THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 1866 of 2009 Date: 16.11.2009 Between: Smt. Valli .. Petitioner/Complainant And Mahammad Iqbal and others. .. Respondents/Accused. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 1866 of 2009 Order: This revision has been filed challenging the order dated 25.07.2009 passed by the learned Judicial Magistrate of First Class, Pakala, in R.C.S. No.19 of 2009, whereby and whereunder the complaint filed by the petitioner herein was dismissed. The brief facts of the case are as follows. The petitioner herein filed a complaint on 03.03.2008 alleging that respondents 1 to 6 herein and others trespassed into her land, pushed her aside and damaged the vegetable garden and when they reported the matter to the Mandal Revenue Officer, the Mandal Revenue Officer also scolded her and did not take any action. Then they reported the matter to the police and the police also have not taken any action. It is also alleged that respondent No.4 herein threatened her. On the next day, the respondents came along with 100 persons with two JCBs bearing Nos.AP 26 NT/R 9272 and AP 26 DT/R 9267 and damaged 65 neem trees, 69 mango trees and 15 other trees. It is also alleged that though a civil suit in O.S. No.412 of 2009 is pending on the file of the Civil Judge, District Court, Chittoor, the respondents trespassed into her land and damaged the trees and planted garden. The said complaint was forwarded to the police for investigation and report. On receipt of the said complaint on 21.04.2008 a case in Crime No.54 of 2008 was registered at Pakala Police Station and after investigation the police filed a report to treat the case as mistake of fact. On receipt of referred notice, the complainant filed her objections. The statements of the complainant and her witnesses LWs.2 to 7 were recorded. Then the learned Magistrate called for a report from the Tahsildar, Pakala to know the procedure that was followed by the Tahsildar for resumption of land, and the Tahsildar, Pakala, submitted a report along with required documents. The learned Magistrate observed that though the complainant and her witnesses alleged that the revenue personnel entered into their land and damaged vegetable plants and also their house, but they did not specify the names of the persons who damaged their house property and further the report of the Tahsildar, Pakala and the documents filed by him reveal that the Tahsildar, Pakala had resumed the land by following due procedure. The learned Magistrate also observed as follows. “Though the complainant contended that the Sy.No.2756/1B1 and 2756/1B2 is not Government land and they are not assigned or DKT lands, no notices are served on them is not reliable in view of the report of the Tahsildar and documents filed by him. Therefore, I believe that the revenue authorities followed due procedure for resumption of land and the alleged trespass, damage, hurt and criminal intimidation are not reliable. Hence, I find no grounds to proceed further in this case.” With the above said observations, the complaint was dismissed. Challenging the said order, this revision has been filed. The main contention of the learned counsel for the petitioner is that at the stage of enquiry under Section 200 Cr.P.C the Magistrate has to examine the statements of the complainant and the witnesses produced by her and to decide whether to take cognizance of the alleged offence or not there is no procedure to call for a report from the Tahsildar and to examine such report. It is also argued that the learned Magistrate has no power and jurisdiction to call for a report from the Tahsildar at the stage of taking cognizance. The only point that arises for consideration is whether the Magistrate is empowered to call for a report from the Tahsildar at the stage of taking cognizance of the alleged offence. In this case, the learned Magistrate seems to have ordered investigation by the police before taking cognizance under Section 156(3) Cr.P.C. The police filed a report to treat the case as mistake of fact. Then the complainant herself was examined as a witness and she had examined another six witnesses on her behalf. The scope of enquiry under Section 202 Cr.P.C is extremely limited. The Court has to examine the material placed by the complainant before it for the limited purpose of finding out whether a prima facie case for issue of process has been made out or not. The question whether to take cognizance of the alleged offence or not has to be decided from purely the point of view of the complainant without at all adverting to the defence. In such a proceeding accused has no locus standi to be heard. No full fledged enquiry or trial is contemplated at that stage. In deciding the question whether the complaint should be dismissed or not the Magistrate is not to be influenced by any outside material (See Chandra Deo Singh v. Prokash Chandra Bose[1]). An order of dismissal of complaint is to be made on judiciously sound principles. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. The Magistrate is not debarred at this stage from going into the merits of the evidence produced by the complainant. But the object of such consideration of the merits of the case at that stage could only be to determine whether there are sufficient grounds for proceeding further or not (See D.N. Bhattacharjee v. State of West Bengal[2]). If a bare perusal of the complaint or the evidence produced in support of the case of the complainant shows that the essential ingredients of the offence alleged are absent, or that the dispute is of civil nature or that there are such patent absurdities in the evidence produced that it would be a waste of time to proceed further, the complaint can be dismissed. Of course it is to be verified whether the act complained of and the official duty are required to be so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty. However a public servant who does not purport to act in discharge of official duties but merely uses his official position to do an illegal act cannot claim the benefit of Section 197 Cr.P.C. In the circumstances, it appears that the learned Magistrate has committed irregularity in calling for report from the Tahsildar, Pakala and in relying on such report for dismissing the complaint. Therefore, the impugned order is liable to be set aside. Accordingly, the Criminal Revision Case is allowed and the impugned order is set aside. The matter is remanded to the lower Court with a direction to consider only the material placed by the complainant and to examine whether such material is sufficient to take cognizance of the alleged offence or not and proceed in accordance with law. ______________________ B. CHANDRA KUMAR, J. Date: 16.11.2009 Nsr [1] AIR 1963 SC 1430 [2] AIR 1972 SC 1607