JUDGMENT 1. - This is really an unfortunate case in which on the complaint of the husband cognizance u/s 380, IPC has been taken by the learned Magistrate against the accused petitioner. 2. The accused-petitioner is M. A., Ph D. in Hindi and is a senior lecturer in Kanodia Girls College, Jaipur. The marriage of the accused petitioner with the non petitioner Jagdish Prasad Saxena took place on 10-2-70 and out of the wedlock one boy, who is aged about six years now, was born. Both the accused petitioner and her husband, Jagdish Prasad Saxena, in the year 1978 were residing as tenants in the house No. 143 Dayanand Marg. Tilaknagar, Jaipur, of which ore Dinesh Kumir Sharma is the landlord. It appears that for some time the relations between the accused-petitioner and the husband were strained to a great extent and since the year 1975 there has been exchange of letters. The accused-petitioner is also a writer of short stories. The non-petitioner Jagdish Prasad Saxena has his parental house in Brahmpuri, Jaipur, which is at a distance of 5-6 Kms. from Tilaknagar. It is alleged that on 13-5-78, the said Jagdish Prasad had gone to his father in Brahmpuri and stayed there during the night. On 14-5-78, at about 5 or 5.30 p. m. when he reached his house, No. 143 Dayanad Marg, Tilaknagar, Jaipur, it was noticed by him that the house occupied by him and his wife, the accused petitioner, was lying vacant, and the house-hold goods were not there. He lodged a complaint against the accused-petitioner, his own wife, and her father Rambahadur, her brothers Amar Rai and Naresh Rai, Dinesh Chandra Sharma, the owner of the house in Tilaknagar, and one Radhey Shyam Pushkarna, Deputy Registrar, Rajasthan University, Jaipur, on 21-6-78. The learned Magistrate recorded the statement of the complaint u/s 200, Cr. P. C. and also recorded the statements of Ramdayal Sharma (PW 2), Ashok Saxena (PW3) and Shabbir Ahmed (PW 4) u/s 202, Cr. P. C. There after, he sent the complaint u/s 202, Cr. P. C., vide his order dated 12-7-78, to the S. H. O., Adarshnagar, Jaipur, to enquire into the question of possession of the accused of the alleged stolen property. In P. S. Adarshnagar, the statements of Raghubir Prasad and one Sayeed were recorded and the police submitted the result of the investigation to the learned Magistrate. P. C., vide his order dated 12-7-78, to the S. H. O., Adarshnagar, Jaipur, to enquire into the question of possession of the accused of the alleged stolen property. In P. S. Adarshnagar, the statements of Raghubir Prasad and one Sayeed were recorded and the police submitted the result of the investigation to the learned Magistrate. The learned Magistrate, thereafter, vide his order dated 18-5-79, took cognizance of an offence u/s 380 IPC against the accused petitioner only, and ordered the issue of process. 3. The accused-petitioner has challenged the order of taking cognizance of an offence against her as well as issuing process, and, according to the learned Advocate for the accused-petitioner, even if the complaint and the evidence collected in support of it is taken at is face value, the essential ingredients of an offence u/s 308, IPC are not made out and thus the order taking cognizance of the offence amounts to abuse of the Process of the court and should be quashed. 4. The learned Advocate for the accused-petitioner has raised a three fold submission, (1) that the learned Magistrate has not considered the evidence collected u/s 202 Cr. P. C, by the S. H. O., P. S. Adarshnagar, and he had only confined the consideration to the evidence recorded by himself as well as produced by the complainant non-petitioner before the police. This approach is nut in accordance with law and renders the order of the learned Magistrate taking cognizance as illegal, (2) that the evidence produced before the learned Magistrate does not make out any case u/s 380, IPC against the accused-petitioner, and (3) that it was a case of a joint possession of husband and wife of the property alleged to have been stolen, and as such no offence of theft is made out. 5. With regard to the first submission that the learned Magistrate ha s not considered the entire evidence collected by the Investigating Officer, P. S. Adarshnagar, the learned Advocate has taken me through the order dated 18.5.79 taking cognizance against the accused-petitioner, and submits that the consideration is only confined to the evidence produced by the complainant, u/s 202, Cr. 5. With regard to the first submission that the learned Magistrate ha s not considered the entire evidence collected by the Investigating Officer, P. S. Adarshnagar, the learned Advocate has taken me through the order dated 18.5.79 taking cognizance against the accused-petitioner, and submits that the consideration is only confined to the evidence produced by the complainant, u/s 202, Cr. P. C., The Magistrate, who is authorised to take cognizance of the complaint if thinks fit, can postpone the issue of process against the accused and either enquire into the complaint himself or direct investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding. To my mind, a bare reading of sub-sec. (1) of S. 202, Cr. P. C. will show that either the Magistrate may enquire into the case himself or direct the investigation to be made by the police officer or by such person, as he thinks fit, but he cannot have both ways. It is not open to him to make an enquiry in part himself and then refer the matter to the police officer for further investigation. Therefore, when the learned Magistrate decided to enquire into the case himself for the purpose of deciding whether or not there is sufficient ground for proceeding, and had recorded the statements of three witnesses u/s 202, Cr. P. C. it : was not open to him to have directed an investigation to be made by the S. H. O. P. S. Adarshnagar u/s 202, Cr. P. C. vide his order dated 12-7-78. Therefore, the result of the investigation, if any made by the S. H. O., P. S. Adarshnagar, as a result of reference to him u/s 202, Cr. P. C. and the evidence collected during the investigation should not have been taken into consideration by the learned Magistrate, the same being not in accordance with law. 6. If the case is viewed from other angle, then also I am of the opinion that the entire evidence collected during the investigation of the case by the Investigating Officer on reference to him u/s 202(1), Cr. P. C. has to be looked into for the purpose of deciding whether or not there is sufficient ground for proceeding with the case. A look at S. 203, Cr. P. C. has to be looked into for the purpose of deciding whether or not there is sufficient ground for proceeding with the case. A look at S. 203, Cr. P. C. will show that not only the statements on oath, if any, of the complainant and of the witnesses, but also the result of the enquiry or investigation, if any, u/s 202 Cr. P. C. has to be considered by the Magistrate for forming an opinion as to whether or not there is sufficient ground for proceeding against the accused. While forming an opinion u/s 204, Cr. P. C., as to whether there is sufficient ground for proceeding or not, the Magistrate must consider the same material, which he is required to consider u/s 203, Cr.P.C. In Wadilal Panchal v. Dattatraya( AIR 1960 SC 1113 ) the scope of sections 200 to 204, Cr. P. C. has been considered. In that case, the question arose as to whether the learned Magistrate could have considered and accepted the plea of right of self defence brought out on the evidence collected u/s 202, Cr. P. C. by the police, while forming an opinion as to whether a process should be issued against the accused persons or not. It was observed by their Lordships as follows , - "What is contended on behalf of the respondent complainant is that as a matter of law it was not open to the learned Magistrate to accept the plea of right of self defence at a stage when all that he had to determine-was whether a process should issue or not against the appellant. We are unable to accept this contention as correct. It is manifestly clear from the provisions of S. 203 that the judgment which a magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or enquiry. This does not mean that the Magistrate is bound to accept the result of the enquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. This does not mean that the Magistrate is bound to accept the result of the enquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment, he is not faltered in any way except by judicial considerations, he is not bound to accept what the enquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of enquiry under S. 202, Cr. P. C. and has applied his mind judicially before him, we must think it would be erroneous in law to hold that a plea based on exception can never be accepted by him for arriving at his judgment." 7. It can, therefore, be said on the basis of the above dictum that it is necessary for the learned Magistrate to consider the result of the investigation. He may or may not believe it, and not withstanding the fact that the result of the investigation is adverse to the complainant, on the material on record, he can still issue process against the accused. In the instant case, it is not disputed that after the investigation u/s 202, Cr. P. C. the S. H. O., P. S., Adarshnagar in the result of investigation submitted to the learned Magistrate clearly mentioned that no case is made out and it cannot be said that the property alleged to have been stolen away was owned by the complainant. The learned Magistrate, as appears, did not even consider the result of the investigation. Not only this, while he considered the statements of Raghubir Prasad and Sahid recorded u/s 202, Cr. P. C. by the Investigating Officer, he did not consider the other evidence collected by the Investigating Officer. The learned Magistrate, as appears, did not even consider the result of the investigation. Not only this, while he considered the statements of Raghubir Prasad and Sahid recorded u/s 202, Cr. P. C. by the Investigating Officer, he did not consider the other evidence collected by the Investigating Officer. The submission of the learned Advocate for the complainant is that the learned Magistrate was only required to consider such evidence as was produced before him during the investigation of the case, and he could not have considered the other evidence collected by the S. H. O. at the instance of the accused or suo motu. In support of his submission, he has referred to Chandra Dev v. Prakash Chand Bose & others. ( AIR 1963 SC 1430 ) In that case,, the facts were not that the investigation was made by the police on reference to it u/s 202, Cr. P. C. by the Magistrate. But, the facts were that when an enquiry u/s 202.. Cr. P. C. was being made by the Magistrate himself, the accused put in appearance and sought participation in the enquiry. He also sought a right to cross-examine the witnesses of the complainant and to produce his own evidence, but it was in the context of those facts that it was observed that the accused has no right at this stage, A look at S 202 (1) Cr. P. C. will show that the matter is to be referred to the police officer for investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. The police officer while investigating u/s 202, Cr. P. C. is not debarred from examining such of the witnesses as he thinks proper and to base the result of investigation on the evidence so collected. Therefore, do not find any substance in the submission of the learned Advocate for the non-petitioner that the police officer u/s, 202, Cr.P.C. on direction to make investigation by the Magistrate for the purpose of deciding whether or not there is sufficient ground for proceeding has only to confine to examining of such witnesses who may be produced by the complainant before him. Therefore, though have held above that the learned Magistrate having once proceeded to enquire into the matter himself for the purpose whether or not there is sufficient ground for proceeding could not have directed an investigation to be made for the same purpose, but even otherwise it was necessary for the learned Magistrate to have considered the result of the investigation and, if at all, evidence collected by the S. H. O. was to be considered, then the entire evidence had to be considered. The matter might have been different, if after considering the result of the investigation, the learned Magistrate would have taken cognizance. It can, therefore, be said that the learned Magistrate mis-directed himself with regard to the enquiry u/s 202, Cr. P. C. 8. The law is settled that if from the perusal of the complaint and other material on record, no prima facie case worth taking cognizance is made out, or, in other words, the facts do not go to make out essential ingredients of an offence, the cognizance taken in a criminal case can be quashed by this Court. Their Lordships of the Supreme Court in State of Karnataka v. L. Munna Swami and others(Cr.L.R. (S.C) 1977 page 188) have observed that the saving of the High Court's inherent powers both in civil and criminal matters is designed to achieve a salutory public purpose, i. e. the Court proceeding ought not be permitted to degenerate into the weapon of harassment of parse prosecution. In R.P. Kapur v. State of Punjab ( AIR 1960 SC 866 ) which was quoted with approval in Madhu Limaye v. State of Maharashtra, ( AIR 1978 SC 47 ) their Lordships of the Supreme Court have observed as follows : "Cases may also arise where the allegations to the first information report or the complaint, even if they are taken at their face, value and accepted in their entirety do not constitute an offence alleged, in such cases no question of appreciating evidence arises , it is a matter merely of looking at the complaint or the first information report whether the offence alleged is disclosed or not. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category, the allegations made against the accused person do not constitute an offence alleged, but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where the legal evidence, which, on its appreciation, may or may not support the accusation in question. In exercising its jurisdiction u/s 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence, the accusation made against the accused would not be sustained." 9. R. P. Kapur's case came for consideration in Munna-Swami's case, where his Lordship Y. V. Chandrachud, as his Lordship then was, has observed as follows : "The fact of the matter is that there is no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the respondents are in any manner connected with the incident leading to the prosecution. Gajendra Gadhkar J., who spoke for the Court in Kapur's case observed in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule, which would govern the exercise of High Court's inherent jurisdiction. The three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction should only be illustrative, and can in the very nature of things not be recorded as exhaustive. A consideration justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by S. 482 ought not to be encased with the State jacket of a rigid formula." 10. Let us now turn to the facts of the instant case. A consideration justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by S. 482 ought not to be encased with the State jacket of a rigid formula." 10. Let us now turn to the facts of the instant case. Both the accused-petitioners the wife, and the non-petitioner complainant, her husband, were residing in the same house No. 143, Dayanand Marg, Tilknagar, Jaipur. As already stated above, the accused-petitioner is M. A., Ph. D. in Hindi and Senior Lecturer in Kanodia Girls College, Jaipur, and can be said to be a woman of means. There is material on record that on 14-5-78, the complainant gave his address care of his father in Brahmapuri. The house was vacated on 14-5-78 and it is mentioned in the complaint that the wife committed theft of the articles. The F. I. R. was lodged by the complainant on the same day, i. e., 14-5-78, but no name of any witness was mentioned therein. The complainant was not present when the alleged theft is said to have taken place. In support of the complaint, which was filed on 21-5-78, besides examining himself the complainant examined Ramdayal Shaima (PW 2) Ashok Saxena (PW3) brother of the complainant and Shabbir Ahmed (PW 4). All these witnesses do not reside in Tilaknagar. Ramdayal Sharma and Ashok Saxena do not say about the ownership of the goods alleged to have been stolen. In the FIR Jagdish Prasad Saxena does not say that he was the owner of the various articles allegedly taken away by his wife on 14-5-78. He was living jointly with his wife in the same house. For an offence u/s380 IPC the essential ingredients of the offence must be prima facie proved. There must be allegations that, (1) any movable property was taken out of the possession of any person without his consent, (2) such taking must be dishonestly and (3) that properly must be moved in order to such taking. Besides the statement of Ramdayal, there is no direct testimony on the record. According to Ramdayal, he informed the complainant immediately about this incident, but there is no such mention in the F.I.R. which was lodged even after five hours of the alleged occurrence of the name of Ram dayal or that he witnessed the actual theft. Besides the statement of Ramdayal, there is no direct testimony on the record. According to Ramdayal, he informed the complainant immediately about this incident, but there is no such mention in the F.I.R. which was lodged even after five hours of the alleged occurrence of the name of Ram dayal or that he witnessed the actual theft. Ashok Saxena does not say anything about the theft and has stated that the articles were lying at the house of the accused petitioner father. It can therefore, be said that there is no prima facie case of theft against the accused-petitioner, who is the wife of the complainant and who was living jointly with the complainant and is herself employed as a Senior Lecturer. There is also no material on record that the movable property alleged to have been removed by the accused petitioner is owned by the complainant. At any rate the facts and the evidence are such on which, in my opinion, it cannot be said that there are even remotest chances of the conviction of the accused petitioner. In Munna Swami's case (supra) their Lordships have observed in the last para that to determine whether there is sufficient ground for proceeding against an accused, the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said to be reasonably possible. Therefore, whether the evidence collected u/s 202 Cr. P. C. by the learned Magistrate and the statement of the complainant recorded u/s 200, Cr. P. C. is alone looked into, or it along with the evidence collected u/s 202 Cr. P. C. by the police officer on reference to him u/s 202, Cr. P. C. is looked into, it can hardly be said that there were any grounds for proceeding against the accused-petitioner under S. 380, IPC. 11. I am, therefore, of the opinion that it is a fit case in which the order taking cognizance and issuing process should be quashed to put an end to the mental agony which one suffers in all criminal prosecutions. 12. The application is therefore, accepted and the order of the learned Magistrate dated 18-5-79 taking cognizance of an offence u/s 380 IPC and issuing process u/s 204, Cr. P. C. is hereby quashed. 12. The application is therefore, accepted and the order of the learned Magistrate dated 18-5-79 taking cognizance of an offence u/s 380 IPC and issuing process u/s 204, Cr. P. C. is hereby quashed. In consequence thereof, the proceedings pending in the Court of the learned Magistrate in Criminal Case No. 13/79 are hereby quashed. *******