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2001 DIGILAW 1558 (AP)

Mikkilineni Venkateshwari v. Tummula Nirmala

2001-11-29

T.CH.SURYA RAO

body2001
T. SURYA RAO, J. ( 1 ) THE revision petitioners assail the order dated 20-11-2000 passed by the learned sessions Judge, Krishna Division at machilipatnam, in Crl. R. P. No. 7 of 2000. ( 2 ) THE revision petitioners were sought to be prosecuted initially by lodging a report against them by the first respondent herein for the alleged offences punishable under sections 120-B, 467, 471 and 471 (2) of the indian Penal Code. The Investigating Officer of Gudivada Taluq Police Station, who had registered the case as Crime No. 71 of 1999, eventually submitted his final report recommending for dropping of the proceedings on the premise that the matter was of a civil nature. On being served with notice, the first respondent-complainant having been aggrieved by the same, filed a complaint in the nature of protest petition in c. F. No. 6464 of 1999 before the Additional judicial Magistrate of First Class, Gudivada. The learned Magistrate after recording the sworn statement of complainant postponed the issue of process and conducted an enquiry under Section 202 of the Code of Criminal procedure ("the Code" for brevity ). After conducting an enquiry thus, he too came to the conclusion that the dispute between the complainant and the accused was purely of civil nature and, therefore, he dismissed the complaint by his order dated 04-01-2000. ( 3 ) HAVING been aggrieved by the said order, the complainant carried the matter in revision to the Sessions Court in Crl. R. P. No. 7 of 2000. Under the impugned order, the learned Sessions Judge allowed the revision petition and remitted the matter back to the Court of the Additional Judicial magistrate of First Class, Gudivada, for taking congnizance of the offence and to proceed with the case as per law. The present revision petitioners, who are not parties thereto, are now assailing the impugned order, as aforesaid. ( 4 ) THE parties are closely related. The complainant is no other than the daughter of the first accused and the sister of the second accused. The third accused is the husband of the second accused. It appears that A-l filed a civil suit in O. S. No. 760 of 1998 on the file of the Junior Civil Judge, Rangareddy district, against the complainant and others seeking partition of the properties and claiming l/6th share therein. The third accused is the husband of the second accused. It appears that A-l filed a civil suit in O. S. No. 760 of 1998 on the file of the Junior Civil Judge, Rangareddy district, against the complainant and others seeking partition of the properties and claiming l/6th share therein. She based her claim in the suit on a will dated 14-05-1993. The said suit is pending adjudication. Alleging that the said Will dated 14-5-1993 was a forged document and is sought to be used as a genuine one so as to claim a right over the properties,, the first respondent lodged the aforesaid report with Gudivada taluq Police Station. Thus, the Will dated 14-05-1993 said to have been executed by late m. Subramanyam - the husband of the first accused and the father of the complainant, is the subject matter of a civil suit as well as criminal complaint. Inasmuch as the said document was the basis for the civil action in the suit for partition, the Investigating Officer conveniently recommended the proceedings to be dropped on the premise that it was of a civil nature. The learned Magistrate too was of the same opinion. The present revision petitioners are not the parties to the revision petition in Crl. R. P. No. 7 of 2000. The learned sessions Judge addressed himself to the question whether the accused shall be arrayed as parties to the revisipn petition and came to a right conclusion that there was no need to add the accused as parties at that stage. ( 5 ) THE law is settled in this regard, that at the time of enquiry before taking cognizance of the case by the Magistrate, the accused as a matter of right cannot insist to participate in the proceedings. That question is not germane for consideration in this Revision case since it has not been argued by the learned senior Counsel for the revision petitioners in view of the settled legal position. It is now well settled that a given set of facts may give rise a civil profile as well as a criminal outfit. Each is an independent remedy and are not mutually exclusive. Therefore, on the premise that the matter assumes civil profile the parties cannot be denied of criminal prosecution. Even the second point addressed by the learned sessions Judge is unassailable. Each is an independent remedy and are not mutually exclusive. Therefore, on the premise that the matter assumes civil profile the parties cannot be denied of criminal prosecution. Even the second point addressed by the learned sessions Judge is unassailable. ( 6 ) THE only contention raised by the learned senior Counsel appearing for the revision petitioners is that while remitting the matter back, the learned Sessions Judge committed error in directing the Court below to take cognizance. In this connection, the learned senior Counsel invited my attention to Section 398 of the Code, which may be excepted hereunder thus:"398. Power to order inquiry.- On examining any record under Section 397 or otherwise, the High Court or the sessions Judge may direct the Chief judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further enquiry into any complaint which has been dismissed under Section 203 or subsection (4) of Section 204, or into the case of any person accused of an offence who has been discharged: provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. " ( 7 ) A perusal of the said Section shows that it is open to the Sessions Judge to direct a magistrate to make further enquiry into any complaint, which has been dismissed under section 203 of the Code. Directing the magistrate under the impugned order by the learned Sessions Judge to take cognizance of the matter is certainly one step forward to the requisite enquiry to be conducted and leaves no discretion to the Magistrate to satisfy himself about the truth or otherwise of the allegations. It becomes almost an empty formality for the Magistrate who has been directed to take cognizance of the offence. While remitting back the matter to the Court of Magistrate, the direction should have been left to consider the case afresh in the light of the observations made, if any inter alia, in the remand order. The contention of the learned senior Counsel in that view of the matter gains significance on bare perusal of the relevant provisions. While remitting back the matter to the Court of Magistrate, the direction should have been left to consider the case afresh in the light of the observations made, if any inter alia, in the remand order. The contention of the learned senior Counsel in that view of the matter gains significance on bare perusal of the relevant provisions. Therefore, the impugned order requires modification ,to that extent only. The other conclusions drawn by the learned Sessions Judge in the impugned order are impeccable. ( 8 ) IN the result, the Criminal Revision case is allowed and the impugned order dated 20-11-2000 passed by the learned sessions Judge, Krishna Division at machilipatnam, in Crl. R. P. No. 7 of 2000 is modified by setting aside the direction that the Magistrate shall take congnizance of the complaint while upholding the order of remand for fresh consideration in the light of the observations made by the learned sessions Judge.