Dilip Kumar Kundu and Others vs Madan Ch. Dey and Another

S.B. Sinha, J.—This application u/s 482 of the Code of Criminal Procedure, wherein prayer has been made on behalf of the Petitioners to quash an order dated 14.9.1989 passed by Sri R.D. Singh, Judicial Magistrate Jamshedpur in Complaint Case No. 146/89, has been referred to Division Bench by a learned Single Judge of this Court in view of conflict in some observations made in the case of Sureshwar Saran v. State of Bihar 1980 BLJ 493 and Arvind Kumar Sinha and others Vs. The State of Bihar and others, on interpretation of Section 192 of the Code of Criminal Procedure ''in a situation when the Chief Judicial Magistrate transferred the case to another Magistrate for enquiry''.

Before proceeding to consider the points involved in this case, the fact of the matter may be noticed.

A complaint petition was filed by the opposite party No. 2 in the court of Additional Chief Judicial Magistrate, Jamshedpur alleging therein that the complainant got her daughter married with Nirup Kundu in the year 1986, who started ill treatment with his wife after the said marriage. Nirup Kunda compelled her wife to write letters to her parents for further dowry which amounted up to Rs. 50000/-. It is further alleged that in 1987 and 1988 the daughter of the complainant gave birth to two children. It was further alleged that the complainant sent lawyer''s notice to the accused persons, and on 13.6.89, all the accused persons came to the house of the complainant, criminally tresspassed his house gave threat to the complainant to pay the dowry of Rs. 50000/- within one week and got some papers signed by the complainant.

By an order dated 14.6.1939, the Additional Chief Juddical Magistrate, Jamshedpur transferred the case to the court of Sri P.C. Choudhary, Judicial Magistrate, for enquiry upon perusal of the complaint petition and registering the same.

It appears that the complainant was examined on oath by the transferee court. Before the transferee court, two other witnesses Durga Rani Devi and Jayanti Kundu were also examined.

By an order dated 14.9.1989, the transferee court after discussing the evidence on record held as follows:

From the above, it appears to be a prima facie case u/s 498(A), 386, 342 and 452/34 of the Indian Penal Code. The complainant is hereby directed to file requisite within a week for issuance of summon to the accused persons. Put up on 4.10.89 for appearance.

Mr. Gopal Choudhury, learned Counsel appearing for the Petitioner made two-fold submissions in support of this application.

Firstly, the learned Counsel contended that the impugned order dated 14.9.1989 passed by the transferee Magistrate is illegal inasmuch as the Additional Chief Judicial Magistrate had no jurisdiction to transfer the case in purported exercise of his power conferred upon him u/s 192 of the Code of Criminal Procedure without taking cognizance of the offence. learned Counsel contended that the cognizance is taken by a Magistrate only when the complainant is examined on solemn affirmation. learned Counsel submitted that this would be apparent from the provisions contained in Section 200 of the Code of Criminal Procedure.

In support of this contention, learned Counsel relied upon Cooli Gangadharam and Ors. v. State of Andhra Pradesh 1975 Cr. L.J. 1574; Jitan Tewari v. State of Bihar and Anr. 1982 BLJ 658.

learned Counsel next contended that in any event, the complaint petition as also evidences, even if given face value and taken to be correct in their entirety, do not make out any offence as against the Petitioner inasmuch as from a perusal of the complaint petition as also the evidences on record, it would be evident that the allegations have been made primarily as against the accused No. 1 meaning thereby the husband of the daughter of the complainant Nirup Kundu.

Mr. P.C. Roy, learned Counsel appearing on behalf of the complainant-opposite party No. 2 and Mr. K.K. Jhunjhunwala, learned Counsel for the State on the other hand, contended that in the instant case the learned Additional Chief Judicial Magistrate must be held to have taken cognizance of the case inasmuch as he applied his mind by perusing the complaint petition.

Mr. Roy further submitted that for the purpose of taking cognizance, it is not necessary to examine the complainant on solemn affirmation which would be evident from proviso (b) appended to Section 200 of the Code of Criminal Procedure.

Learned Counsel further submitted that even an administrative transfer is permissible.

Learned Counsel in this connection relied upon Gopal Das Sindhi and Ors. v. State of Assam and Ors. AIR 1961 SC 986 ; R.R. Chari Vs. The State of Uttar Pradesh, Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, Tula Ram and Others Vs. Kishore Singh, .

It was further contended that from a perusal of the complaint petition as also the statement of the complainant on oath, it would appear that evidences have been led on behalf of the complainant in support of the allegations made in the complaint petition and materials have been brought on record for issuing summons as against the Petitioners and in that view of the matter, the order dated 14.9. 1987 passed by Sri P.C. Choudhury Judicial Magistrate, Jamshedpur, whereby and where-under the direct issuance of summons upon the Petitioners cannot be said to be illegal and without jurisdiction.

Before proceeding further it may be mentioned that at the outset, the learned Counsels contended that apparently there is no conflict in the decisions of this Court in Sureshwar Saran v. State of Bihar 1980 BLJ 490; Arbind Kumar Sinha v. State of Bihar reported in 1990 B.B.C.J. 142 : Arvind Kumar Sinha and others Vs. The State of Bihar and others,

What is meant by cognizance in view of several decisions of the Supreme Court of India is no longer res Integra. Sections 190, 192, 200 read as follows:

190: Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2) may take cognizance of any offence:

(a) upon receiving a complaint of facts. which constitute such offence ;

(b) upon a police report of such facts ;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

Making over of cases to Magistrates : (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate o f the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and'' thereupon such Magistrate may hold the inquiry or trial.

Examination of complainant : A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses:

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistare makes over the case for inquiry or trial to another Magistrate u/s 192:

Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

From a bare perusal of Section 192 of the Code of Criminal Procedure, it is evident that the Chief Judicial Magistrate cannot transfer a case to another court either for "enquiry or trial unless he takes cognizance of the offence. There cannot be any doubt that when a Magistrate before whom a complaint petition is filed examines the complainant on solemn affirmation, cognizance of the offence alleged must be held to have been taken by the Magistrate.

However, does that mean that in view of Section 200 of the Code of Criminal Procedure which casts a duty upon the Magistrate before whom a complaint petition is filed must examine the complainant on solemn affirmation before he can be said to have taken cognizance of the offence? The answer to the aforementioned question must be rendered in the negative.

A Magistrate takes cognizance of an offence when he applies his mind to the allegations made in the complaint petition. However, whether in a given case, the question as to whether he has applied his mi ad or not has to be gathered from the materials on records,

There cannot be any doubt whatsoever that examination of the complainant on solemn affirmation is not a condition precedent for taking cognizance by a Magistrate,

In terms of the proviso (b) to the second proviso appended to Section 200 of the Code of Criminal Procedure, there cannot be any doubt that it is permissible for a court to take cognizance of an offence even without examining the complainant on solemn affirmation as otherwise, there was no reason as to why the Parliament inserted clause (b) in the first proviso which provides that in a case where the case is transferred u/s 192 of the Code of Criminal Procedure, such examination of the complainant on solemn affirmation will not be required.

Second proviso appended to Section 200 of the Code of Criminal Procedure also states that if the Chief Judicial Magistrate, has already examined the complainant on solemn affirmation and has examined other witnesses, the transferee court need not examine them again.

In this view of the matter, there cannot be any doubt that examination of the complainant on solemn affirmation or examination of any other witnesses produced by the complainant cannot be said to be condition precedent for taking cognizance.

This aspect of the matter can be judged from another angle.

Issuance of summons by a Magistrate without examining the complainant on solemn affirmation is merely an irregularity and the same does not vitiate an order taking cognizance. In Janki Sao Vs. The State of Bihar and Others, a Division Bench of this Court in which one of us, S.B. Sinha J. was a member held as follows:

There can not, however, be any doubt whatsoever that non-examination of the complainant on solemn affirmation Is merely an irregularity, which is curable under the provisions of the Code of Criminal Procedure. In Sudama Singh v. Ravindra Narain Singh reported in 1973 BLJR 66 a Division Bench of this Court, after taking into consideration various decisions has held as follows:

In this case, as I have said above, it is not disputed that the Magistrate who took cognizance of the offence did not examine the complainant on oath nor did Shri Jha, the transferee Magistrate, do so. The issuing of this process, therefore, without the examination of the complainant on oath was in violation of the law prescribed in Section 200 of the Code. The violation may not vitiate the trial, but it cannot be allowed to remain when it comes to the notice of this Court at the appropriate time as in this case.

Sudama Singh''s case (supra) has been followed by this Court in Jiwachh Jha and Ors. v. Narayan Jee Jha and Ors. 1973 BLJR 592.

It appears that a learned Single Judge of this Court in Arvind Kumar Sinha and others Vs. The State of Bihar and others, took s contrary view without taking into consideration the earlier Division Bench decisions of this Court and held as follows:

Order dated 29.4.82 passed by the Chief Judicial Magistrate reads as follows:

Let the case be sent to Sri S.I. Daudi, Judicial Magistrate, 1st class, Patna, u/s 192(1) of the Code of Criminal Procedure for inquiry and disposal.

There is nothing in this order to indicate that the Chief Judicial Magistrate made over the case to Sri Daudi after taking cognizance of an offence nor there is anything to indicate so in order dated 7.4. 1982 or dated 17.4.1982 mentioned above passed by the C.J.M. Thus, it is clear that the procedure adopted by the Chief Judicial Magistrate was against the provisions of this Sub-section and was therefore illegal and without jurisdiction. Since the order making over the case to Sri Daudi was illegal and without jurisdiction, he could not take cognizence and issue process to the Petitioners in the case on the basis of that complaint petition. Under the circumstances, the order taking cognizance of the case and for issuance of process to the Petitioners is illegal and without jurisdiction. On this ground alone the impugned order can be quashed.

There cannot be any doubt that in the facts of that case, the order of transfer passed the Chief Judicial Magistrate could not be said to have been legal as there was nothing on record to show that the Chief Judicial Magistrate applied his mind. But we with Utmost respect to the learned Judge, differ with his observation that ''as the Chief Judicial Magistrate transferred the case without examining the complainant on solemn affirmation was illegal, the issuance of summons by the transferee court was also illegal and without jurisdiction.

Evidently in the Arvind Kumar Sinha''s case (supra) the attention of the learned Single Judge was not drawn to the earlier decision of this Court wherein it has been held that non-examination of the complainant on solemn affirmation is merely an irregularity and the said irregularity can be cured.

In Anwar Ahmad Vs. The State of Bihar and Another, a learned Single Judge of this Court held as follows:

By a series of decisions, it is now well settled, that the omission to examine the complainant on S. A. is not an illegality which will vitiate the trial but merely an irregularity which is curable. There are two cases decided by Justice Jwala Prasad and reported in AIR 1920 Pat 232 Emperor v. Heraa Gope and at page 700 Abdul Ali v. Emperror in which it has been held that the failure to examine the complainant on S. A. u/s 200, Code of Criminal Procedure is a mere irregularity which can be cured and does not vitiate the proceeding unless of course it can be shown that this commission has occasioned a failure of justice or has prejudiced the accused in any manner. However, in the same volume at page 670 there is a Single Bench decision of Justice P. R. Das as he then was AIR 1920 Pat 670 Mangu Koeri v. Emperor in which his Lordship held that the omission to examine the complainant on oath vitiates the entire proceeding and is not a mere irregularity which is curable. In taking this view his Lordship placed reliance on the case of Jhuna Lal Sahu v. Emperor reported in (1917) 2 PLJ 657. There was thus at that time a conflict of legal opinion. The position, however, is now settled by a Special Bench decision of this Court reported in 1930 ILR 9 Pat 707 Bharat Kishore Lal Singh Deo v. Yudhistir Mandal. Their Lordships-held that the view taken in the Jhunalal case (supra) is erroneous and the court observed as follows:

Every High Court in India has held that the omission to examine the complainant on oath is in fact not an illegality but is an irregularity and being an irregularity the next question that arises is as to whether the Petitioner has by reason of the irregularity been put to any substantial injustice.

The Special Bench, therefore, agreed with the view taken by Justice Jwala Prasad in the two cases reported in AIR 1920 Pat as mentioned above. The same view has been reiterated in the subsequent decisions of this court. Reference in this connection may be made to the decisions reported in Raghunandan Lal Vs. Emperor, In Re: Ramjas Marwari, Begam Rai and Others Vs. The State, Thus according to the decisions of this Court as referred to above, the position is that mere omission to examine the complainant on S. A. u/s 200 of the Code at the time of taking cognizance does not amount to an illegality so as to vitiate the trial but it amounts to a mere irregularity and such an irregularity is curable unless it can be shown that the omission has caused the failure of justice or prejudiced the accused in his defence.

Yet more recently, another learned Judge in Ramprit and Ors. v. State of Bihar 1991 1 BLJ 114 did not follow Arvind Kumar Sinha''s case (supra) in view of the Division Bench decision in the case of Sudama Singh 1973 BLJR 66.

In this view of the matter, that part of the judgment in Arvind Kumar Sinha''s case whereby it has been held that examination of the complainant on solemn affirmation by the Chief Judicial Magistrate was a condition precedent for transferring the case and on failure to do so the transferee court will have no jurisdiction of taking cognizance or issuing processes to the accused would also be illegal and without jurisdiction, cannot be sustained and must be overruled.

The question which now arises for consideration is as to whether the learned Chief Judicial Magistrate could be said to have taken cognizance of the offence by its order dated 14.6.87.

As indicated hereinbefore, before transferring the case to the court of Sri P.C. Choudhary, Judicial Magistrate, Jamshedpur, the Itemed Additional Chief Judicial Magistrate had perused the complaint petition and directed it to be registered.

In R.R. Chari v. The State of Uttar Pradesh AIR 1931 SC 207 the Supreme Court approved the decision of the Calcutta High Court in Superintendent and Remembrancer of legal Affairs W.B. v. Alani Kumar AIR (37) 1950 Cal. 437 in the following words:

After referring to the observations in Emperor v. Sourindra Mohan 37 Cal. 412 : 6 I.C. 8 it was stated by Das Gupta J. in Supdt. and Remembrancer of Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, as follows:

What is taking cognizance has not; been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Mag. has taken cognizance of any offence u/s 190(1)(a) Code of Criminal Procedure he must not only have applied his mind to the contents of the petn. but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap, proceeding u/s 202. When the Mag. applies his mind not for the purpose of proceeding under the subsequent sections of this Chap, but for taking action of some other kind e.g. ordering investigation u/s 156(3) or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.

In our opinion that is the correct approach to the question before the Ct.

In Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, the aforementioned decision was again followed. In that case the concerned Magistrate upon filing of the complaint passed the following order:

Accordingly, a complaint was filed on 2.2.1953. The Additional District Magistrate therein recorded the following order:

Seen the complaint filed today against the accused Narayandas Bhagwandas Mad havdas u/s 8(2) of the Foreign Exchange Regulation Act read with Section 238 thereof read with Section 19 of the Sea Customs Act and Notification No. F.G.R.A. 105/51 dated 27.2.1951, as amended, issued by the Reserve Bank of India u/s 8(2) of the Foreign Exchange Regulation Act. Seen the letter of authority. To Sri N.H. Sinha S. D. M. (Sadar) Magistrate 1st class (spl. empowered) for favour of disposal according to law. Accused to appear before him.

(Underlining is mine for emphasis)

The Supreme Court in that case held that by reason of aforementioned order dated 2.2.1953, the cognizance was taken by the learned Additional District Magistrate.

In that case, the Supreme Court after noticing the decision of the Calcutta High Court in Abani Kumar Banerji''s case as also R.R. Chari''s case (supra) held as follows:

As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of an warrant of arrest for that purpose cannot by themselves by regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding u/s 200 and subsequent Sections of Ch. XVI of the Code of Criminal Procedure or u/s 204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.

In Gopal Das Sindhi and Ors. v. State of Assam and Anr. AIR 1961 SC 986 similar view was taken. Reference in this connection may also be made to Jamuna Singh and Others Vs. Bhadai Sah, wherein the Supreme Court held as follows:

It is well settled now that when on a petition of complaint being filed before him a Magistrate applies the mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation u/s 156(3) or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari Vs. The State of Uttar Pradesh, : R.R. Chari Vs. The State of Uttar Pradesh, and again in Gopal Das v. State of Assam AIR 1961 SC 986.

It is therefore, clear that for the purpose of taking cognizance what is required is application of mind on the part of the Chief Judicial Magistrate for the purpose of proceeding under the provisions of Chapter XVI of the Code of Criminal Procedure and when the same is done the court can be said to have taken cognizance of the offences.

This aspect of the matter has again been considered by the Supreme Court in Tula Ram and Others Vs. Kishore Singh, : Tula Ram and Others Vs. Kishore Singh,

In R. Natesan v. B.P. Agarwal and Anr. reported in 1981 BLT (Re.) 77 (HC) S. Ali Ahmad J. repelling a contention that an order of transfer u/s 192 of the Code of Criminal Procedure without taking cognizance was bad and all the orders passed by the transferee court were illegal and without jurisdiction held:

I have no hesitation in rejecting this argument. The very opening words of the order dated 22.12.1978 by which the Chief Judicial Magistrate transferred the case u/s 192 of the Code to the Sub-divisional Judicial Magistrate are ''perused the complaint''. Persual of complaint, in my opinion, amounts to taking cognizance. Cognizance has not been defined but has been the subject matter of judicial interpretation from time to time. In the case of Ajit Kumar Palit v. State of West Bengal and Anr. (1963) 1 Cr.L.J. 797 the Supreme Court observed that the word ''cognizance'' has no esoteric or mystic significance in criminal law or procedure. It merely means becoming aware of and when used with reference to a Court or Judge, to take notice judicially. In another case cognizance according to the Supreme Court meant application of judicial mind. Keeping this mind there can be no doubt that the Chief Judicial Magistrate when he perused the petition of complaint became aware of the contents of the petition of complaint. It also means that there was application of judicial mind. Therefore, in my opinion, when the Chief Judicial Magistrate perused the petition of complaint he took cognizance of the case.

Learned Counsel however urged that since he did not examine, the complainant on solemn affirmation, he could not have taken cognizance lawfully as, according to him, examination of complainant on a solemn affirmation is a condition precedent to the taking of cognizance, I am not impressed by this argument also. Examination of the complainant on solemn affirmation is made u/s 200 of the Code which provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, whereas cognizance taken u/s 190 of the Code which prescribes that cognizance may be taken of any offence upon receiving the complaint of facts which constitute such offence. This section it is important to note, does not mention at all about examination of the complainant on solemn affirmation. In my view, therefore, the examination of the complainant on solema affrmation is not a condition precedent to taking of cognizance. I am supported in my views by the observations made by Untwalia J. (as the then was) in the case of Sudama Singh Vs. Kavindra Narain Singh, wherein he said taking of cognizance of any offence u/s 190 does not depend upon examination of the complainant upon oath.

We are in agreement with the aforementioned view.

In Cooli Gangadharam and Ors. v. State of Andhra Pradesh 1975 Cr.L.J. 1574 the learned Single Judge of the Andhra Pradesh held that a transfer without taking cognizance will amount to an administrative transfer.

In Ram Ekabal Pandey v. Kapildeo Rai and Ors. reported in 1984 BLJ 255 a learned Single Judge of this Court held that where a Magistrate sends a petition for complaint for investigation u/s 202 of the Code he could do it only after examining the complainant on oath because the Code contemplates postponement of the issue of process only u/s 202 of the Code.

The view taken by the learned Judge is correct. However, it may be noticed that as has been held hereinbefore, that failure to examine the complainant on solemn affirmation by itself will not vitiate the order taking cognizance.

In that case it was further held that transfer of the case u/s 192 of the Code of Criminal Procedure could have been ordered only after taking cognizance and in the facts of that case it appears that the learned Judge was right in holding that the transferring court did not take cognizance of the offence inasmuch he did not apply his mind to the allegations made in the complaint petition. In that situation it was held, that transfer of the case was an administrative transfer. The aforementioned decision therefore has also no application in the facts and circumstances of this case.

In Jitan Tiwari v. State of Bihar and Anr. reported in 1982 BLJ 658 a Division Bench was considering the distinction between an enquiry and investigation and the question as to whether in. the event the Magistrate did not intend to proceed as against the accused persons on receipt of the complaint petition and on examination of the complainant on solemn affirmation, the enquiry has got to be conducted by the Magistrate himself and he cannot get it enquired by any other Magistrate as he could under the old Code. This decision evidently is not applicable in the facts of this case.

In view of our finding aforementioned it must be held that in terms of the order dated 14.6.87, the learned Additional Judicial Magistrate took cognizance of the offence and, therefore, he had the jurisdiction to pass an order in terms of Section 192(1) of the Code of Criminal Procedure, and, thus, it was not necessary for him to examine the complainant on solemn affirmation. Consequently, it must be held that direction of Sri P.C. Choudhury Judicial Magistrate to issue summons upon the Petitioners and others in terms of his order dated 14.9.1989 after examining the complainant on solemn affirmation and further examining his witnesses, was absolutely legal and valid.

So far as the second contention raised by Sri G. Choudhury is concerned, the same has also no merits.

It is true that the main allegations in the complaint petition have been levelled as against the husband of the victim. However in paragraph 6 the complaimant stated that he got an information that all the accused persons were torturing his daughter like beasts and subjecting her to various mental and physical cruelties in order the grab money from the complainant. It has further been alleged as follows:

after the above petitions by the complainant the accused and others became furious and on 13.6.89 in the early morning all the accused persons along with their four or five henchmen came in a matador to the house of the complainant, at Kadma, Jamshedpur, criminally trespassed into his house, being armed with bhujallis and wrongfully confined and restrained the complainant and his wife and threatened them that if a sum of Rs. 50000/- is not paid within a week to accused No. 1 and if the complainant dares to take any legal action against them not only the daughter of the complainant, shell be killed at Midnapur but also they will get the complainant and his wife murdered by their gundas. On the point of bhujalis they also got the complainant forcibly signed on three blank papers on the threat of life and left the place of the complainant after closing the doors of his quarter from the outside.

Mr. Choudhury, however, submitted that from a perusal of the evidence adduced by the witnesses, it would appear that they have not supported a part of the story. In our opinion, while exercising our jurisdiction u/s 482 of the Code of Criminal Procedure, this Court cannot reappraise evidence. From a perusal of the order dated 14.9.1989 passed by Sri P.C. Choudhury it will appear that he has taken into consideration all the materials on records and came to the conclusion that a prima facie case under the provisions of Sections 498A, 386, 342 and 452/34 have been made out. Evidently the said learned court did not find that any case under the provisions of Section 4 of the Dowry Prohibition Act has been made, out. The learned Judicial Magistrate in passing the order has taken into consideration all aspects of the matter and, in our opinion, the same cannot be said to be illegal.

It is now well known that an enquiry u/s 202 of the Code of Criminal Procedure is held in order to enable the court to come to a conclusion as to whether any prima facie case has been made out as against the accused persons named in the complaint petition or some of them. Such a power is a wide one.

It is further well known that process can not only be issued by the court before whom a complaint petition is filed but also by a transferee court.

In this view of the matter, in our opinion, no case for interference with the impugned order has been made out at this stage.

Mr. Choudhury, however, has submitted that all the family members hive baa made accused including some ladies and mihors. It has further been submitted that some of the Petitioners are aged persons.

Mr. Choudhury further submitted that the possibility of the Petitioners being refused bail cannot be ruled out. It appears from the order dated 16.12.89 that Nirup Kumar Kundu (husband of the victim girl) Dilip Kundu (Petitioner No. 1) and Madhusudhan Kundu (Petitioner No. 4) surrendered before the learned court below and they have already been granted bail and in this view of the matter, the apprehension of Sri Choudhury does not appear to have any substance.

In this situation, it would be open to the Petitioner to file an application for discharge at an appropriate stage when the learned court below will have occasion to consider the entire matter on a broader spectrum.

It may, however, be observed that in the event the Petitioners or any of them file any application for being represented through their lawyers in the said proceedings on the ground of their being ladies, minors or aged persons, the same would be considered by the learned court below.

Mr. P.C. Roy, learned Counsel appearing for the complainant in view of the fact that all the accused persons are residents of West Bengal, very fairly stated that the complainant shall produce all his witnesses before framing of charge at an early date. In view of the fair stand taken by Sri Roy, we hope and trust that the learned trial court shall be able to complete the examination of all the witnesses produced on behalf of the complainant before framing charge within a period of three months from the date of receipt of a copy of this order and thereupon proceed to consider the application for discharge, if any, filed by the Petitioners on its own merits.

This application is, therefore, dismissed with the aforementioned observations. However, in the facts and circumstances of the case, there will be no order as to costs,

R.N. Sahay, J.

I agree.