Dr. G. Venkateshwar Rao vs State and Another

T. CH. Surya Rao, J.—The petitioner seeks to quash the proceedings initiated against him u/s 497 of the Indian Penal Code before the V Metropolitan Magistrate, Hyderabad, in C.C.No.835 of 2001.

The factual matrix germane in the context for consideration may be set forth at the outset thus:

A private complaint was filed by the de facto complainant alleging inter alia offences punishable u/s 497 and 498 of the Indian Penal Code. That complaint was forwarded to the Police for investigation u/s 156(3) of the Code of Criminal Procedure (for brevity ''the Code''). The Police eventually filed the report u/s 173 of the Code recommending for dropping of the proceedings on the premise that the matter was of a civil nature. A protest petition was filed by the de facto complainant after having been served with the referred notice by the Police. The learned Magistrate examined the de facto complainant and recorded his sworn statement. Similarly, he examined other witnesses produced by the complainant and recorded their sworn statements. After having recorded the statements of the complainant and the witnesses and having been satisfied about the prima facie case, the learned Magistrate has taken the complaint on file and taken cognizance of the offence alleged u/s 497 of the Indian Penal Code only by issuing process against A.1. Pursuant thereto A.1 appeared before that Court and then filed the present application, as aforesaid, assailing the proceedings initiated against him invoking the inherent jurisdiction of this Court u/s 482 of the Code.

The learned counsel appearing for the petitioner submits that the cognizance taken by the learned Magistrate is wrong and the reasons whereof are two fold - firstly that the learned Magistrate ought to have conducted an enquiry u/s 200 of the Code and then an enquiry u/s 202 of the Code and without conducting an enquiry u/s 200, he straight away conducted enquiry u/s 202 and, therefore, the action on the part of the learned Magistrate is illegal; and secondly that even the complaint and the statements annexed therewith do not prima facie constitute the offences alleged.

Both the grounds urged before me merit no consideration. Whenever there is a report filed by the Police recommending for dropping of the action on a ground which is relevant for consideration in the context, the course open to the aggrieved party is to file a protest petition or a separate complaint, as the case may be. Once the complaint is preferred, the Magistrate can take cognizance of the offence alleged in the complaint. But before doing so, he shall examine the complaint on oath and the witnesses present, if any, and substance of such examination shall be reduced to writing, save and except in the cases where the complainant is a public servant or the Magistrate makes over the case for enquiry or trial to another Magistrate, and then issue the process to the accused. If for any reason the Magistrate is not inclined to take cognizance, he may postpone the issue of process and conduct enquiry in accordance with the provisions of Section 202 of the Code. The examination of the complainant and his witnesses present, if any, before issuing process to the accused u/s 200 of the Code cannot be mistaken as an enquiry as envisage u/s 202 of the Code. This legal position has been made clear by the Apex Court in TULA RAM v. KISHORE SINGH1. In para 14 of the said Judgement, the Apex Court held thus:

"The legal propositions that emerge in this regard are:

1) A Magistrate can order investigation under S. 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Sec. 156(3) though in cases not falling within the proviso to Sec. 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by S. 202 of the Code.

2) 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 straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

3) 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.

4) Where a Magistrate orders investigation by the police before taking cognizance under Sec. 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply him mind to the complaint filed before him and take action u/s 190 of the Code."

The learned Magistrate examined the complainant, recorded his sworn statement and then examined other witnesses produced before the Court on the side of the complainant and accordingly recorded their sworn statements also. That is not an enquiry conducted by him as envisaged u/s 202 of the Code. For the foregoing reasons, I am afraid, I cannot accede the contention of the learned counsel appearing for the petitioner that the Code envisages two different types of enquiries - one u/s 200 and the other u/s 202 of the Code. Such a strange procedure is not clearly envisaged by the Code.

Apropos the second contention, a perusal of the complaint as well as the sworn statements annexed therewith clearly prima facie shows the offence alleged. Therefore, even the second contention raised by the learned counsel appearing for the petitioner cannot be countenanced.

Even if it is said that the procedure adopted by the learned Magistrate is wrong that cannot be quashed on the premise that it is a sheer abuse of the process of the Court and it is for the petitioner to assail that order by invoking revisional jurisdiction of this Court but he cannot seek to quash the proceedings on the ground that it is a sheer abuse of the process of the Court.

For the foregoing reasons, the Criminal Petition is dismissed at the threshold.