1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 17 OF 2011 (Pandurang Ganpat Pawar .vs. State and anr.) ................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................ CORAM : A.P. BHANGALE, J. DATED : 12th July, 2011. Heard Mr.A.P.Tathod, Adv. for the applicant, Mr.M.K.Pathan, A.P.P. for respondent no.1 and Mr.V.D.Darne, Adv. for respondent no.2. By this application u/s. 482 of the Code of Criminal Procedure, the applicant has prayed for quashing and setting aside the order dt. 16.10.2010 passed by the Additional Sessions Judge, Yavatmal in Criminal Revision Application No.52 of 2010 whereby the revision application was allowed and the order dt.20.4.2010 passed by the learned trial Magistrate below Exh.1 in Summary Criminal Case No.542 of 2010 was set aside. It appears that the learned trial Magistrate had perused the complaint, verification in support thereof by the complainant on oath and record of the case and recorded his satisfaction as to prima facie case being made out against the accused and issued process against the accused for the offence punishable u/s. 500 of the 2 Indian Penal Code. The order passed by the trial Magistrate on 20.4.2010 was questioned in Criminal Revision No.52 of 2010. The Additional Sessions Judge appears to have observed that the learned Magistrate did not apply her judicious mind to the facts of the case. It appears that the learned Additional Sessions Judge made reference to the ruling in the case of Satish @ Rajendra s/o. Harbans Tiwari and Ors. vs. State of Maharashtra and another reported in 2010 ALL MR (Cri) 2055 . It was observed by this Court in para 9 of the said ruling that “ the enquiry contemplated by Section 202 of the Code of Criminal Procedure in relation to the accused residing outside the territorial jurisdiction has to be a good, satisfactory and sufficient enquiry.” It is also observed that “ by merely going through the averments in the complaint and verification statement, it cannot be said that the Magistrate had held enquiry as contemplated by amended provision of Section 202 of the Code of Criminal Procedure.” In that case, it was further observed that “ the learned Magistrate did not see the amended provisions of Section 202, but proceeded to issue process in ignorance of the said amended provisions of law.” Section 202 of the Code of Criminal Procedure reads thus : 3 “Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may , if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] 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 or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding; Provided that no such direction for investigation shall be made, - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: 4 Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. “ The Magistrate is bound by duty to enquire into the case himself or direct an investigation to be made by Police Officer or such other person as he thinks fit in order to satisfy himself as to whether there is sufficient ground to proceed further or not. It is discretion of the learned Magistrate concerned if he thinks fit to take evidence of witnesses on oath. Provided that, in a serious case triable exclusively by the Court of Session, the complainant ought to be called upon to produce his witnesses and examine them on oath. The amendment made to Section 202 vide Amendment Act, 2005 guards against false complaints filed merely to harass the accused. It is the object of law to see that innocent persons are not harassed unnecessarily by unscrupulous 5 persons. Therefore, it is necessary for the Magistrate concerned to find out whether there is sufficient ground to proceed further against the accused by issuance of process or summoning the accused. This Court in a latest ruling in the case of ASR Systems Pvt. Ltd., New Delhi and anr. vs. Kimberly Clark Hygiene Products Pvt. Ltd., Mann and anr. reported in 2011 (4) Mh.L.J. 275, observed in para 4 thus : “.........The purpose of directing enquiry under section 202, Criminal Procedure Code is to avoid unnecessary inconvenience and harassment to the accused persons, who may be living outside territorial jurisdiction of the Court. However, where the contents of the complaint, verification statement and other documents produced along with the complaint make out prima-facie case for issuance of process, perusal of such material itself is preliminary enquiry and if the Court is satisfied that prima facie case is made out, process can be issued”. Perusal of Section 202 of the Code of Criminal Procedure gives discretion to the learned Magistrate concerned to satisfy himself as to whether there is 6 sufficient ground to proceed further. The Magistrate may, if he thinks fit, take evidence of witnesses on oath for the purpose of such satisfaction before issuance of process. The provision, in my opinion, is enabling and directory in nature. The important aspect of enquiry is satisfaction as to sufficiency of grounds to proceed further. In Adalat Prasad .vs. Rooplal Jindal and Ors. reported in 2004 (4) Mh.L.J. 274 the three Judges Bench of the Apex Court observed that “ it is satisfaction of the Magistrate either by examination of the complainant and witnesses or by the enquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint.” Looking into the rulings cited above, it is clear that the learned Magistrate concerned is required to decide whether the complaint discloses sufficient grounds to proceed further. It is a preliminary stage when the Magistrate becomes conscious and aware of the allegations made and verification statement recorded in support of the complaint of the complainant along with the copies of documents annexed with the complaint on the record of the case. At that preliminary stage, it is not necessary for the Magistrate to pre-judge and decide as to whether the complaint has disclosed commission of offences or as to proof thereof. Application of mind by the Magistrate at the preliminary stage is with a view to 7 proceed further u/s. 200 and subsequent sections and if he is satisfied about sufficient grounds to proceed, the process may be issued u/s. 204 of the Code of Criminal Procedure. In view of this position of law, it appears that the learned Additional Sessions Judge committed an error of law in setting aside the order passed by the Magistrate on the ground that the same was passed without applying judicious mind to the facts of the case and the law applicable thereto. In my opinion, the learned J.M.F.C. Court No.6, Yavatmal has satisfied himself as to existence of prima facie case against the accused in order to issue process against the accused upon material perused and therefore, the order dt.4.5.2010 ought not to have been set aside in exercise of revisional jurisdiction. Hence, the impugned judgment and order passed by the learned Additional Sessions Judge, Yavatmal dt.16.10.2010 in Criminal Revision No.52 of 2010 is set aside. The order passed by the J.M.F.C. Court No.6, Yavatmal, dt.24.5.2010 stands restored. The application is allowed accordingly. JUDGE jais