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2003 DIGILAW 330 (AP)

Vidavaluru Balaramaiah v. State Of A. P.

2003-03-03

K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THIS petition is filed under Section 482 of the Code of Criminal Procedure to quash the proceedings in P. R. C. No. 59/2002 on the file of the learned Additional Judicial I Class Magistrate, Kovur, Nellore District. ( 2 ) THE brief facts that are necessary for the disposal of the petition are that on 24-8-2002 while the 2nd respondent-complainant was coming from a tailor shop, A1 gagged her mouth and dragged her to a nearby house, that A1 removed her saree and torn her blouse, that on hearing her cries, Padmamma came there on seeing whom A1 fled away, that thereafter the complainant lodged a complaint with the police on 25-8-2002 and obtained acknowledgment, that again on 1-9-2002 at 8. 00 p. m. , when the complainant was present in her house, A2 and A3 trespassed into her house and stated that they would pacify the incident that had taken place on 24-8-2002 between her and A1. that when the complainant did not agree to the same, A2 and A3 abused her in the name of her caste, that while they tried to commit rape on her, she raised cries, that on hearing her cries, some of the witnesses rushed there, that then A2 and A3 fled away from there, that thereafter she lodged a complaint with the police, but did not take any action against A2 and A3, and hence she lodged a private complaint under Section 190 (1) (a) Cr. P. C. for offences under Sections 323, 447 and 376 read with Section 511 of the Indian Penal Code and Sections 3 (1) (X) and 3 (2) (V) of the S. Cs. and S. Ts. (Prevention of Atrocities) Act, 1989 before the learned Additional Judicial I Class Magistrate, Kovur. After perusing the allegations in the complaint and the statements of the witnesses recorded, the learned Magistrate came to the conclusion that there were sufficient grounds to proceed against the accused, and took cognizance of the offences under Sections 323, 448 and 354, IPC and Section 3 (1) (X) of the S. Cs. and S. Ts. (P. A.) Act in P. R. C. No. 59/2002 and issued non-bailable warrants to the accused. To quash the said P. R. C. , the accused filed the present petition. and S. Ts. (P. A.) Act in P. R. C. No. 59/2002 and issued non-bailable warrants to the accused. To quash the said P. R. C. , the accused filed the present petition. ( 3 ) LEARNED counsel for the petitioners contended that without calling for a report as required under Section 210, Cr. P. C. taking cognizance of the offence is bad in law. ( 4 ) UNDER Section 210, Cr. P. C. a Magistrate has to call for a report when an investigation by police is in progress in relation to the offence which is the subject matter of the complaint. So, there is nothing improper in the Magistrate taking cognizance of the offence when investigation in respect of the same offence is not in progress. ( 5 ) IT is the specific allegation of the 2nd respondent in the complaint that she gave reports to the police in respect of both the incidents, but she was not aware whether the police had registered any case or not in respect of the first incident. With regard to the second incident, it is specifically stated that the police did not initiate any action against the accused and, therefore, the complaint was filed. So, calling for a report by the learned Magistrate under Section 210, Cr. P. C. does not arise in the present case. ( 6 ) LEARNED counsel for the petitioners relied upon Shantibhai Somabhai v. Madhukant, 1983 Cri LJ 62, and Birendra Kumar Sharma v. State of Bihar, 2000 Cri LJ 145. In Shantibhai (supra) it is held that where in respect of the same offence the matter is under investigation by police, issue of process on the strength of the complaint is illegal. But, in the case on hand, there is no such investigation. In Birendra Kumar s case (supra) basing on the complaint given by the complainant therein, the case was registered and therefore the complaint case was stayed and a report was called for from the police officer. But in the present case, the police did not register the case at all. Therefore, those two decisions cited by the learned counsel for the petitioners have no application to the facts of the present case. ( 7 ) THE next contention raised by the learned counsel for the petitioners is that taking cognizance by the Magistrate after examining the witnesses is illegal. Therefore, those two decisions cited by the learned counsel for the petitioners have no application to the facts of the present case. ( 7 ) THE next contention raised by the learned counsel for the petitioners is that taking cognizance by the Magistrate after examining the witnesses is illegal. For this contention, he relied upon a decision in Nitin v. Bhimani v. A. R. Basu, 1995 Cri LJ 1974 wherein it is held that it is mandatory provision of Section 200, Cr. P. C. that cognizance be taken first and thereafter the complainant and his witnesses present examined later. ( 8 ) SECTION 200, Cr. P. C. reads that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Proviso to this Section makes it clear that examination of the complainant and his witnesses is not necessary when the complaint is made in writing by a public servant or the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 of the Code. Sections 200 to 203, Cr. P. C. lay down the procedure to deal with the complainants made by private persons. If a Magistrate takes cognizance of the offence on a complaint, he must (i) examine on oath the complainant (even though the complaint is in writing) and the witnesses present, if any, and (ii) reduce the substance of such examination to writing. If cognizance is taken, he is bound first to examine on oath the complainant and his witnesses, if any, and thereafter he may issue process if he thinks that a prima facie offence is made out, or may dismiss the complaint under Section 203, Cr. P. C. ( 9 ) SECTION 202, Cr. P. C. makes it clear that any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer, for the purpose of deciding whether or not there is sufficient ground for proceeding. Sections 200 and 202 of the Code have to be read in juxtaposition as they have got to be. If these two provisions are read together, it is clear that there is no bar of taking cognizance after examination of the witnesses. The object of provisions of Section 202, Cr. P. C. is to enable the Magistrate to form an opinion whether process should be issued or not. Therefore, it is elementary that if it is not possible for the Magistrate to take cognizance of the offence on the existing materials, he can direct an inquiry under Section 202, Cr. P. C. If the materials existing are sufficient, there is no impediment for the Magistrate to take cognizance and issue process against the accused without holding such inquiry. If the Magistrate has any doubt about the existence of prima facie case, he ought not to take cognizance of the offences and at that stage it is within his jurisdiction to direct an inquiry under Section 202, Cr. P. C. Therefore, in my considered opinion, taking cognizance after examining the witnesses and the complainant cannot be said to be illegal. In view of the clear mandate under Section 202, Cr. P. C. , with great respect, I am unable to agree with the proposition laid down by a single Judge of the Calcutta High Court in Nitin v. Bhimani (supra), because it serves a purpose of preliminary inquiry before issue of process and also enables the Court to control the proceedings in deciding whether or not there are sufficient grounds for proceeding further. ( 10 ) THE next contention raised by the learned counsel for the petitioners is that issuance of non-bailable warrants straightaway by the learned Magistrate is illegal. On this aspect, it is pertinent to refer to Section 204, Cr. P. C. which deals with issuance of process. If a prima facie case has been made out, the Magistrate may issue a warrant if it is a warrant case. So as per law, if it is a warrant case, the Magistrate can issue a non-bailable warrant straightaway. ( 11 ) IT is further contended by the learned counsel for the petitioners that the learned Magistrate took cognizance of two different incidents on a single complaint and therefore the learned Magistrate has committed an illegality. ( 12 ) NO doubt, under Section 218, Cr. ( 11 ) IT is further contended by the learned counsel for the petitioners that the learned Magistrate took cognizance of two different incidents on a single complaint and therefore the learned Magistrate has committed an illegality. ( 12 ) NO doubt, under Section 218, Cr. P. C. for every distinct offence, of which any person is accused, there shall be a separate charge, and every such charge shall be tried separately. The offences are distinct when they are in no way concerned with each other. Therefore, a separate charge is required for every distinct offence. ( 13 ) IN this case, though two incidents on two different dates have taken place, the second incident is in pursuance of the first incident so as to form the same transaction, and, therefore, trying the accused for two different offences on a single complaint would not per se be a ground to quash the proceedings. ( 14 ) LASTLY learned counsel for the petitioners contended that the A1 belongs to S. C. community and, therefore, the offence under the S. C. and S. T. Act has no application to A1. Whether A1 belongs to S. C. community or not has to be decided after trial only, because at this stage there is no material filed to show that A1 belongs to S. C. community. ( 15 ) THERE is no dispute about the proposition of law laid down in S. N. Palanitkar v. State of Bihar, 2002 (1) ALT (Crl) 219 and Vishwa Nath v. 1st Munsif Lower Criminal Court, 1989 Cri LJ 2082 (All) which are relied upon by the learned counsel for the petitioners, that if no prima facie case is made out on the statements of the complainant and the witnesses, process should not be issued. In the present case, the allegations in the complaint would clearly go to show that prima facie, offences under Sections 323, 448 and 354, IPC and Section 3 (1) (X) of the S. Cs. and S. Ts. (P. A.) Act are made out. For the foregoing reasons, this is not a fit case to quash the proceedings, and hence the petition is liable to be dismissed. ( 16 ) IN the result, the petition is dismissed. Petition dismissed.