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2004 DIGILAW 1132 (AP)

Sadi Srinivasa Reddy v. Sadi Rama Devi

2004-10-04

B.SESHASAYANA REDDY

body2004
B. SESHASAYANA REDDY, J. ( 1 ) THIS Criminal Petition is directed to quash the proceedings pending against the petitioner-accused in C. F. No. 1445 of 2003 on the file of the V Metropolitan Magistrate court, Vijayawada, which was forwarded by the Judge of the Family Court, Vijayawada vide Order dated 29-12-2003 (wrongly mentioned as 28-12-2003 ). ( 2 ) THE petitioner is the accused and the respondent is the complainant in C. F. No. 1445 of 2003. The respondent filed the complaint before the Family Court, Vijayawada under sections 340 and 195 (1) (b) of the Criminal procedure Code seeking the following relief:"therefore, the complainant humbly prays the Hon ble Court to receive the complaint on file and deal with the matter as per law as is enshrined in section 340 and 195 (1) (b) of the criminal Procedure Code in the interest of justice. " ( 3 ) THE learned Judge of the Family Court forwarded the complaint to the V Metropolitan magistrate, Viayawada for taking necessary action. Assailing the Order passed by the judge of the Family Court on 29-12-2003, this Criminal Petition has been filed by the petitioner-accused. ( 4 ) HEARD learned counsel for both the parties. ( 5 ) LEARNED counsel for the petitioner- accused submits that the learned Judge of the Family Court without recording a specific finding as contemplated under Section 340 of Cr. P. C. , forwarded the complaint mechanically and therefore, the impugned order is required to be set aside. ( 6 ) CHAPTER XXVI of the Criminal Procedure code deals with the provisions as to offences affecting the administration of justice. Under section 340 Cr. P. C. , the concerned Court has to record a finding before the complaint is being forwarded to the Magistrate for taking necessary action. It is useful to refer to section 340 of Criminal Procedure Code. "340. Under section 340 Cr. P. C. , the concerned Court has to record a finding before the complaint is being forwarded to the Magistrate for taking necessary action. It is useful to refer to section 340 of Criminal Procedure Code. "340. Procedure in cases mentioned in Section 195: (1) When, upon an application made to it in this behalf or otherwise, any court is of opinion that is expedient in the interests of justice that an inquiry should be made not any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in the Court, such Court may, after such preliminary enquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make complaintthereof in writing; (c) sent it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in a any case where that Court has neither made a complaint under sub-section (1) in respect of that offence no rejected an application forthe making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making is a High court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this section, "court has the same meaning as in Section 195. " ( 7 ) IT is explicit from the above referred provision that the Court must conduct a preliminary inquiry and thereafter, if the Court thinks it necessary, record a finding to that effect and forward the complaint to the concerned Magistrate of Firsts Class having jurisdiction, for necessary action. " ( 7 ) IT is explicit from the above referred provision that the Court must conduct a preliminary inquiry and thereafter, if the Court thinks it necessary, record a finding to that effect and forward the complaint to the concerned Magistrate of Firsts Class having jurisdiction, for necessary action. In the case on hand, no such preliminary inquiry has been conducted by the Judge of the Family court before forwarding the complaint to the v. Metropolitan Magistrate, Vijayawada for taking necessary action, ( 8 ) THEREFORE, the impugned Order is set aside and the matter is remanded back to the judge of the Family Court, Vijayawada to make a preliminary inquiry as contemplated under Section 340 of the Criminal Procedure code. Accordingly, this Criminal Petition is allowed.