the Trial Court, it transpires that the

police during the course of investigation have recorded the statements of the

witnesses related to the complainant and they have stated above the factum

of second marriage of accused no.1 with accused No.2. Apart from these

aspects, there are few affidavits filed on record before the Magistrate by

certain witnesses, who have made the grievance in respect of investigation in

the matter. The complaint is made by at least three witnesses, who states

that the police have not recorded the statements according to their versions

and the statements of the witnesses have been recorded so as to shield the

offenders. Taking into consideration all the material, in all probabilities, the

Magistrate decided to proceed against a few accused. As stated above, there

cannot be any in-depth scrutiny of the material collected by the Investigation

Officer, which led the Magistrate to form her opinion in respect of

desirability to proceed further in the matter.

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16. A reference can be made to the judgment of the Apex Court in

the matter of Smt. Nagawwa v. Veeranna Shivlingappa Konjalgi and others,

reported in (1976) 3 SCC 736, wherein the scope of enquiry under

Section 202 of the Code has been considered by the Apex Court. The

relevant observations made in paragraphs 3 and 4 read as under :

“3.

In Chandra Deo Singh v. Prakash Chandra Bose this

Court had after fully considering the matter observed as follows :

The courts have also pointed out in these cases that

what the magistrate has to see is whether there is evidence in

support of the allegations of the complainant and not whether the

evidence is sufficient to warrant a conviction. The learned

Judges in some of these cases have been at pains to observe that

an enquiry under Section 202 is not to be likened to a trial which

can only take place after process is issued, and that there can be

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only one trial. No doubt, as stated in sub-section (1) of Section

202 itself, the object of the enquiry is to ascertain the truth or

falsehood of the complaint, but the magistrate making the

enquiry has to do this only with reference to the intrinsic quality

of the statements made before him at the enquiry which would

naturally mean the complaint itself, the statement on oath made

by the complainant and the statements made before him by

persons examined at the instance of the complainant.

Indicating the scope, ambit of Section 202 of the Code of

Criminal Procedure this Court in Vaddilal Panchal v. Dattatraya

Dulaji Ghadigaonker observed as follows :

Section 202 says that the magistrate may, if he thinks

fit, for reasons to be recorded in writing, postpone the issue of

process for compelling the attendance of the person complained

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against and direct an inquiry for the purpose of ascertaining the

truth or falsehood of the complaint, in other words, the scope of

an inquiry under the section is limited to finding out the truth or

falsehood of the complaint in order to determine the question of

the issue of process. The inquiry is for the purpose of

ascertaining the truth or falsehood of the complaint; that is, for

ascertaining whether there is evidence in support of the

complaint so as to justify the issue of process and commencement

of proceedings against the person concerned. The section does

not say that a regular trial for adjudging the guilt or otherwise of

the person complained against should take place at that stage;

for the person complained against can be legally called upon to

answer the accusation made against him only when a process

has issued and he is put on trial.”

4. It would thus be clear from the two decisions of this

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Court that the scope of the inquiry under Section 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 face 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. In fact it is well settled that in

proceedings under Section 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.

The Apex Court has further laid down the principles in respect of causing

interference by the higher Courts in the matter calling in question orders in

respect of issuance of process. Those are quoted in para 5 of the judgment,

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which read as under :

“(1) where 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 wholly

irrelevant or inadmissible; and

4. where the complaint suffers from fundamental legal

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defects, such as, want of sanction, or absence of a complaint by

legally competent authority and the like.”

17. It is contended by the learned counsel for the applicants that the

material collected by the police and perused by the learned Magistrate as

well as the allegations contained in the complaint taken at their face value

are not sufficient to proceed against the accused. However, as stated above,

I am of the opinion that this is not a case wherein there is absolutely no

material to proceed against the accused. The sufficiency or otherwise of the

material cannot be a matter of enquiry by the Trial Court. In the same

judgment (Smt. Nagawwa v. Veeranna Shivlingappa Konjalgi and others),

referred to above, the Apex Court has observed, “Whether the reasons were

good or bad, sufficient or insufficient, is not a matter which could have been

examined by the High Court in revision”. The principle enunciated by the

Apex Court in the aforesaid judgment equally applies to the decision

rendered by the Revisional Court in these matters. The Revisional Court has

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31

exceeded its jurisdiction in causing interference in the order passed by the

Magistrate by directing issuance of process against accused Nos.8 to 16.

The Magistrate on consideration of the material has formed an opinion that

there is sufficient material to proceed against accused Nos.1 to 7 only. It

was not open for the Revisional Court to probe further and record a contrary

opinion. The order passed by the Revisional Court is in excess of

jurisdiction vested in him. The order passed by the Revisional Court,

therefore, needs to be quashed and set aside.

18. For the reasons set out above, Criminal Revision No.187 of 2006

presented by accused Nos.8 to 16 stands allowed and the order passed by the

Revisional Court on 22-6-2006 is quashed and set aside. Rule is made

absolute accordingly.

Criminal Applications Nos.2428 and 2429 of 2006 stand

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32

dismissed. Rule is discharged in the concerned criminal applications.

Judge.

pdl

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