🖨️ Print / Download PDF

Smt. Laxmi Kishore Tonsekar Vs State of Maharashtra

Case No: Criminal Writ Petition No. 1609 of 1992

Date of Decision: Feb. 16, 1993

Acts Referred: Criminal Procedure Code, 1973 (CrPC) — Section 202, 93#Penal Code, 1860 (IPC) — Section 114, 34, 403, 406, 408

Citation: (1993) 2 ALT(Cri) 14 : (1993) 3 BomCR 65 : (1993) CriLJ 2772 : (1993) 1 MhLj 609

Hon'ble Judges: Ajit P. Shah, J

Bench: Single Bench

Advocate: A.P. Mundargi, for M/s. Jayesh J. Kanani and Pravina J. Kanani, for the Appellant; Mr. Palekar, Assistant Public Prosecutor, for the Respondent

Translate: English | हिन्दी | தமிழ் | తెలుగు | ಕನ್ನಡ | मराठी

Judgement

@JUDGMENTTAG-ORDER

1. Rule. Rule made returnable forthwith. Mr. Palekar, learned A.P.P., waives service. By consent, petition taken on board for final hearing.

2. Has a Magistrate jurisdiction to issue show cause notice to the accused when he holds an enquiry or investigation under S. 202 of the Cr.P.C.;

into a complaint of which he is empowered to take cognizance is the question raised in this petition.

3. The petitioner has filed a complaint on 28th May, 1992 in the Court of learned Metropolitan Magistrate, XXI Court, Bandra, Bombay against

(1) Kishore S. Tonsekar and (2) Manorama M. Tonsekar for the offences punishable under sections 403, 406 and 408 read with Sections 34 and

114 of the Indian Penal Code. The petitioner has also filed application under S. 93 of the Cr.P.C. for issuance of search warrant against the

accused. On 4th June, 1992, the learned Magistrate recorded the verification of the said complaint by examining the petitioner on oath. The

learned Magistrate then adjourned the case from time to time for arguments on the point of issue of process against the accused. On 22nd June,

1992, the learned Magistrate passed an order to issue show cause notices to the accused persons. The order passed by the learned Metropolitan

Magistrate reads as under :-

Complainant is the wife of accused No. 1 and daughter-in-law of accused No. 2. There is matrimonial dispute between accused and complainant

since 1984. There are other litigations pending in other courts also. Considering these above facts and allegations in the complaint to enquire the

said case under S. 202 of Cr.P.C. is necessary but instead of sending to police it is better to enquire court himself. So to take statements of the

accused are sufficient at the first instance hence issue show cause notice to both accused as why process should not be issued against them as

prayed by the complainant.

4. The petitioner challenged the abovesaid order passed by the learned Metropolitan Magistrate by filing Criminal Revision Application No. 264 of

1992 before the Sessions Court, Greater Bombay. The learned Additional Sessions Judge felt that the revision application filed by the petitioner

could not be heard without issuing notices to the accused as they were likely to be affected by the order passed in the revision application. The

learned Addl. Sessions Judge, therefore, directed the petitioner to join the said accused persons as party respondents in the revision application

and issue notices to them. As the petitioner''s Advocate declined to join the said accused as party respondents to the revision application, the

learned Addl. Sessions Judge found himself unable to hear, admit and decide the revision application and, therefore, under his order dated 3rd

November, 1992, the learned Addl. Sessions Judge dismissed the revision application before admission.

5. Mr. Mundargi, learned counsel for the petitioner, submitted that a person complained against is not entitled to take part in the enquiry or

represented by a pleader during the preliminary enquiry under S. 202 of Criminal Procedure Code. He further submitted that the accused has no

locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. The learned counsel criticised

the impugned order passed by the learned Magistrate as contrary to the express provisions of S. 202 of Cr.P.C.

6. The object of the chapter of the Code in which S. 202 appears is to prevent accused persons being harassed at all or asked to appear if in the

opinion of the Magistrate no prima facie case is made out; and the Code never contemplated that, at that stage, they should be either asked or

permitted to state their cases. A plain reading of S. 202 of Cr.P.C. shows that in case the Magistrate decides to postpone the issue of process

against the accused, and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he

thinks fit, the person complained against is not in picture at all. Such person is entitled to attend the preliminary enquiry like any other member of

the public, but he has not locus standi as party. Since the very question for considering being whether he should be called upon to face an

accusation, he has no right to take part in the proceedings, nor has the Magistrate any jurisdiction to permit him to do so. It is no doubt true that it

is the duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person,

but also with a view to bring to book a person or persons against whom grave allegations are made. But the question whether the complaint is

frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whether defence

the accused might have can only be enquired into at the trial. An enquiry under S. 202 of Criminal Procedure Code can in no sense be

characterised as a trial, for the simple reason that in law there can be but one trial for an offence. The limits of the enquiry under S. 202 of Cr.P.C.

have been circumscribed and the scope of the enquiry is restricted only to the ascertainment of the truth or falsehood of the complaint, i.e., for

ascertaining whether the material facts alleged by the prosecution are true or false, and the provisions of S. 202 of Cr.P.C. are not intended to

supersede the regular trial of the case by allowing the accused to make out his defence merely by alleging it without legal proof in support of his

allegation. The accused has absolutely no locus standi and is, therefore, not entitled to be heard on the question whether the process should be

issued against him or not.

7. In the case of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, , the Supreme Court held that the scheme of Chapter XVI of

Cr.P.C. shows that an accused person does not come into the picture at all till process is issued. Permitting an accused person to intervene during

the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part

in an enquiry in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , the Supreme Court observed as follows (Para 4) :-

The scope of the inquiry under S. 202 is extremely 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 facie 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, in proceedings under S. 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.

8. The practice of issuing notice to the accused u/s 202 is highly undesirable as it defeats the specific object of S. 202 and might prejudice the

accused if the complaint is not dismissed under S. 202. The practice of summoning an accused person at the stage has much greater dangers than

safeguards to the accused. He is obviously not bound to appear even if invited or give an opportunity of doing so. If he does not appear, it is likely

to weigh against him with the Magistrate, if he does not runs the danger of being committed to a statement of his case before he knows with any

definiteness what exactly is laid to his charge. The impugned order passed by the learned Magistrate issuing show cause notices to the accused is

thus clearly illegal and beyond the scope of S. 202 of Cr.P.C.

9. The learned Additional Sessions Judge dismissed the revision application of the petitioner only on the ground that the petitioner refused to join

the accused as party respondents to the revision application. In view of the fact that the accused persons had no locus standi to appear before

issuance of process, there was no need to join them as party respondents. Since the grievance of the petitioner-complainant was against the

issuance of show cause notices to the accused in an enquiry under S. 202 of Cr.P.C., the learned Addl. Sessions Judge was not justified in insisting

upon joining the accused in revision application. The persons mentioned as accused cannot be said to be prejudicially affected by reason any

direction for further enquiry under S. 202 of Cr.P.C. passed either by the Sessions Court or by the High Court. The learned Addl. Sessions Judge

was thus in error in dismissing the revision application.

10. The petition must, therefore, succeed. The order dated 22nd January, 1992, passed by the learned Metropolitan Magistrate, XXI Court,

Bandra, Bombay, in C.C. No. 59/Misc./92 and the order dated 3rd November, 1992, passed by the learned Addl. Sessions Judge, Greater

Bombay, in Criminal Revision Application No. 264/1992 are quashed and set aside. The learned Metropolitan Magistrate is directed to hear the

petitioner and thereafter pass appropriate orders on the complaint filed by the petitioner as well as application for search warrant in accordance

with law.

11. Petition allowed.