ANNA NAGDEV RAMUGADE Vs. K B AILANI

JUDGEMENT

(1.) The writ petition is directed against the order passed by the Revision Court, 6th Additional District Judge. Thane in Criminal Revision Application No.61 of 1981. A complaint has been filed by 1st respondent against the petitioners before Judicial Magistrate, First Class, Thane bearing Criminal Case No. 553 of 1987, which contain allegation that the petitioners have committed offence under Section 403 and 406 and 420 of I.P.C. It was alleged that the respondent Nos.1 and 2 falsely represented to the complainant that they have started construction and development business, promoted construction of shops at Ghatkopar and they showed a plot of land in hutment area where the shops were proposed to be constructed. It is further alleged that they have represented that they will obtain necessary permission from Municipal Council and Census Certificate and the complainant would be given two shops, plot for consideration of Rs. 46,000/-. It is alleged that the respondent Nos. 1 and 2 induced the complainant to part with that amounts from time to time and all the representations made by them were only for defrauding the complainant. On the receipt of the complaint, and on perusal of the documents produced, the Magistrate though it fit to have enquiry by the police under Sec. 202 of Cr.P.C. but the report of the police was not forthcoming. However, without waiting for such report, from the police, the Magistrate independently asked the complainant to produce certain documents and also allowed the accused to produce evidence and on appreciation of such evidence documentary and oral, the Magistrate found that the complaint was not genuine and therefore, dismissed the same. Aggrieved by the said order of the Magistrate, the complainant filed Revision as Criminal Revision Application No. 61 of 1989 in the 6th Addl. Sessions Judge, Court, Thane. The Revision Court passed impugned order setting aside the action of the Magistrate and rejected the complaint.

(2.) I heard Mr.Thorat counsel for the Petitioner. After hearing arguments of Mr. Thorat, learned counsel for the petitioner and Ms. Usha Kejriwal, A.P.P. appearing for the State. I am not inclined to allow this petition. According to me, Magistrate has committed grave procedural error in issuing process. For the purpose of appreciation, it is necessary to extract provisions of Criminal Procedure Code under Sec. 202 as follows:

(3.) The learned counsel for the petitioner Mr. Thorat submits that the Magistrate has got power to conduct enquiry either himself or through the police under Sec. 202 and therefore, there is nothing illegal on the part of the Magistrate for having examined the evidence adduced by the parties. A mere reading of Sec. 202 of Cr.P.C. will sufficiently falsify the argument. The enquiry contemplated under Sec. 201(1) is only with regard to the genuineness of the allegations made in the complaint on the basis of the oral evidence adduced by the complainant or the documents produced by the complainant and not otherwise. The learned counsel's argument is based on the misconception of the word "Enquiry" that is appearing in Sub Sec. (2) of Section 202 of Cr.P.C. This contention has been raised as unmindful of sec.204 of the Cr.P.C. Sec. 204 is a section which authorities the Magistrate to issue process against the accused. The accused is not expected to be present or to adduce evidence before issuing process. Therefore, it goes without saying that the word enquiry that is occurred in Sec. 202(2) is an enquiry on the basis of the allegations and the materials produced before the court by the complainant and not by anybody else. Therefore, without waiting for the report of the police allowing the accused to adduce evidence is a violation of mandate of Sec. 202 of Cr.P.C. The learned counsel had tried to impress upon me that the merits of the case as disclosed from the evidence adduced justifies the action of the Magistrate. I am not supposed to go into that aspect of the matter.