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2003 DIGILAW 272 (AP)

Bagadi Narasinga v. Kinjarapu Varaprasad

2003-02-19

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner submitted a complaint to the Court of Judicial Magistrate of Fir st Class, kotabommali, against A-l to A-51, alleging that on 12-7-2001 when the election to the office of the MPTC, Harish Chandrapuram mandal Parishad, was in progress, the accused formed into unlawful assembly holding stout sticks and country bombs, entered into the polling booth and hurled two such bombs. It was alleged that at the instigation of A-l, A-3 to A-5 again hurled country bombs in order to commit murder of the Complainant. The petitioner further alleged that on account of these acts of the accused, the voters in the queue ran away and his polling agent was dragged out. ( 2 ) THE trial court recorded the statements of P. Ws. 1 and 2. On not being satisfied that there exists a prima facie case, it dismissed the complaint through its order dated 5-12-2001. Hence, this revision. ( 3 ) THE learned counsel for the petitioner submits that the trial court proceeded as though it was necessary for the petitioner herein to establish the case or prima facie case at that stage and since it was not established, the Complaint was dismissed. He submits that at the stage of taking cognizance of the offence, the Court was required to examine as to whether the material before it disclosed prima facie case and the question of proving and establishing any case at that stage by the petitioner does not arise. ( 4 ) HEARD the learned Public Prosecutor. ( 5 ) THIS Court entertained a doubt as to whether it is necessary to hear the accused who are arrayed as respondents 1 to 51 before any order could be passed in this revision. The learned counsel for the petitioner placed before me a judgment of this Court in Madgula sathavva v. State of A. P. wherein it was held that during the course of an enquiry under section 202 of Cr. P. C. , the accused does not come into picture and he need not be heard at that stage. The learned counsel for the petitioner placed before me a judgment of this Court in Madgula sathavva v. State of A. P. wherein it was held that during the course of an enquiry under section 202 of Cr. P. C. , the accused does not come into picture and he need not be heard at that stage. Since the present order was passed at the stage of examination of the complaint under Section 202, the matter is one between the complainant and the Court and no interest can be said to have accrued or no prejudice can be said to have been caused to the accused at that stage. Therefore, it is not necessary in law to put the accused on notice while dealing with the order passed by the trial court dismissing the complaint. ( 6 ) COMING to the merits of the matter, the petitioner claims that he was one of the candidates for the office of MPTC of Harish chandrapuram Mandal Parishad, for which election was held on 12-7-2001. According to him, the accused formed themselves into an unlawful assembly, by holding sticks and country made bombs. He has categorically pleaded that the bombs were hurled twice and the object of the same was to kill him. Apart from that, he has alleged that his Polling agent was dragged out and an attempt was made to beat him also. In his statement recorded by the trial court, the petitioner herein reiterated the contents of the complaint. ( 7 ) WHILE examining the application under section 202, the trial Court is required to examine as to whether the Complaint as well as the sworn statements disclose any case of which cognizance can be taken. The verification will be as to existence of a prima facie case. The further verification in the form of investigation will be undertaken by the investigating agency on the direction by the Court. It is not at all permissible for the court to go deeper into the matter. Two more stages are reserved for such purpose, viz. , investigation on being referred by the Court and trial before the Court. If the Court is to examine the Complaint, as though it is pronouncing on merits, nothing remains to be done at latter stage. It is not at all permissible for the court to go deeper into the matter. Two more stages are reserved for such purpose, viz. , investigation on being referred by the Court and trial before the Court. If the Court is to examine the Complaint, as though it is pronouncing on merits, nothing remains to be done at latter stage. ( 8 ) THE Supreme Court in Rashmi Kumar v. Mahesh Kumar Bhada held that at the stage of taking cognizance of the offence, the Court is required only to consider the averments made in the complaint or charge-sheet and does not require to sift and appreciate the evidence at that stage. ( 9 ) IN the present case, having referred to the contents of the Complaint, the trial Court took the view that certain material witness was not examined, certain procedure prescribed under the Representation of peoples Act was not followed. Ultimately it held as under:-"here the complainant failed to establish prima facie against the accused. "the very approach of the trial Court was contrary to the established principles of law. The question of complainant establishing prima facie case against the accused at that stage did not arise. The observation of the trial Court was only on the basis that certain witnesses were not examined. A full bench of this Court in G. Subba Naidu v. Talluri mahalakshmamma held that it is not at all necessary for a complainant to examine all the witnesses at the initial stage. ( 10 ) IN the given case the complainant will be well advised not to examine all the witnesses and reserve some to be examined at the stage of trial. The trial Court could have recorded a finding as it did, only at the trial and not at the stage of taking cognizance of the offence. ( 11 ) VIEWED from any angle, the order under revision cannot be sustained and the same is accordingly set aside. The trial Court is directed to take cognizance of the offence and proceed with the trial of the matter in accordance with law. ( 12 ) THE Crl. R. C, is accordingly allowed.