{"id":40209,"date":"2010-08-03T00:00:00","date_gmt":"2010-08-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sau-sangita-vs-the-order-passed-by-the-learned-2nd-on-3-august-2010"},"modified":"2018-12-03T17:17:50","modified_gmt":"2018-12-03T11:47:50","slug":"sau-sangita-vs-the-order-passed-by-the-learned-2nd-on-3-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sau-sangita-vs-the-order-passed-by-the-learned-2nd-on-3-august-2010","title":{"rendered":"Sau. Sangita vs The Order Passed By The Learned 2Nd … on 3 August, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sau. Sangita vs The Order Passed By The Learned 2Nd … on 3 August, 2010<\/div>\n
Bench: R. M. Borde<\/div>\n
                                          1\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                             \n                        NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                    \n                 Criminal Revision Application No.187 of 2006,\n                    Criminal Application No.2428 of 2006,\n                                    And\n                    Criminal Application No.2429 of 2006.\n\n\n\n\n                                                   \n                 Criminal Revision Application No.187 of 2006\n\n\n\n\n                                             \n    1.   Sau. Sangita w\/o Ashok Borawar,\n         Aged about 29 years,\n                              \n         Occ. Household,\n                             \n         R\/o Bramhanwada (Thadi),\n         Tahsil - Chandur Bazar,\n         District - Amravati.\n           \n\n\n    2.   Ashok s\/o Kisanrao Borawar,\n        \n\n\n\n         Aged about 36 years,\n         R\/o Bramhanwada (Thadi),\n         Tahsil - Chandur Bazar,\n\n\n\n\n\n         District - Amravati.\n\n    3.   Mahadeo Parose,\n         Aged about 26 years,\n\n\n\n\n\n         R\/o Dahegaon (Purna),\n         Tahsil - Chandur Bazar,\n         District - Amravati.\n\n    4.   Janardhan s\/o Bapurao Nanhe,\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 16:14:09 :::\n                                           2\n\n         Aged about 40 years,\n\n\n\n\n                                                                      \n         R\/o Dhanora (Purna),\n         Tahsil - Chandur Bazar,\n\n\n\n\n                                              \n         District - Amravati.\n\n    5.   Sanjay s\/o Bapurao Nanhe,\n         Aged about 30 years,\n\n\n\n\n                                             \n         R\/o Dhanora (Purna),\n         Tahsil - Chandur Bazar,\n         District - Amravati.\n\n\n\n\n                                             \n    6.   Sudhakar s\/o Shamrao Nanhe,\n                              \n         Aged about 43 years,\n         R\/o Padam Saurabh Colony,\n                             \n         Shegaon Road,\n         Amravati.\n\n    7.   Prabhakar s\/o Shamrao Nanhe,\n           \n\n\n         Aged about 37 years,\n         R\/o Padam Saurabh Colony,\n        \n\n\n\n         Shegaon Road,\n         Amravati.\n\n\n\n\n\n    8.   Sou. Sunita w\/o Sudhakar Nanhe,\n         Aged about 33 years,\n         R\/o Padam Saurabh Colony,\n         Shegaon Road,\n\n\n\n\n\n         Amravati.\n\n    9.   Sou. Vaishali w\/o Prabhakar Nanhe,\n         Aged about 30 years,\n\n\n\n\n                                              ::: Downloaded on - 09\/06\/2013 16:14:09 :::\n                                           3\n\n         R\/o Padam Saurabh Colony,\n\n\n\n\n                                                                             \n         Shegaon Road,\n         Amravati.                                      ... Applicants\n\n\n\n\n                                                     \n         Versus\n\n    1.   Sou. Surekha w\/o Nandu Borawar,\n\n\n\n\n                                                    \n         Aged about 27 years,\n         R\/o Rohana,\n         Police Station Pulgaon,\n\n\n\n\n                                             \n         Tahsil - Arvi,\n         District - Wardha.   \n    2.   The State of Maharashtra.                      ... Non-Applicants\n                             \n                      Criminal Application No.2428 of 2006\n\n    1.   Namdeo s\/o Bapurao Nanhe,\n           \n\n\n         Aged about 48 years.\n        \n\n\n\n    2.   Sou. Parvati w\/o Namdeo Nanhe,\n         Aged about 41 years.\n\n\n\n\n\n    3.   Ratankumar s\/o Namdeo Nanhe,\n         Aged about 19 years.\n\n    4.   Archana d\/o Namdeo Nanhe,\n\n\n\n\n\n         Aged about 24 years.\n\n    All R\/o Khairi (Donoda),\n    Tahsil - Achalpur, District - Amravati.             ...             Applicants\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 16:14:09 :::\n                                           4\n\n\n\n\n                                                                             \n    Versus\n\n\n\n\n                                                     \n    1.   Sou. Surekha w\/o Nandu Borawar,\n         Aged about 27 years,\n         R\/o Rohana, P.S. Pulgaon,\n         Tahsil - Arvi, \n\n\n\n\n                                                    \n         District - Wardha.\n\n    2.   The State of Maharashtra.                      ... Non-Applicants\n\n\n\n\n                                             \n                      Criminal Application No.2429 of 2006\n                              \n    1.   Nandu s\/o Narayan Borawar,\n                             \n         Aged about 29 years.\n\n    2.   Narayan s\/o Namdeo Borawar,\n         Aged about 59 years.\n           \n        \n\n\n\n    3.   Sou. Kamal w\/o Narayan Borawar,\n         Aged about 55 years.\n\n    All R\/o Jawardi, Post - Paratwada,\n\n\n\n\n\n    Tahsil - Achalpur, District - Amravati.             ... Applicants\n\n    Versus\n\n\n\n\n\n    1.   Sou. Surekha w\/o Nandu Borawar,\n         Aged about 27 years,\n         R\/o Rohana, P.S. Pulgaon,\n         Tahsil - Arvi, District - Wardha.\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 16:14:09 :::\n                                                   5\n\n\n\n\n                                                                                            \n    2.   The State of Maharashtra.                                     ... Non-Applicants\n\n\n\n\n                                                                    \n    --------------------------------------------------------------------------------------------\n    Shri V.M. Deshpande, Advocate for Applicants.\n    Shri J.Y. Ghurde, Advocate for Non-Applicant No.1.\n    Smt. I.L. Bodade, APP for Non-Applicant No.2.\n\n\n\n\n                                                                   \n    --------------------------------------------------------------------------------------------\n\n                                Coram : R.M. Borde, J.\n<\/pre>\n
                                            rd
\n                                Dated   : 3    August, 2010<\/p>\n
    Oral Judgment :\n<\/p>\n
    1.           The order passed by the learned 2nd Ad hoc Additional Sessions <\/p>\n
    Judge, Wardha, in Criminal Revision No.21 of 2006 as well as in companion <\/p>\n
    revisions,  being Criminal Revision No.42 of 2006 and Criminal Revision <\/p>\n
    No.34 of 2006, is subjected to challenge in these matters. The Revisional <\/p>\n
    Court,   while   dismissing   the   criminal   revisions   tendered   by   the   accused, <\/p>\n
    proceeded to allow the revision tendered by the respondent\/complainant and <\/p>\n
    further directed issuance of process against the original accused Nos.8 to 16 <\/p>\n
    for offences punishable under Sections 494          and 109 read with Section <\/p>\n
    34 of the Indian Penal Code.   The learned Trial Magistrate, while dealing <\/p>\n
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\n                                                   6<\/span><\/p>\n
    with   the   complaint   tendered   by   the   respondent\/complainant,   had   earlier <\/p>\n
    directed issuance of process against original accused Nos.1 to 7 in view of <\/p>\n
    the   order   passed   on   2-2-2006.     The   Revisional   Court   has  confirmed   the <\/p>\n
    order passed by the learned Magistrate and in addition thereto, was pleased <\/p>\n
    to summon the remaining accused arrayed in the complaint.\n<\/p>\n
    2.<\/p>\n
                 Criminal Revision No.187 of 2006 is presented by the original <\/p>\n
    accused Nos.8 to 16 raising exception to the order passed by the Revisional <\/p>\n
    Court, whereas both the criminal applications, being Criminal Application <\/p>\n
    No.2428 of 2006 and 2429 of 2006, are presented by the rest of the accused <\/p>\n
    calling   in   question   the   order   passed   by   the   learned   Magistrate   directing <\/p>\n
    issuance of process against them.\n<\/p>\n
    3.           The complainant in the complaint tendered by her alleges that the <\/p>\n
    marriage   of   the   complainant   with   accused   No.1   Nandu   was   solemnized <\/p>\n
    on 7-5-1999.    However,  on account  of matrimonial  disputes, they started <\/p>\n
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\n                                                   7<\/span><\/p>\n
    residing   separate  since   1-7-1999.    It  is  alleged  that  accused  No.1  Nandu <\/p>\n
    entered   into   wedlock   with   accused   No.2   Archana   on   26-3-2001.     The <\/p>\n
    complainant   thus   alleges   that   accused   Nos.1   and   2   have   committed   an <\/p>\n
    offence   punishable   under   Section  494  of  the  Indian  Penal  Code,  as  they <\/p>\n
    entered into wedlock while the marriage of the complainant with accused <\/p>\n
    No.1 Nandu was still subsisting.  It is further alleged that the other accused <\/p>\n
    named in the complaint have aided and abetted commission of offence by <\/p>\n
    accused Nos.1 and 2.\n<\/p>\n
    4.           On receipt of the complaint, the learned Magistrate was pleased <\/p>\n
    to   record   the   verification   statement   of   the   complainant   and   issue   order <\/p>\n
    directing police to investigate the matter and submit report in accordance <\/p>\n
    with the provisions of Section 202 of the Code of Criminal Procedure.  The <\/p>\n
    learned Magistrate had also taken into account the documentary evidence <\/p>\n
    placed on record by the complainant, which indicates that an issue was born <\/p>\n
    out of the second wedlock.  Thus it is clear that the learned Magistrate was <\/p>\n
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\n                                                  8<\/span><\/p>\n
    satisfied that accused No.1 is residing with accused No.2 and an issue was <\/p>\n
    born   to   them   out   of   matrimonial   relations.   The   police   officials,   on <\/p>\n
    completion  of the enquiry,  submitted report  on 21-6-2005 along with the <\/p>\n
    papers of enquiry to the learned Magistrate.  The police reported the learned <\/p>\n
    Magistrate that there is no evidence available to substantiate the case put up <\/p>\n
    by   the   complainant   in   the   complaint.     On   consideration   of   the   report <\/p>\n
    tendered  by the police and on perusal  of the papers of investigation, the <\/p>\n
    learned Magistrate did not concur with the police and directed issuance of <\/p>\n
    process against accused Nos.1 to 7, calling upon them to answer the charge <\/p>\n
    levelled by the complainant in respect of commission of offences punishable <\/p>\n
    under Sections 494 and 109 read with Section 34 of the Indian Penal Code.\n<\/p>\n
    5.          The   order   passed   by   the   learned   Magistrate   on   2-2-2006   was <\/p>\n
    subjected to challenge before the Revisional Court in three different revision <\/p>\n
    applications tendered by the accused, so also the complainant   challenged <\/p>\n
    the order passed by the learned Magistrate on the ground of refusal by the <\/p>\n
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\n                                                    9<\/span><\/p>\n
    learned Magistrate to take cognizance of the offence allegedly committed by <\/p>\n
    accused Nos.8 to 16.  The Revisional Court, on consideration of the revision <\/p>\n
    applications tendered before it, has rendered decision as referred to in the <\/p>\n
    above   paragraphs   and   the   said   order   passed   by   the   Revisional   Court   is <\/p>\n
    subject-matter of challenge in these matters.\n<\/p>\n
    6.<\/p>\n
                 I   have   heard   the   arguments   advanced   by   the   learned   counsel <\/p>\n
    appearing   for   the   parties   and   perused   the   orders   passed   by   the   learned <\/p>\n
    Magistrate   as   well   as   the   Revisional   Court.     With   the   assistance   of   the <\/p>\n
    learned   counsel   appearing   for   the   parties,   I   have   also   gone   through   the <\/p>\n
    record of the case.\n<\/p>\n
    7.           The   learned   counsel   appearing   for   the   applicants   in   all   these <\/p>\n
    matters has vehemently contended that in fact there is no material placed on <\/p>\n
    record by the complainant to proceed against the accused.  It is contended <\/p>\n
    that the material gathered by the police, if considered, so also the allegations <\/p>\n
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\n                                                    10<\/span><\/p>\n
    levelled by the complainant in the complaint, if taken at their face value, do <\/p>\n
    not make out any case against the accused.   It is also contended that the <\/p>\n
    discretion   exercised   by   the   learned   Magistrate   in   directing   issuance   of <\/p>\n
    process is arbitrary, as the same is based on either no evidence or on the <\/p>\n
    material, which is wholly irrelevant.  The learned counsel for the applicants <\/p>\n
    contends that the statements of the witnesses cited by the complainant in the <\/p>\n
    complaint   recorded   by   the   police   do   not   make   out   any   case   against   the <\/p>\n
    accused.   He pointed out that the complainant has made a reference to the <\/p>\n
    names of five witnesses  and amongst  those witnesses,  he has invited my <\/p>\n
    attention  to the statements  recorded by the police in respect  of witnesses <\/p>\n
    Onkarrao   Pachare,   Bhanudas   Nanhe,   Subhash   Wankhede   and   Kisanrao <\/p>\n
    Solanke, contending that those very witnesses cited by the complainant do <\/p>\n
    not support the case of the complainant.  It is also contended that there is no <\/p>\n
    evidence in respect of solemnization of marriage at Tirthkshetra Hanuman <\/p>\n
    Mandir, Amravati.   It is thus contended that the material collected by the <\/p>\n
    police   is   not   sufficient   to   proceed   against   the   accused,   so   also   on   bare <\/p>\n
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\n                                                   11<\/span><\/p>\n
    perusal of the complaint, no case can be said to have been made out against <\/p>\n
    the accused.\n<\/p>\n
    8.           Another   ground   of   attack   by   the   learned   counsel   for   the <\/p>\n
    applicants is non-consideration of the report of the police and failure by the <\/p>\n
    learned Magistrate to record reasons for her disagreement with the report of <\/p>\n
    the police while passing the impugned order.  It is contended by the learned <\/p>\n
    counsel for the applicants that although the police have reported that there is <\/p>\n
    no   material   available   to   implicate   the   accused   in   the   crime,   the   learned <\/p>\n
    Magistrate has chosen not to rely upon the police report and proceeded to <\/p>\n
    direct issuance of process against accused Nos.1 to 7.  The learned counsel <\/p>\n
    for the applicants contended that in such circumstances, it was obligatory for <\/p>\n
    the learned Magistrate to record reasons for her disagreement with the police <\/p>\n
    report or at least she should have made a reference to the police report in the <\/p>\n
    order.   It is contended that on perusal of the order passed by the learned <\/p>\n
    Magistrate, it shows non-application of mind by the learned Magistrate to <\/p>\n
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\n                                                   12<\/span><\/p>\n
    the record of the case and as such the impugned orders passed by the learned <\/p>\n
    Magistrate as well as the Revisional Court need to be quashed and set aside.\n<\/p>\n
    9.           The   learned   counsel   appearing   for   the   applicants   has   placed <\/p>\n
    reliance on the judgment in the matter of Suhas Balkrishna Desai and others <\/p>\n
    v. Chandrakant Ramchandra Parab and others<\/a>, reported in 2001(1) Mh.L.J.\n<\/p>\n
    328, and contended that it was incumbent upon the learned Magistrate to <\/p>\n
    record reasons in respect of her disagreement  with the police report.   He <\/p>\n
    contends that the absence of reasons shows non-application of mind by the <\/p>\n
    learned Magistrate.  It is to be noted that the matter before the Court was one <\/p>\n
    arising out of an enquiry under Section 156(3) of the Code.  In the facts and <\/p>\n
    circumstances   of   that     case,   the   Court   proceeded   to   observe   that   it   was <\/p>\n
    desirable for the learned Magistrate to record reasons.  The scope of enquiry <\/p>\n
    under Section 202 of the Code of Criminal Procedure is different than the <\/p>\n
    one under Section 156(3) of the Code.  Even otherwise, there cannot be any <\/p>\n
    mandate requiring the learned Magistrate to record reasons in respect of his <\/p>\n
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\n                                                  13<\/span><\/p>\n
    disagreement with the police report.  It is only in the cases where the learned <\/p>\n
    Magistrate proceeds to dismiss the complaint by taking recourse to Section <\/p>\n
    203 of the Code, he is required to record reasons.  The reliance placed on the <\/p>\n
    aforesaid reported decision is misplaced.\n<\/p>\n
                Same   is   the   case   with   the   decision   rendered   in   the   matter   of <\/p>\n
    Vidya Kuldip Raj Kohil  v.  State of Maharashtra and<\/a> another, reported in <\/p>\n
    2002(2) Mh.L.J. 830, wherein the learned Single Judge has recorded that the <\/p>\n
    order passed by the learned Magistrate not only suffers from non-application <\/p>\n
    of   mind,   but   the   same   appears   to   have   been   passed   with   extraneous <\/p>\n
    considerations.   In the facts and circumstances of that case, the Court felt <\/p>\n
    need on the part of the learned Magistrate to record reasons in respect of his <\/p>\n
    disagreement.\n<\/p>\n
    10.         The   learned   counsel   appearing   for   the   respondent\/complainant <\/p>\n
    while supporting the order passed by the Revisional Court, contended that <\/p>\n
    there   is   sufficient   material   brought  on   record  requiring  the  learned  Trial <\/p>\n
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\n                                                 14<\/span><\/p>\n
    Magistrate to take cognizance of the offence.  It is contended that the very <\/p>\n
    purpose of enquiry under Section 202 of the Code of Criminal Procedure is <\/p>\n
    to provide aid to the Magistrate in arriving at a decision as to whether the <\/p>\n
    case is one which may lead to full-length trial.  The scope of enquiry under <\/p>\n
    Section 202 of the Code of Criminal Procedure is quite restricted and it is <\/p>\n
    always open for the Magistrate to apply his mind to the record of the case <\/p>\n
    and to adopt a different view.   It is not incumbent upon the Magistrate to <\/p>\n
    accept the report of the police nor law mandates recording of reasons by the <\/p>\n
    Magistrate  in the event  of his exhibition  of disagreement  with  the report <\/p>\n
    tendered by the police.  It is sufficient in the facts and circumstances of the <\/p>\n
    case   that   reasonable   inference   could   be   drawn   on   perusal   of   order   of <\/p>\n
    magistrate as regards application of mind to the record by the Magistrate.  It <\/p>\n
    is contended that the learned Magistrate has applied her mind to the record <\/p>\n
    of the case and has proceeded to issue order summoning accused Nos.1 to 7.\n<\/p>\n
    It is contended that reasonableness or sufficiency of the reasons recorded by <\/p>\n
    the learned Magistrate cannot be a matter of challenge before the Revisional <\/p>\n
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\n                                                  15<\/span><\/p>\n
    Court   or   the   High   Court.     The   learned   counsel   for   the <\/p>\n
    respondent\/complainant contends that it is not open for the superior Courts <\/p>\n
    to probe in the reasons recorded by the learned Magistrate and to arrive at a <\/p>\n
    different conclusion.  At the stage of issuance of process, the accused have <\/p>\n
    no   role   to   play   and   the   adequacy   of   the   material   available   with   the <\/p>\n
    Magistrate for taking cognizance or reasonableness of the reasons recorded <\/p>\n
    by   the   Magistrate   while   summoning   the   accused   cannot   be   a   matter   of <\/p>\n
    scrutiny by the higher Courts, at the instance of the accused.\n<\/p>\n
    11.          Law   prescribes   different   modes,   which   are   available   with   the <\/p>\n
    Magistrate,  in respect  of proceeding further in the matter on receipt  of a <\/p>\n
    complaint.  A Magistrate can order investigation under Section 156(3) of the <\/p>\n
    Code of Criminal Procedure at a pre-cognizance stage, that is to say, before <\/p>\n
    taking cognizance under Section 190 of the Code of Criminal  Procedure, <\/p>\n
    and where a Magistrate decides to take cognizance under the provisions of <\/p>\n
    Chapter XIV of the Code of Criminal Procedure, he is not entitled in law to <\/p>\n
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\n                                                    16<\/span><\/p>\n
    order investigation under Section 156(3) of the Code, though in cases not <\/p>\n
    falling   within   the   proviso   to   Section   202   of   the   Code,   he   can   order   an <\/p>\n
    investigation by the police which would be in the nature of an enquiry as <\/p>\n
    contemplated by Section 202 of the Code.  Where a Magistrate chooses to <\/p>\n
    take cognizance, he can adopt any of the following alternatives : (a) he can <\/p>\n
    peruse the complaint  and if satisfied that there are sufficient  grounds for <\/p>\n
    proceeding he can straightaway issue process to the accused but before he <\/p>\n
    does so he must comply with the requirements of Section 200 of the Code <\/p>\n
    and record the evidence of the complainant or his witness, (b) the Magistrate <\/p>\n
    can postpone the issue of process and direct an enquiry by himself, or (c) the <\/p>\n
    Magistrate can postpone the issue of process and direct an enquiry by any <\/p>\n
    other person or an investigation by the police.  In case the Magistrate after <\/p>\n
    considering the statement of the complainant and the witnesses or as a result <\/p>\n
    of the investigation and the enquiry ordered is not satisfied that there are <\/p>\n
    sufficient grounds for proceeding he can dismiss the complaint.   Where a <\/p>\n
    Magistrate orders investigation by the police before taking cognizance under <\/p>\n
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\n                                                  17<\/span><\/p>\n
    Section 156(3) of the Code and receives the report thereupon he can act on <\/p>\n
    the report and discharge the accused or straightaway issue process against <\/p>\n
    the accused or apply his mind to the complaint filed before him and take <\/p>\n
    action under Section 190 of the Code, as described above.\n<\/p>\n
    12.          This  raises  a  question  as to whether  taking  cognizance  by the <\/p>\n
    Magistrate   is   within   the   contemplation   of   Section   190   of   the   Code   of <\/p>\n
    Criminal Procedure.  As has been analyzed in the decisions rendered by the <\/p>\n
    Apex   Court   in   several   matters,   when   the   Magistrate,   on   receipt   of   a <\/p>\n
    complaint, orders investigation by police taking recourse to Section 156(3) <\/p>\n
    of   the   Code   in   respect   of   cognizable   offences,   he   does   so   at   a <\/p>\n
    pre-cognizance stage.  The Magistrate, however, on receipt of the complaint <\/p>\n
    and after applying his mind, can either straightway proceed to record the <\/p>\n
    verification statement of the complainant and direct issuance of process or <\/p>\n
    may   postpone   the   issuance   of   process   and   direct   either   investigation   by <\/p>\n
    police or ask the complainant to produce his evidence before him.  When the <\/p>\n
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\n                                                   18<\/span><\/p>\n
    Magistrate   acts   in   accordance   with   the   provisions   of   Section   202   of   the <\/p>\n
    Code, he issues the directions on taking cognizance of the complaint.  The <\/p>\n
    order   passed   by   the   Magistrate   under   Section   202   of   the   Code   either <\/p>\n
    requiring the complainant to place his evidence before the Court or direct <\/p>\n
    investigation and report by police is the order at a pre-cognizance stage.  It <\/p>\n
    is appropriate to refer to the decision rendered by the Apex Court in this <\/p>\n
    regard.  In the matter of Devarapalli Lakshminarayana Reddy and others v.\n<\/p>\n
    Narayana Reddy and others, reported in AIR 1976 SC 1672, the Apex Court <\/p>\n
    has observed in para 14 as under :\n<\/p>\n
                 “14.          This raises the incidental question: What is meant by  <\/p>\n
                 “taking cognizance of an offence” by the Magistrate within the  <\/p>\n
                 contemplation   of   Section   190?     This   expression   has   not   been  <\/p>\n
                 defined   in   the   Code.     But   from   the   scheme   of   the   Code,   the  <\/p>\n
                 content and marginal heading of Section 190 and the caption of  <\/p>\n
                 Chapter XIV under which Sections 190 to 199 occur, it is clear  <\/p>\n
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\n                                       19<\/span><\/p>\n
     that a case can be said to be instituted in a Court only when the  <\/p>\n
     Court takes cognizance of the offences alleged therein.  The ways  <\/p>\n
     in which such cognizance can be taken are set out in clauses (a),  <\/p>\n<\/blockquote>\n
     (b) and (c) of Section 190(1).  Whether the Magistrate has or has  <\/p>\n
     not   taken   cognizance   of   the   offence   will   depend   on   the  <\/p>\n
     circumstances of the particular case including the mode in which  <\/p>\n
     the   case   is   sought   to   be   instituted,   and   the   nature   of   the  <\/p>\n
     preliminary   action,   if   any,   taken   by   the   Magistrate.     Broadly  <\/p>\n
     speaking, when on receiving a complaint, the Magistrate applies  <\/p>\n
     his mind for the purposes of proceeding under Section 200 and  <\/p>\n
     the succeeding sections in Chapter XV of the Code of 1973, he is  <\/p>\n
     said to have taken cognizance of the offence within the meaning  <\/p>\n
     of Section 190(1)(a).   If, instead of proceeding under Chapter  <\/p>\n
     XV, he, has in the judicial exercise of his discretion, taken action  <\/p>\n
     of   some  other   kind, such  as  issuing a  search  warrant   for the  <\/p>\n
     purpose of investigation, or ordering investigation by the police  <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                               20<\/span><\/p>\n
                under   Section   156(3),   he   cannot   be   said   to   have   taken  <\/p>\n
                cognizance of any offence.”\n<\/p><\/blockquote>\n
    13.         So   far  as  the  scope  of  Section  202  of  the  Code  is concerned, <\/p>\n
    various High Courts in catena of decisions have examined the significance <\/p>\n
    of   Section   202   of   the  Code  and the Apex  Court,  while  dealing  with  the <\/p>\n
    matter of Mohinder Singh v. Mohinder Pal and others, reported in AIR 1992 <\/p>\n
    SC 1894, has observed in para 11 of the judgment as under :\n<\/p>\n
                “The scope of enquiry under S. 202 is extremely restricted only  <\/p>\n
                to finding out the truth or otherwise of the allegations made in  <\/p>\n
                the complaint in order to determine whether process should be  <\/p>\n
                issued or not under S. 204 of the Code or whether the complaint  <\/p>\n
                should be dismissed by resorting to S. 203 of the Code on the  <\/p>\n
                footing that there is no sufficient ground for proceeding on the  <\/p>\n
                basis of the statements of the complainant and of his witnesses, if  <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                      21<\/span><\/p>\n
     any.  But the enquiry at that stage does not partake the character  <\/p>\n
     of a full dress trial which can only take place after process is  <\/p>\n
     issued   under   S.   204   of   the   Code   calling   upon   the   proposed  <\/p>\n
     accused to answer the accusation made against him for adjuding  <\/p>\n
     the guilt or otherwise of the said accused person.   Further, the  <\/p>\n
     question   whether   the   evidence   is   adequate   for   supporting   the  <\/p>\n
     conviction   can  be determined only at the trial and not at  the  <\/p>\n
     stage of the enquiry contemplated under S. 202 of the Code.  To  <\/p>\n
     say in other words, during the course of the enquiry under S. 202  <\/p>\n
     of the Code, the Enquiry Officer has to satisfy himself simply on  <\/p>\n
     the  evidence  adduced  by the  prosecution whether  prima facie  <\/p>\n
     case has been made out so as to put the proposed accused on  <\/p>\n
     regular trial and that no detailed enquiry is called for during the  <\/p>\n
     course   of   such   enquiry.     Vide   Vadilal   Panchal   v.   Dattatraya  <\/p>\n
     Dulaji Ghadigaonkar,<\/a> (1961) 1 SCR 1 : (AIR 1960 SC 1113) and  <\/p>\n
     Pramatha Nath Talukdar v. Saroj Ranjan,<\/a> 1962 Supp (2) SCR  <\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                                   22<\/span><\/p>\n
                 297 : (AIR 1962 SC 876).”\n<\/p><\/blockquote>\n
    14.          Taking resume of the judgments cited above, it would be quite <\/p>\n
    clear that the scope of enquiry while taking recourse to Sections 156(3) and <\/p>\n
    202 of the Code is different and the Magistrate is invested with the power to <\/p>\n
    deal  with  both  the situations  differently.    As has  been  made  clear  in the <\/p>\n
    catena of decisions, the scope of enquiry under Section 202 of the Code is <\/p>\n
    only to ascertain the truth or falsehood made in the complaint on the basis of <\/p>\n
    the material placed by the complainant before the Court for limited purpose <\/p>\n
    of finding out whether a prima facie case for issue of process has been made <\/p>\n
    out.  The Magistrate is required to form an opinion without adverting to any <\/p>\n
    probable defence the accused may have.\n<\/p>\n
    15.          Turning to the facts of the instant case, though it is contended that <\/p>\n
    the   material   placed   on   record   is   insufficient   to   take   cognizance   of   the <\/p>\n
    offence, this Court while exercising powers under Section 482 of the Code <\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                                    23<\/span><\/p>\n
    has to scrutinize the material bearing in mind the limitations in respect of <\/p>\n
    causing   interference   and   also   the   desirability   to   probe   into   the   material <\/p>\n
    placed on record at the initial  stage of issuance of process.   It cannot be <\/p>\n
    controverted that the accused has no role to play in an enquiry at the stage of <\/p>\n
    issuance of process.  It is matter between the complainant and the Court.  So <\/p>\n
    far   as   the   sufficiency   of   the   material   for   proceeding   with   the   matter   is <\/p>\n
    concerned,  it  is for the  Magistrate  to scrutinize  the record  and reach  the <\/p>\n
    conclusion.   The sufficiency or otherwise of the material placed on record <\/p>\n
    before the Magistrate while the Magistrate issues order for proceeding with <\/p>\n
    the complaint and directs issuance of process cannot be a matter of in-depth <\/p>\n
    scrutiny at the hands of the higher Courts.   What is required to be seen is <\/p>\n
    that on perusal of the complaint and on the basis of the material placed on <\/p>\n
    record, prima facie without adverting to the probable defence that may be <\/p>\n
    available to the accused, whether a case is made out for proceeding further.\n<\/p>\n
    In the instant matter, although it has been pointed out that the witnesses cited <\/p>\n
    in the complaint by the complainant do not wholly support her case, the fact <\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                                 24<\/span><\/p>\n
    remains that the complaint itself contains the allegations, which constitute an <\/p>\n
    offence.   On perusal of the record of the Trial Court, it transpires that the <\/p>\n
    police during the course of investigation have recorded the statements of the <\/p>\n
    witnesses related to the complainant and they have stated above the factum <\/p>\n
    of second marriage of accused no.1 with accused No.2.   Apart from these <\/p>\n
    aspects,  there  are few affidavits  filed  on record before the Magistrate  by <\/p>\n
    certain witnesses, who have made the grievance in respect of investigation in <\/p>\n
    the matter.   The complaint is made by at least three witnesses, who states <\/p>\n
    that the police have not recorded the statements according to their versions <\/p>\n
    and the statements of the witnesses have been recorded so as to shield the <\/p>\n
    offenders.  Taking into consideration all the material, in all probabilities, the <\/p>\n
    Magistrate decided to proceed against a few accused.  As stated above, there <\/p>\n
    cannot be any in-depth scrutiny of the material collected by the Investigation <\/p>\n
    Officer,   which   led   the   Magistrate   to   form   her   opinion   in   respect   of <\/p>\n
    desirability to proceed further in the matter.\n<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                                  25<\/span><\/p>\n
    16.          A reference can be made to the judgment of the Apex Court in <\/p>\n
    the matter of Smt. Nagawwa v. Veeranna Shivlingappa Konjalgi and others<\/a>, <\/p>\n
    reported   in  (1976)   3   SCC   736,   wherein   the   scope   of   enquiry   under <\/p>\n
    Section   202   of   the   Code   has   been   considered   by   the   Apex   Court.     The <\/p>\n
    relevant observations made in paragraphs 3 and 4 read as under :\n<\/p>\n
                 “3.\n<\/p><\/blockquote>\n
                              In Chandra Deo Singh v. Prakash Chandra Bose<\/a> this  <\/p>\n
                 Court had after fully considering the matter observed as follows :\n<\/p><\/blockquote>\n
                              The courts have also pointed out in these cases that  <\/p>\n
                 what the magistrate has to see is whether there is evidence in  <\/p>\n
                 support of the allegations of the complainant and not whether the  <\/p>\n
                 evidence   is   sufficient   to   warrant   a   conviction.     The   learned  <\/p>\n
                 Judges in some of these cases have been at pains to observe that  <\/p>\n
                 an enquiry under Section 202 is not to be likened to a trial which  <\/p>\n
                 can only take place after process is issued, and that there can be  <\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                      26<\/span><\/p>\n
     only one trial.  No doubt, as stated in sub-section (1) of Section  <\/p>\n
     202 itself, the object of the enquiry is to ascertain the truth or  <\/p>\n
     falsehood   of   the   complaint,   but   the   magistrate   making   the  <\/p>\n
     enquiry has to do this only with reference to the intrinsic quality  <\/p>\n
     of the statements made before him at the enquiry which would  <\/p>\n
     naturally mean the complaint itself, the statement on oath made  <\/p>\n
     by   the   complainant   and   the   statements   made   before   him   by  <\/p>\n
     persons examined at the instance of the complainant.\n<\/p><\/blockquote>\n
     Indicating   the   scope,   ambit   of   Section   202   of   the   Code   of  <\/p>\n
     Criminal Procedure this Court in Vaddilal Panchal v. Dattatraya  <\/p>\n
     Dulaji Ghadigaonker<\/a> observed as follows :\n<\/p>\n
                  Section 202 says that the magistrate may, if he thinks  <\/p>\n
     fit, for reasons to be recorded in writing, postpone the issue of  <\/p>\n
     process for compelling the attendance of the person complained  <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                      27<\/span><\/p>\n
     against and direct an inquiry for the purpose of ascertaining the  <\/p>\n
     truth or falsehood of the complaint, in other words, the scope of  <\/p>\n
     an inquiry under the section is limited to finding out the truth or  <\/p>\n
     falsehood of the complaint in order to determine the question of  <\/p>\n
     the   issue   of   process.     The   inquiry   is   for   the   purpose   of  <\/p>\n
     ascertaining the truth or falsehood of the complaint; that is, for  <\/p>\n
     ascertaining   whether   there   is   evidence   in   support   of   the  <\/p>\n
     complaint so as to justify the issue of process and commencement  <\/p>\n
     of proceedings against the person concerned.  The section does  <\/p>\n
     not say that a regular trial for adjudging the guilt or otherwise of  <\/p>\n
     the person complained against should take place at that stage;\n<\/p>\n
     for the person complained against can be legally called upon to  <\/p>\n
     answer the accusation made against him only when a process  <\/p>\n
     has issued and he is put on trial.”\n<\/p>\n
     4.           It would thus be clear from the two decisions of this  <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:14:09 :::<\/span>
\n                                                    28<\/span><\/p>\n
               Court that the scope of the inquiry under Section 202 of the Code  <\/p>\n
               of Criminal Procedure is extremely limited – limited only to the  <\/p>\n
               ascertainment of the truth or falsehood of the allegations made in  <\/p>\n
               the complaint – (I) on the materials placed by the complainant  <\/p>\n
               before   the   court;   (ii)   for   the   limited   purpose   of   finding   out  <\/p>\n
               whether a prima face case for issue of process has been made  <\/p>\n
               out; and (iii) for deciding the question purely from the point of  <\/p>\n
               view of the complainant without at all adverting to any defence  <\/p>\n
               that   the   accused   may   have.     In   fact   it   is   well   settled   that   in  <\/p>\n
               proceedings under Section 202 the accused has got absolutely no  <\/p>\n
               locus   standi   and   is   not   entitled   to   be   heard   on   the   question  <\/p>\n
               whether the process should be issued against him or not.\n<\/p>\n
    The Apex Court has further laid down the principles in respect of causing <\/p>\n
    interference by the higher Courts in the matter calling in question orders in <\/p>\n
    respect of issuance of process.  Those are quoted in para 5 of the judgment, <\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 16:14:10 :::<\/span>
\n                                                29<\/span><\/p>\n
    which read as under :\n<\/p>\n
              “(1)          where the allegations made in the complaint or the  <\/p>\n
              statements of the witnesses recorded in support of the same taken  <\/p>\n
              at   their   face   value   make   out   absolutely   no   case   against   the  <\/p>\n
              accused   or   the   complaint   does   not   disclose   the   essential  <\/p>\n
              ingredients of an offence which is alleged against the accused;\n<\/p><\/blockquote>\n
              (2)           where   the   allegations   made   in   the   complaint   are  <\/p>\n
              patently  absurd   and inherently improbable so that  no prudent  <\/p>\n
              person   can   ever   reach   a   conclusion   that   there   is   sufficient  <\/p>\n
              ground for proceeding against the accused;\n<\/p><\/blockquote>\n
              3.            where  the discretion exercised  by the magistrate  in  <\/p>\n
              issuing process is capricious and arbitrary having been based  <\/p>\n
              either   on   no   evidence   or   on   materials   which   are   wholly  <\/p>\n
              irrelevant or inadmissible; and <\/p>\n<\/blockquote>\n
              4.            where the complaint suffers from fundamental legal  <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:14:10 :::<\/span>
\n                                                30<\/span><\/p>\n
                defects, such as, want of sanction, or absence of a complaint by  <\/p>\n
                legally competent authority and the like.”\n<\/p><\/blockquote>\n
    17.         It is contended by the learned counsel for the applicants that the <\/p>\n
    material collected by the police and perused by the learned Magistrate as <\/p>\n
    well as the allegations contained in the complaint taken at their face value <\/p>\n
    are not sufficient to proceed against the accused.  However, as stated above, <\/p>\n
    I am of the opinion that this is not a case wherein there is absolutely no <\/p>\n
    material to proceed against the accused.  The sufficiency or otherwise of the <\/p>\n
    material cannot  be a matter of enquiry by the Trial Court.     In the same <\/p>\n
    judgment (Smt. Nagawwa  v.  Veeranna Shivlingappa Konjalgi and others<\/a>), <\/p>\n
    referred to above, the Apex Court has observed, “Whether the reasons were <\/p>\n
    good or bad, sufficient or insufficient, is not a matter which could have been <\/p>\n
    examined by the High Court in revision”.  The principle enunciated by the <\/p>\n
    Apex   Court   in   the   aforesaid   judgment   equally   applies   to   the   decision <\/p>\n
    rendered by the Revisional Court in these matters.  The Revisional Court has <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:14:10 :::<\/span>
\n                                                  31<\/span><\/p>\n
    exceeded its jurisdiction in causing interference in the order passed by the <\/p>\n
    Magistrate  by directing  issuance  of  process  against  accused  Nos.8  to 16.\n<\/p>\n
    The Magistrate on consideration of the material has formed an opinion that <\/p>\n
    there is sufficient material to proceed against accused Nos.1 to 7 only.   It <\/p>\n
    was not open for the Revisional Court to probe further and record a contrary <\/p>\n
    opinion.     The   order   passed   by   the   Revisional   Court   is   in   excess   of <\/p>\n
    jurisdiction   vested   in   him.     The   order   passed   by   the   Revisional   Court, <\/p>\n
    therefore, needs to be quashed and set aside.\n<\/p>\n
    18.          For the reasons set out above, Criminal Revision No.187 of 2006 <\/p>\n
    presented by accused Nos.8 to 16 stands allowed and the order passed by the <\/p>\n
    Revisional   Court   on   22-6-2006   is   quashed   and  set   aside.     Rule   is   made <\/p>\n
    absolute accordingly.\n<\/p>\n
                 Criminal   Applications   Nos.2428   and   2429   of   2006   stand <\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 16:14:10 :::<\/span>
\n                                                              32<\/span><\/p>\n
    dismissed.    Rule is discharged  in the concerned criminal  applications.\n<\/p>\n
                                                                                                   Judge.\n<\/p>\n
    pdl<\/p>\n
                                                                                        ::: Downloaded on – 09\/06\/2013 16:14:10 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-40209","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSau. Sangita vs The Order Passed By The Learned 2Nd ... on 3 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sau-sangita-vs-the-order-passed-by-the-learned-2nd-on-3-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sau. 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