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1991 DIGILAW 187 (MAD)

D. NAGENDRAPPA v. H. PATHAPPA

1991-02-27

M.M.MIRDHE

body1991
Judgment :- M.M. MIRDHE, J. ( 1 ) THIS Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr. P. C. by the petitioners praying to set aside the order issuing process against them dated 12-10-1990 passed by the. M. F. C. Hiriyur, in C. C. No. 1075 of 1990 on his file. ( 2 ) I have heard learned counsel for the petitioners and the learned counsel for the respondent fully and perused the records of the case. ( 3 ) THE respondent had filed a private complaint under Section 200 of Cr. P. C. , alleging that the petitioners are guilty of the offence punishable under Section 494, IPC. ( 4 ) THE learned Magistrate took cognizance of the offence and thereafter recorded the sworn statement of the complainant and his two witnesses and came to the conclusion that there is a prima facie case for the alleged offences and there are grounds to issue process against these petitioners. Being aggrieved by the said order this revision is preferred by the petitioners. ( 5 ) THE learned counsel for the petitioners contended that no offence is disclosed either in the complaint or in the sworn statement of the complainant and his two witnesses and therefore the learned Magistrate was not justified in passing the impugned order. 5. 1 He has further contended that there is no averment made in the complaint as to what are the ceremonies or formalities that were followed by Respondent-1 and Respondent-2 at the time of the alleged marriage. 5. 2 He has also contended that in the absence of such a material in the complaint and also in the sworn statements of the complainant and his two witnesses, no offence is disclosed and therefore this Court will be justified in quashing the impugned order and the proceedings initiated by the Magistrate against them. ( 6 ) SECTION 204 of Cr. P. C. , which deals with the issue of process, lays down that if in the opinion a of the Magistrate for taking cognizance of officer, there is sufficient ground for proceeding, he may issue summons or warrant, as the case may be. ( 6 ) SECTION 204 of Cr. P. C. , which deals with the issue of process, lays down that if in the opinion a of the Magistrate for taking cognizance of officer, there is sufficient ground for proceeding, he may issue summons or warrant, as the case may be. ( 7 ) THE learned counsel for the petitioners relied on AIR 1976 SC 1947 - Smt. Nagawwa v Veeranna, a classic Judgment - where their lordships of the Supreme Court have dealt in detail regarding the powers of the High Courts under Section 482 of Cr. P. C. , to quash the proceedings. In that ruling their Lordships have held as follows: "at the stage of issuing process the magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one. " (emphasis supplied) 7. 1 The Supreme Court has also laid down, as to what is the scope of Section 202 of Cr. P. C. , as follows: "the scope of the inquiry under Section 202 is extremely limited only to the ascertainment of the truth or falsehood of the alterations made in the complaint - (i) on the materials placed by the complaint before the Court; ii) for the limited purpose of finding out whether a prima facie 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, 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. " 7. In fact, 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. " 7. 2 Their Lordships have further held as follows: "it is true that in coming to a decision as to whether a process should be issued, the magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led in by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and the establishment of a prima facie case against him. The Magistrate has been given undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion, if" is not for the High Court or even the Supreme court to substitute its own discretion for that of the Magistrate or to examine case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under section 204. " (emphasis Supplied) ( 8 ) THE considerations for issue of process against the accused under Section 204 of Cr. P. C. are quite different from the grounds for conviction of the said accused person for the offence alleged against him. The Magistrate is not required at the stage of enquiry under Section 202 to assess the material placed before him from the angle to see as to whether it will be sufficient for the conviction of the accused. ( 9 ) THE learned counsel for the petitioner relied on AIR 1979 SC 848 - Lingari Obulamma v Venkata Reddy and Others, wherein it has been held as follows: "that the second marriage contracted by the accused is not proved to be a legally valid marriage and the existence of custom neither mentioned in the complaint nor proved or the law applicable to it and therefore the accused cannot be convicted under section 494 of IPC. " this ruling will not come to the aid of the petitioners because it was a ruling laid down b) the Supreme Court in a case where the prosecution had let in the evidence and the accused were convicted for the offences alleged against them, as pointed out by the Supreme Court itself in the ruling in AIR 1976 SC 1947 , quoted above, the grounds for the issue of process by the magistrate under Section 202 of Cr. P. C. against the accused are different from grounds on which the accused can be convicted in the trial. Therefore, the ruling of the Supreme Court reported in AIR 1979 SC 848 will not come to the aid of the petitioners in this case as the Magistrate has not convicted the petitioners but has only ordered for issue of process against them for the offence punishable under Section 494 of IPC. ( 10) THE learned counsel for the petitioners further relied on two decisions of this Court, namely, (i) 1978 (1) Kar.. 432 -Bhoopal rayappapatilvmudradeviand Others; and (ii) ILR 1978 Kar. 926 -Hanamappa Laxmappa hittalamani v Laxmavva and Others. In the former decision this Court has observed as follows: "at the stage of issuing process, the magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and that he is only to prima facie satisfy himself whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate at that stage to enter into a detailed discussion of the merits or demerits of the case. At this stage the accused has no locus standi to bring in his defence. All that the High court is concerned at this stage is to find out whether the discretion used by the learned Magistrate has been used properly and not arbitrarily or capriciously. " in the latter case this Court has held as under: "recording of statements of the complainant and the witness or witnesses of the complainant on oath under Section 200 of the Criminal Procedure Code is for the purpose of finding out as to against whom process is to be issued. " in the latter case this Court has held as under: "recording of statements of the complainant and the witness or witnesses of the complainant on oath under Section 200 of the Criminal Procedure Code is for the purpose of finding out as to against whom process is to be issued. If, on examining so the Magistrate is unable to pin point the concerned accused persons so as to issue process against them, he may postpone issuance of process and hold an enquiry under Section 202 of the Code and proceed according to the provisions of that Section. If process is issued the trial in such cases proceeds as per the provisions of Section 244 and onwards of the Code. Therefore, to contend that the material available in the statements of the complainant and the witnesses at the stage of taking cognizance under Section 200 of the Code is not sufficient to establish the offence is not proper and is premature. Such evidence can be adduced during the trial which commences as per Section 244 of the Criminal Procedure code. " ( 11 ) THE learned counsel for the petitioners also relied upon two orders of this Court, namely (i) Cr. R. P. No. 156 of 1990 and (ii) Cr. R. P. No. 104 of 1987. ( 12 ) I have gone through both the orders. Aruling of the Supreme Court has been considered by the learned Judges during the course of those orders in the light of the facts of those cases. No law as such has been made in those cases. Each case will have to be decided on its own fact. The court will have to see whether the Magistrates order issuing process against the accused is justifiable on the facts and circumstances of each case. ( 13 ) I have gone through the impugned order. There is no illegality or irregularity has been committed by the learned Magistrate while taking cognizance and proceeding further in the case. The statements of the complainant and his two witnesses make out a prima facie case for issue of process and the learned Magistrate has exercised his discretion properly in the matter. It will not be proper for the Court to substitute its discretion in the place of the Magistrates discretion to find out whether there are materials which will lead to the conviction of the petitioners in this case. It will not be proper for the Court to substitute its discretion in the place of the Magistrates discretion to find out whether there are materials which will lead to the conviction of the petitioners in this case. Hence I make the following order: no merit in this petition. Not admitted. Hence rejected.