Bombay High Court
Sau. Sangita W/O Ashok Borawar vs Sou. Surekha W/O Nandu Borawar on 3 August, 2010
Author: R.M. Borde
Bench: R.M. Borde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Revision Application No.187 of 2006,
Criminal Application No.2428 of 2006,
And
Criminal Application No.2429 of 2006.
Criminal Revision Application No.187 of 2006
1. Sau. Sangita w/o Ashok Borawar,
Aged about 29 years,
Occ. Household,
R/o Bramhanwada (Thadi),
Tahsil - Chandur Bazar,
District - Amravati.
2. Ashok s/o Kisanrao Borawar,
Aged about 36 years,
R/o Bramhanwada (Thadi),
Tahsil - Chandur Bazar,
District - Amravati.
3. Mahadeo Parose,
Aged about 26 years,
R/o Dahegaon (Purna),
Tahsil - Chandur Bazar,
District - Amravati.
4. Janardhan s/o Bapurao Nanhe,
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Aged about 40 years,
R/o Dhanora (Purna),
Tahsil - Chandur Bazar,
District - Amravati.
5. Sanjay s/o Bapurao Nanhe,
Aged about 30 years,
R/o Dhanora (Purna),
Tahsil - Chandur Bazar,
District - Amravati.
6. Sudhakar s/o Shamrao Nanhe,
Aged about 43 years,
R/o Padam Saurabh Colony,
Shegaon Road,
Amravati.
7. Prabhakar s/o Shamrao Nanhe,
Aged about 37 years,
R/o Padam Saurabh Colony,
Shegaon Road,
Amravati.
8. Sou. Sunita w/o Sudhakar Nanhe,
Aged about 33 years,
R/o Padam Saurabh Colony,
Shegaon Road,
Amravati.
9. Sou. Vaishali w/o Prabhakar Nanhe,
Aged about 30 years,
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3
R/o Padam Saurabh Colony,
Shegaon Road,
Amravati. ... Applicants
Versus
1. Sou. Surekha w/o Nandu Borawar,
Aged about 27 years,
R/o Rohana,
Police Station Pulgaon,
Tahsil - Arvi,
District - Wardha.
2. The State of Maharashtra. ... Non-Applicants
Criminal Application No.2428 of 2006
1. Namdeo s/o Bapurao Nanhe,
Aged about 48 years.
2. Sou. Parvati w/o Namdeo Nanhe,
Aged about 41 years.
3. Ratankumar s/o Namdeo Nanhe,
Aged about 19 years.
4. Archana d/o Namdeo Nanhe,
Aged about 24 years.
All R/o Khairi (Donoda),
Tahsil - Achalpur, District - Amravati. ... Applicants
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Versus
1. Sou. Surekha w/o Nandu Borawar,
Aged about 27 years,
R/o Rohana, P.S. Pulgaon,
Tahsil - Arvi,
District - Wardha.
2. The State of Maharashtra. ... Non-Applicants
Criminal Application No.2429 of 2006
1. Nandu s/o Narayan Borawar,
Aged about 29 years.
2. Narayan s/o Namdeo Borawar,
Aged about 59 years.
3. Sou. Kamal w/o Narayan Borawar,
Aged about 55 years.
All R/o Jawardi, Post - Paratwada,
Tahsil - Achalpur, District - Amravati. ... Applicants
Versus
1. Sou. Surekha w/o Nandu Borawar,
Aged about 27 years,
R/o Rohana, P.S. Pulgaon,
Tahsil - Arvi, District - Wardha.
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5
2. The State of Maharashtra. ... Non-Applicants
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Shri V.M. Deshpande, Advocate for Applicants.
Shri J.Y. Ghurde, Advocate for Non-Applicant No.1.
Smt. I.L. Bodade, APP for Non-Applicant No.2.
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Coram : R.M. Borde, J.
rd Dated : 3 August, 2010 Oral Judgment :
1. The order passed by the learned 2nd Ad hoc Additional Sessions Judge, Wardha, in Criminal Revision No.21 of 2006 as well as in companion revisions, being Criminal Revision No.42 of 2006 and Criminal Revision No.34 of 2006, is subjected to challenge in these matters. The Revisional Court, while dismissing the criminal revisions tendered by the accused, proceeded to allow the revision tendered by the respondent/complainant and further directed issuance of process against the original accused Nos.8 to 16 for offences punishable under Sections 494 and 109 read with Section 34 of the Indian Penal Code. The learned Trial Magistrate, while dealing ::: Downloaded on - 09/06/2013 16:14:15 ::: 6 with the complaint tendered by the respondent/complainant, had earlier directed issuance of process against original accused Nos.1 to 7 in view of the order passed on 2-2-2006. The Revisional Court has confirmed the order passed by the learned Magistrate and in addition thereto, was pleased to summon the remaining accused arrayed in the complaint.
2. Criminal Revision No.187 of 2006 is presented by the original accused Nos.8 to 16 raising exception to the order passed by the Revisional Court, whereas both the criminal applications, being Criminal Application No.2428 of 2006 and 2429 of 2006, are presented by the rest of the accused calling in question the order passed by the learned Magistrate directing issuance of process against them.
3. The complainant in the complaint tendered by her alleges that the marriage of the complainant with accused No.1 Nandu was solemnized on 7-5-1999. However, on account of matrimonial disputes, they started ::: Downloaded on - 09/06/2013 16:14:15 ::: 7 residing separate since 1-7-1999. It is alleged that accused No.1 Nandu entered into wedlock with accused No.2 Archana on 26-3-2001. The complainant thus alleges that accused Nos.1 and 2 have committed an offence punishable under Section 494 of the Indian Penal Code, as they entered into wedlock while the marriage of the complainant with accused No.1 Nandu was still subsisting. It is further alleged that the other accused named in the complaint have aided and abetted commission of offence by accused Nos.1 and 2.
4. On receipt of the complaint, the learned Magistrate was pleased to record the verification statement of the complainant and issue order directing police to investigate the matter and submit report in accordance with the provisions of Section 202 of the Code of Criminal Procedure. The learned Magistrate had also taken into account the documentary evidence placed on record by the complainant, which indicates that an issue was born out of the second wedlock. Thus it is clear that the learned Magistrate was ::: Downloaded on - 09/06/2013 16:14:15 ::: 8 satisfied that accused No.1 is residing with accused No.2 and an issue was born to them out of matrimonial relations. The police officials, on completion of the enquiry, submitted report on 21-6-2005 along with the papers of enquiry to the learned Magistrate. The police reported the learned Magistrate that there is no evidence available to substantiate the case put up by the complainant in the complaint. On consideration of the report tendered by the police and on perusal of the papers of investigation, the learned Magistrate did not concur with the police and directed issuance of process against accused Nos.1 to 7, calling upon them to answer the charge levelled by the complainant in respect of commission of offences punishable under Sections 494 and 109 read with Section 34 of the Indian Penal Code.
5. The order passed by the learned Magistrate on 2-2-2006 was subjected to challenge before the Revisional Court in three different revision applications tendered by the accused, so also the complainant challenged the order passed by the learned Magistrate on the ground of refusal by the ::: Downloaded on - 09/06/2013 16:14:15 ::: 9 learned Magistrate to take cognizance of the offence allegedly committed by accused Nos.8 to 16. The Revisional Court, on consideration of the revision applications tendered before it, has rendered decision as referred to in the above paragraphs and the said order passed by the Revisional Court is subject-matter of challenge in these matters.
6. I have heard the arguments advanced by the learned counsel appearing for the parties and perused the orders passed by the learned Magistrate as well as the Revisional Court. With the assistance of the learned counsel appearing for the parties, I have also gone through the record of the case.
7. The learned counsel appearing for the applicants in all these matters has vehemently contended that in fact there is no material placed on record by the complainant to proceed against the accused. It is contended that the material gathered by the police, if considered, so also the allegations ::: Downloaded on - 09/06/2013 16:14:15 ::: 10 levelled by the complainant in the complaint, if taken at their face value, do not make out any case against the accused. It is also contended that the discretion exercised by the learned Magistrate in directing issuance of process is arbitrary, as the same is based on either no evidence or on the material, which is wholly irrelevant. The learned counsel for the applicants contends that the statements of the witnesses cited by the complainant in the complaint recorded by the police do not make out any case against the accused. He pointed out that the complainant has made a reference to the names of five witnesses and amongst those witnesses, he has invited my attention to the statements recorded by the police in respect of witnesses Onkarrao Pachare, Bhanudas Nanhe, Subhash Wankhede and Kisanrao Solanke, contending that those very witnesses cited by the complainant do not support the case of the complainant. It is also contended that there is no evidence in respect of solemnization of marriage at Tirthkshetra Hanuman Mandir, Amravati. It is thus contended that the material collected by the police is not sufficient to proceed against the accused, so also on bare ::: Downloaded on - 09/06/2013 16:14:15 ::: 11 perusal of the complaint, no case can be said to have been made out against the accused.
8. Another ground of attack by the learned counsel for the applicants is non-consideration of the report of the police and failure by the learned Magistrate to record reasons for her disagreement with the report of the police while passing the impugned order. It is contended by the learned counsel for the applicants that although the police have reported that there is no material available to implicate the accused in the crime, the learned Magistrate has chosen not to rely upon the police report and proceeded to direct issuance of process against accused Nos.1 to 7. The learned counsel for the applicants contended that in such circumstances, it was obligatory for the learned Magistrate to record reasons for her disagreement with the police report or at least she should have made a reference to the police report in the order. It is contended that on perusal of the order passed by the learned Magistrate, it shows non-application of mind by the learned Magistrate to ::: Downloaded on - 09/06/2013 16:14:15 ::: 12 the record of the case and as such the impugned orders passed by the learned Magistrate as well as the Revisional Court need to be quashed and set aside.
9. The learned counsel appearing for the applicants has placed reliance on the judgment in the matter of Suhas Balkrishna Desai and others v. Chandrakant Ramchandra Parab and others, reported in 2001(1) Mh.L.J. 328, and contended that it was incumbent upon the learned Magistrate to record reasons in respect of her disagreement with the police report. He contends that the absence of reasons shows non-application of mind by the learned Magistrate. It is to be noted that the matter before the Court was one arising out of an enquiry under Section 156(3) of the Code. In the facts and circumstances of that case, the Court proceeded to observe that it was desirable for the learned Magistrate to record reasons. The scope of enquiry under Section 202 of the Code of Criminal Procedure is different than the one under Section 156(3) of the Code. Even otherwise, there cannot be any mandate requiring the learned Magistrate to record reasons in respect of his ::: Downloaded on - 09/06/2013 16:14:15 ::: 13 disagreement with the police report. It is only in the cases where the learned Magistrate proceeds to dismiss the complaint by taking recourse to Section 203 of the Code, he is required to record reasons. The reliance placed on the aforesaid reported decision is misplaced.
Same is the case with the decision rendered in the matter of Vidya Kuldip Raj Kohil v. State of Maharashtra and another, reported in 2002(2) Mh.L.J. 830, wherein the learned Single Judge has recorded that the order passed by the learned Magistrate not only suffers from non-application of mind, but the same appears to have been passed with extraneous considerations. In the facts and circumstances of that case, the Court felt need on the part of the learned Magistrate to record reasons in respect of his disagreement.
10. The learned counsel appearing for the respondent/complainant while supporting the order passed by the Revisional Court, contended that there is sufficient material brought on record requiring the learned Trial ::: Downloaded on - 09/06/2013 16:14:15 ::: 14 Magistrate to take cognizance of the offence. It is contended that the very purpose of enquiry under Section 202 of the Code of Criminal Procedure is to provide aid to the Magistrate in arriving at a decision as to whether the case is one which may lead to full-length trial. The scope of enquiry under Section 202 of the Code of Criminal Procedure is quite restricted and it is always open for the Magistrate to apply his mind to the record of the case and to adopt a different view. It is not incumbent upon the Magistrate to accept the report of the police nor law mandates recording of reasons by the Magistrate in the event of his exhibition of disagreement with the report tendered by the police. It is sufficient in the facts and circumstances of the case that reasonable inference could be drawn on perusal of order of magistrate as regards application of mind to the record by the Magistrate. It is contended that the learned Magistrate has applied her mind to the record of the case and has proceeded to issue order summoning accused Nos.1 to 7.
It is contended that reasonableness or sufficiency of the reasons recorded by the learned Magistrate cannot be a matter of challenge before the Revisional ::: Downloaded on - 09/06/2013 16:14:15 ::: 15 Court or the High Court. The learned counsel for the respondent/complainant contends that it is not open for the superior Courts to probe in the reasons recorded by the learned Magistrate and to arrive at a different conclusion. At the stage of issuance of process, the accused have no role to play and the adequacy of the material available with the Magistrate for taking cognizance or reasonableness of the reasons recorded by the Magistrate while summoning the accused cannot be a matter of scrutiny by the higher Courts, at the instance of the accused.
11. Law prescribes different modes, which are available with the Magistrate, in respect of proceeding further in the matter on receipt of a complaint. A Magistrate can order investigation under Section 156(3) of the Code of Criminal Procedure at a pre-cognizance stage, that is to say, before taking cognizance under Section 190 of the Code of Criminal Procedure, and where a Magistrate decides to take cognizance under the provisions of Chapter XIV of the Code of Criminal Procedure, he is not entitled in law to ::: Downloaded on - 09/06/2013 16:14:16 ::: 16 order investigation under Section 156(3) of the Code, though in cases not falling within the proviso to Section 202 of the Code, he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code. Where a Magistrate chooses to take cognizance, he can adopt any of the following alternatives : (a) he can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 of the Code and record the evidence of the complainant or his witness, (b) the Magistrate can postpone the issue of process and direct an enquiry by himself, or (c) the Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. Where a Magistrate orders investigation by the police before taking cognizance under ::: Downloaded on - 09/06/2013 16:14:16 ::: 17 Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Code, as described above.
12. This raises a question as to whether taking cognizance by the Magistrate is within the contemplation of Section 190 of the Code of Criminal Procedure. As has been analyzed in the decisions rendered by the Apex Court in several matters, when the Magistrate, on receipt of a complaint, orders investigation by police taking recourse to Section 156(3) of the Code in respect of cognizable offences, he does so at a pre-cognizance stage. The Magistrate, however, on receipt of the complaint and after applying his mind, can either straightway proceed to record the verification statement of the complainant and direct issuance of process or may postpone the issuance of process and direct either investigation by police or ask the complainant to produce his evidence before him. When the ::: Downloaded on - 09/06/2013 16:14:16 ::: 18 Magistrate acts in accordance with the provisions of Section 202 of the Code, he issues the directions on taking cognizance of the complaint. The order passed by the Magistrate under Section 202 of the Code either requiring the complainant to place his evidence before the Court or direct investigation and report by police is the order at a pre-cognizance stage. It is appropriate to refer to the decision rendered by the Apex Court in this regard. In the matter of Devarapalli Lakshminarayana Reddy and others v.
Narayana Reddy and others, reported in AIR 1976 SC 1672, the Apex Court has observed in para 14 as under :
"14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear ::: Downloaded on - 09/06/2013 16:14:16 ::: 19 that a case can be said to be instituted in a Court only when the Court takes cognizance of the offences alleged therein. The ways in which such cognizance can be taken are set out in clauses (a),
(b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police ::: Downloaded on - 09/06/2013 16:14:16 ::: 20 under Section 156(3), he cannot be said to have taken cognizance of any offence."
13. So far as the scope of Section 202 of the Code is concerned, various High Courts in catena of decisions have examined the significance of Section 202 of the Code and the Apex Court, while dealing with the matter of Mohinder Singh v. Mohinder Pal and others, reported in AIR 1992 SC 1894, has observed in para 11 of the judgment as under :
"The scope of enquiry under S. 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under S. 204 of the Code or whether the complaint should be dismissed by resorting to S. 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if ::: Downloaded on - 09/06/2013 16:14:16 ::: 21 any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under S. 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjuding the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under S. 202 of the Code. To say in other words, during the course of the enquiry under S. 202 of the Code, the Enquiry Officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on regular trial and that no detailed enquiry is called for during the course of such enquiry. Vide Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, (1961) 1 SCR 1 : (AIR 1960 SC 1113) and Pramatha Nath Talukdar v. Saroj Ranjan, 1962 Supp (2) SCR ::: Downloaded on - 09/06/2013 16:14:16 ::: 22 297 : (AIR 1962 SC 876)."
14. Taking resume of the judgments cited above, it would be quite clear that the scope of enquiry while taking recourse to Sections 156(3) and 202 of the Code is different and the Magistrate is invested with the power to deal with both the situations differently. As has been made clear in the catena of decisions, the scope of enquiry under Section 202 of the Code is only to ascertain the truth or falsehood made in the complaint on the basis of the material placed by the complainant before the Court for limited purpose of finding out whether a prima facie case for issue of process has been made out. The Magistrate is required to form an opinion without adverting to any probable defence the accused may have.
15. Turning to the facts of the instant case, though it is contended that the material placed on record is insufficient to take cognizance of the offence, this Court while exercising powers under Section 482 of the Code ::: Downloaded on - 09/06/2013 16:14:16 ::: 23 has to scrutinize the material bearing in mind the limitations in respect of causing interference and also the desirability to probe into the material placed on record at the initial stage of issuance of process. It cannot be controverted that the accused has no role to play in an enquiry at the stage of issuance of process. It is matter between the complainant and the Court. So far as the sufficiency of the material for proceeding with the matter is concerned, it is for the Magistrate to scrutinize the record and reach the conclusion. The sufficiency or otherwise of the material placed on record before the Magistrate while the Magistrate issues order for proceeding with the complaint and directs issuance of process cannot be a matter of in-depth scrutiny at the hands of the higher Courts. What is required to be seen is that on perusal of the complaint and on the basis of the material placed on record, prima facie without adverting to the probable defence that may be available to the accused, whether a case is made out for proceeding further.
In the instant matter, although it has been pointed out that the witnesses cited in the complaint by the complainant do not wholly support her case, the fact ::: Downloaded on - 09/06/2013 16:14:16 ::: 24 remains that the complaint itself contains the allegations, which constitute an offence. On perusal of the record of the Trial Court, it transpires that the police during the course of investigation have recorded the statements of the witnesses related to the complainant and they have stated above the factum of second marriage of accused no.1 with accused No.2. Apart from these aspects, there are few affidavits filed on record before the Magistrate by certain witnesses, who have made the grievance in respect of investigation in the matter. The complaint is made by at least three witnesses, who states that the police have not recorded the statements according to their versions and the statements of the witnesses have been recorded so as to shield the offenders. Taking into consideration all the material, in all probabilities, the Magistrate decided to proceed against a few accused. As stated above, there cannot be any in-depth scrutiny of the material collected by the Investigation Officer, which led the Magistrate to form her opinion in respect of desirability to proceed further in the matter.
::: Downloaded on - 09/06/2013 16:14:16 ::: 2516. A reference can be made to the judgment of the Apex Court in the matter of Smt. Nagawwa v. Veeranna Shivlingappa Konjalgi and others, reported in (1976) 3 SCC 736, wherein the scope of enquiry under Section 202 of the Code has been considered by the Apex Court. The relevant observations made in paragraphs 3 and 4 read as under :
"3.
In Chandra Deo Singh v. Prakash Chandra Bose this Court had after fully considering the matter observed as follows :
The courts have also pointed out in these cases that what the magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be ::: Downloaded on - 09/06/2013 16:14:16 ::: 26 only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.
Indicating the scope, ambit of Section 202 of the Code of Criminal Procedure this Court in Vaddilal Panchal v. Dattatraya Dulaji Ghadigaonker observed as follows :
Section 202 says that the magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained ::: Downloaded on - 09/06/2013 16:14:16 ::: 27 against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint, in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage;
for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial."
4. It would thus be clear from the two decisions of this ::: Downloaded on - 09/06/2013 16:14:16 ::: 28 Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (I) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima face 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 it is well settled that 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.
The Apex Court has further laid down the principles in respect of causing interference by the higher Courts in the matter calling in question orders in respect of issuance of process. Those are quoted in para 5 of the judgment, ::: Downloaded on - 09/06/2013 16:14:16 ::: 29 which read as under :
"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
3. where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
4. where the complaint suffers from fundamental legal ::: Downloaded on - 09/06/2013 16:14:16 ::: 30 defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."
17. It is contended by the learned counsel for the applicants that the material collected by the police and perused by the learned Magistrate as well as the allegations contained in the complaint taken at their face value are not sufficient to proceed against the accused. However, as stated above, I am of the opinion that this is not a case wherein there is absolutely no material to proceed against the accused. The sufficiency or otherwise of the material cannot be a matter of enquiry by the Trial Court. In the same judgment (Smt. Nagawwa v. Veeranna Shivlingappa Konjalgi and others), referred to above, the Apex Court has observed, "Whether the reasons were good or bad, sufficient or insufficient, is not a matter which could have been examined by the High Court in revision". The principle enunciated by the Apex Court in the aforesaid judgment equally applies to the decision rendered by the Revisional Court in these matters. The Revisional Court has ::: Downloaded on - 09/06/2013 16:14:16 ::: 31 exceeded its jurisdiction in causing interference in the order passed by the Magistrate by directing issuance of process against accused Nos.8 to 16.
The Magistrate on consideration of the material has formed an opinion that there is sufficient material to proceed against accused Nos.1 to 7 only. It was not open for the Revisional Court to probe further and record a contrary opinion. The order passed by the Revisional Court is in excess of jurisdiction vested in him. The order passed by the Revisional Court, therefore, needs to be quashed and set aside.
18. For the reasons set out above, Criminal Revision No.187 of 2006 presented by accused Nos.8 to 16 stands allowed and the order passed by the Revisional Court on 22-6-2006 is quashed and set aside. Rule is made absolute accordingly.
Criminal Applications Nos.2428 and 2429 of 2006 stand ::: Downloaded on - 09/06/2013 16:14:16 ::: 32 dismissed. Rule is discharged in the concerned criminal applications.
Judge.
pdl ::: Downloaded on - 09/06/2013 16:14:16 :::