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1985 DIGILAW 545 (KAR)

ESHWARAPPA v. GANGAWWA

1985-12-09

M.S.PATIL

body1985
M. S. PATH, J. ( 1 ) THE accused have filed this petition under section 482 of the Code of Criminal Procedure questioning the legality and correctness of the order dated 27-4-1984 passed by the Sessions Judge, Raichur in Cr. R. P. No. 87 of 1983, whereby he has set aside the order dated 26- 10-1983 of dismissal of the complaint passed by the J. M. F. C. , Yelburga in Private Complaint No. 6 of 1982, and directed to issue process against all the accused persons and dispose of the case on merits in accordance with law. ( 2 ) COUNSEL for the petitioner argued, not only the Sessions Judge has committed error in interfering with the order of dismissal of the complaint made by the Magistrate, but he has also materially erred in directing to issue process against the accused persons. He submitted, the only proper order that could have been made by the Sessions Judge was to make further inquiry into the complaint dismissed and not direct issue of process. There is sufficient force in the later part of the contention advanced by the learned counsel for the petitioner. As provided under section 398 Cr. P. C. , the only appropriate order that could have been made by the Sessions Judge was to make further inquiry into the complaint dismissed. However it appears, the Sessions Judge was justified in setting aside the order of dismissal passed by the Magistrate for various reasons; because the learned Magistrate had adopted some sort of hybrid procedure while dismissing the complaint as may be presently noticed. The facts of the case leading to the dismissal of the complaint and giving rise to this petition are like this: - ( 3 ) THE respondents Smt. Gangawwa and Smt. Eramma filed a complaint before the Magistrate alleging commission of various offences punishable under the Penal Code. The Magistrate, without taking cognizance of the offence alleged in the complaint, referred the complaint to the police as provided under section 156 (3) Cr. P. C. for investigation. The Police registered a case and took up investigation and after investigating the case submitted a. B summary report. The Magistrate, without taking cognizance of the offence alleged in the complaint, referred the complaint to the police as provided under section 156 (3) Cr. P. C. for investigation. The Police registered a case and took up investigation and after investigating the case submitted a. B summary report. On the protest memo filed by one person stated to be holder of general power of attorney, the Magistrate proceeded to record the sworn statement and after considering the sworn statement of the complainant and the witnesses, the Magistrate being of the opinion that the dispute was of civil nature dismissed the complaint. On revision, the learned Sessions Judge has allowed the revision and remitted the complaint back to the Magistrate, as stated above, the correctness of which is sought to be challenged in this petition. ( 4 ) FROM a cursory glance over the order passed by the Magistrate, it is quite clear that while making the order of dismissal the Magistrate has not only referred to the sworn statements of the witnesses, but also taken into consideration materials placed before him by the police along with the B summary report. He has thus committed an error in making the order. In cases where the complaint is referred to police under Section 155 (3) Cr. P. C. for investigation and the police submit B summary report or TCT summary report stating that the allegations are false or no offences are disclosed or because the dispute is of civil nature, three courses are open to the Magistrate. (1) Accept the report; (2) refuse to accept the report and take cognizance of the offences if any disclosed on the very report; or (3) direct the police to make further investigation. In the last mentioned case, the original complaint referred to police being still under investigation, there is no occasion for making a protest or accepting the same or treating the protest as fresh complaint for taking cognizance on the complaint. In the second mentioned case, the Magistrate having taken cognizance on the report of the police, the procedure to be followed in making the inquiry and trial will be as in the case instituted on the police report. In the second mentioned case, the Magistrate having taken cognizance on the report of the police, the procedure to be followed in making the inquiry and trial will be as in the case instituted on the police report. It is only in the first mentioned case, when the Magistrate is inclined to accept the report and the complainant protests to such acceptance and undertakes the responsibility of proving the offences, the Magistrate may take cognizance of the offences alleged in the complaint, proceed to record the sworn statement of the complainant and witnesses, if any, present and either issue process or make inquiry himself under Section 202 Cr. P. C. before dismissing or issuing the process, as the case may be. In either case for dismissing the complaint or issuing the process, the only material available to the Magistrate will be the allegations in the complaint and sworn statement of the complainant and his witnesses, if any, examined and such of the documents, if any, produced by the complainant with the complaint or protest memo or during his examination or examination of the witnesses. The material produced with the report of the police cannot be taken into consideration unless brought on record in accordance with law during examination of the complainant or his witnesses during enquiry under section 202 Cr. P. C. The Magistrate has not only taken into consideration the sworn statement of the complainant, but other material and documents produced by the police with the B summary report, which appears to have weighed more in the mind of the Magistrate, while making the order of dismissal of the complaint. Therefore, the procedure followed by the Magistrate in making the order of dismissal being wholly irregular, the order of dismissal passed by the Magistrate could hot be sustained. Besides, another mistake committed by the Magistrate is that although the complaint was filed by two persons, he has proceeded to dismiss the complaint without recording the sworn statement of other complainant. Where complaint is filed by more than one person, no order of dismissal of complaint could be made without examining all the complainants. Besides, another mistake committed by the Magistrate is that although the complaint was filed by two persons, he has proceeded to dismiss the complaint without recording the sworn statement of other complainant. Where complaint is filed by more than one person, no order of dismissal of complaint could be made without examining all the complainants. ( 5 ) IN the result, the petition is allowed and that portion of the order passed by the Sessions Judge directing to issue process is set aside and the matter is remitted back to the Magistrate to dispose of the complaint in accordance with law and in the light of the observations made above. Petition allowed.