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1988 DIGILAW 35 (GAU)

Abdul Hannan v. Ghanashyam Talukdar

1988-03-10

S.N.PHUKAN

body1988
This is an application under section 482 Cr. P.C. for quashing the proceeding in case No. 420-C/86 pending before the Court of the Judicial S Magistrate, Barpeta. 2. This is the third time that this matter has come before this Court. The Opp. Party filed a complaint petition against the present petitioners under sections 344/365/211/506/34 I.P.C. alleging that his minor daughter was kept wrongfully confined by present petitioners for the purpose of marrying her against her will by petitioner No.l. Atone stage, the learned trial Court issued Search Wa rant for recovery of the girl and against that order this Court in Criminal Revision 138 of 1986 I by an order dated 10.4.86 held that as the sole object was for securing the appearance of the girl Smti. Anurupa, a direction on said Smti. Anurupa to appear before the learned trial Court would be sufficient. With the above direction, the petition was disposed of. From the record, it appears that the learned trial Court on the complaint filed by the present opp. party instead of issuing process decided to make an enquiry under section 202 Cr. P.C. This matter again came up before this Court and by an order dated 24.4.87 passed in Criminal Revision I of 1987, this Court directed that the learned Magistrate to continue the enquiry under Section 202 Cr. P.C after setting aside the orders of the learned trial Court as well as learned Sessions Judge. The present petition has been filed as stated above for quashing the entire proceeding. 3. It is admitted at the Bar that the enquiry under section 202 Cr. P.C. is still pending, so only point for consideration is whether at this stage the present petitioners have any locus-standi to approach this Court for quashing the entire proceeding and whether this Court by exercising its inherent power can quash the said proceeding. 4. Following the ratio laid down by the Apex Court in Smti. Nagiwa v. Veeranna Shivalingappa Konjalgi. A.I.R. 1976 S.C. 1947,1 am of the opinion that the scope of enquiry under Section 202 Cr. P.C. is limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint on the materials placed by the comp­lainant before the Court and the Court has to find out whether a prima facie case for issue of process has been made out. P.C. is limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint on the materials placed by the comp­lainant before the Court and the Court has to find out whether a prima facie case for issue of process has been made out. The Court has to decide the above question purely from the point of view of the comp­lainant without at all adverting to any defence that the accused may have. In a proceeding under section 202 Cr. P.C. 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. 5. Mr. Sen, learned counsel for the petitioner has drawn my atten­tion to the decision of the Apex Court in Dr. S. S. Khanna v. Chief Secretary, Patna, (1983) 3 S.C.C. 42 . On perusal of the law laid down in the above decision by their Lordships, I am of the opinion that this decision does not support the prayer of the petitioner for quashing the proceeding. Their Lordships held that an enquiry under section 202 Cr.P.C. is not in the nature of a trial, for a trial can commence only after process is issued to the accused and proceeding under section 202 are not strictly proceedings between the complainant and the accused. It was also held that a person against whom a complaint is filed does not become an accused until it is decided to issue process against him. It was further held by their Lordships that even if the accused participates in such a proceeding, he does so not as accused but as a member of the public. It was also held that the object of the inquiry under Section 202 Cr. P.C. is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person comp­lained against or whether it is a baseless one on which no action need be taken. 6. From the language of Section 202 Cr P.C., it is clear that any inquiry or investigation under the aforesaid Section is for the purpose of deciding whether or not there is sufficient grounds for proceeding Section 203 Cr. 6. From the language of Section 202 Cr P.C., it is clear that any inquiry or investigation under the aforesaid Section is for the purpose of deciding whether or not there is sufficient grounds for proceeding Section 203 Cr. P.C. provides that if after considering the statements on both of the complainant and of the witnesses and the result of the inquiry or investigation under Sec. 202 Cr. P.C., the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the comp­laint after briefly recording the reasons for doing so. The present proceeding under Section 2v 2 Cr.P.C. is still continuing and no process has been issued. As the present petitioners have no locus standi in such a proceeding under the aforesaid Section, they have no right to approach this Court for quashing the proceeding. That apart, no criminal pro­ceeding has yet been started as Magistrate has not come to the finding that a prima facie case against the petitioners has been made out and as such question of quashing any criminal proceeding at this stage cannot arise. I am, therefore, of the opinion that the present petition at this stage is not maintainable and is liable to be rejected, which I hereby do, 7. Mr. Sen, learned counsel for the petitioners has stated that during the course of inquiry, the learned trial Court has issued a search warrant for recovery of the girl Smti. Anurupa and the said order is. illegal. I find considerable force in the submission of Mr. Sen for the reasons that while disposing of Criminal Revision 1/87 this Court indi­cated the materials to be considered by the learned trial Court in the proceeding under Section 202 Cr. P.C. That apart, this Court while disposing of Criminal Revision 138 of 1986 directed the learned trial Court to issue notice for appearance of Smti. Anurupa for her appearance. I am, therefore, of the opinion that the issue of search warrant in the course of inquiry under Section 202 Cr.P.C is not called for and if such warrant has been issued, the learned trial Court is directed to recall the said warrant. 8. For the reasons stated above, I find no merit in the present peti­tion and it is dismissed with the observations made above. The rule is discharged. Interim order,, if any, stands vacated. 8. For the reasons stated above, I find no merit in the present peti­tion and it is dismissed with the observations made above. The rule is discharged. Interim order,, if any, stands vacated. Let the records be sent to the learned lower Court for immediate disposal according to law.