BARAMAPPA BALAPPA Vs. YAMANAPPA

JUDGEMENT

(1.) The petitioner before this Court filed a complaint against the 10 respondents alleging that they committed offences under Section 395 of the Indian Penal Code, in the Court of the Judicial Magistrate, First Class, Gokak, The learned Magistrate examined the complainant and recorded his statement. He also called for a report from the police under Section 202 of the Code of Criminal Procedure. The learned Magistrate also directed the police to attach the tobacco crop which, according to the complainant, the accused had taken away forcibly. The respondents (accused) applied to the learned Magistrate stating that the tobacco crop belonged to them and they had grown the same in R.S. No. 230/1, which, according them, was in their possession and which they had not leased out to the complainant. The respondents also produced the Record of Rights extracts which disclosed that the said land was in the possession of the second accused. The respondents also produced tobacco licence which showed that tobacco was raised in the land in question by the respondents.

(2.) The learned Magistrate, after considering the complaint and the sworn statement of the complainant and the police report and also the documents produced by the accused, dismissed the complaint under Section 203, Cr.P.C. This revision petition is filed questioning the correctness of the said order passed by the learned Magistrate.

(3.) Shri Swamy, learned Counsel appearing on behalf of the petitioner, has contended that the learned Magistrate had no jurisdiction to hear the accused and to peruse the documents produced by them and to rely on them while dismissing the complaint under Section 203, Cr.P.C. He contends that the entire proceedings are vitiated because of the illegality in the procedure adopted by the Magistrate in allowing the accused to intervene before process had been issued and permitting them to produce documents. He has relied strongly on Chandra Deo Singh v. Prokash. Chandra Bose, reported in AIR1963 SC 1430 , [1964 ]1 SCR639 . In that case, their Lordships of the Supreme Court considered the entire scheme of Chapter XVI of the Code of Criminal Procedure and have stated that the accused person does not come into the picture till the process is issued. Their Lordships have also stated that the accused has no right to take part in the proceedings nor has the Magistrate jurisdiction to permit him to do so. 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. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 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. 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. Relying on this decision Shri Swamy contends that the learned Magistrate had no jurisdiction to permit the accused to intervene before process was issued, and the learned Magistrate acted illegally in relying on the documents produced by the accused at that stage. Shri Swamy also contends that if the accused had not intervened at that stage and produced the documents, there was every possibility of the Magistrate issuing process and not dismissing the complaint under Section 203, Cr.P.C. Sri Swamy submits that this is a fit case wherein this Court should remand the case to the learned Magistrate for considering whether process should be issued or not, after asking him to eschew the inadmissible evidence relied on by him, produced by the accused.