IMBICHA BAVA HAJI Vs. IMBICHI BAVA

JUDGEMENT

(1.) The petitioner had filed a complaint before the Sub Magistrate, Tirur alleging that he was in possession of the property mentioned in the complaint in R. S. 35/11 of Rayirmangalam amsom, Tirur Taluk, that on 20-1-1964 the two accused trespassed into the paramba and demolished a small hut belonging to him and thereby committed offences punishable under S.447 and 426, I.P.C. The sworn statement was taken and the case was numbered as C. C. 77 of 1964. But he postponed the issue of process and sent the case to the Sub Inspector of Police, Tanur for enquiry under S.202 Cr. P.C. The Sub Inspector registered a case, questioned witnesses and sent the record of investigation to the Sub Magistrate. On a perusal of the records, learned Magistrate ordered that the case would proceed against the first accused and ordered summons to be issued to him. As regards the second accused, learned Magistrate stated that he is not a necessary party to this case and ordered that summons need not be issued to him. I do not understand what the Magistrate means by saying that one of the accused in a complaint is not a necessary party. The order purports to be one of dismissal of the complaint against him under S.203 Cr. P.C., even though the Magistrate has not specifically stated so.

(2.) The matter was taken up in revision under S.436 Cr. P.C., to the District Magistrate, Kozhikode, who without directing his attention and giving independent thought to the points involved in the case dismissed the petition observing, The learned Sub Magistrate has given reasons for his order that summons need not be issued against the second accused. I do not find any ground to interfere with this order. Hardly sufficient even if it is an order on a revision petition.

(3.) Discussing the scope of an inquiry under S.202 Cr. P.C. the Supreme Court in a recent case in Chandra Deo Singh v. Prokash Chandra Bose ( AIR 1963 SC 1430 ) stated that it is true that one of the objects behind the provisions of S.202 Cr. P.C., is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. 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 S.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.