MADGULA SATHAVVA Vs. STATE OF A P

JUDGEMENT

(1.) A complaint was filed before the I Additional Sessions Judge, Sangareddy, Medak District for the offence punishable under Section 302 IPC. The complaint was numbered as File No.1 of 1998 on its file. The predecessor in office ordered notice to both parties giving date as 17-1-1998. On 7-2-1998 the complainant and her Counsel were present. The notice on the respondent was not served. The case was posted to subsequent date. On that day, the special Counsel for the respondent appeared. PWs.1 and 2 were examined in chief. Their cross-examination was deferred at the request of the Counsel for respondent. The case was posted to 2-5-1998. On that day, PWs.3 to 9 were examined in chief. The Counsel for the complainant requested time so that he may argue whether the witnesses can be cross- examined by the defence at that stage. Therefore, the case was posted to 6-6-1998. It was argued that the accused has no right to cross-examine the witnesses when the cognizance of the offence was not taken by the Court. This contention was not entertained on a simple ground that the Court has made up its mind to give opportunity to the accused to cross-examine the witnesses, and adjournments were granted deferring the cross-examination.

(2.) The reason given and the procedure adopted by the Court below are not correct. It is a preliminary enquiry under Section 202 Cr.PC. The Court at that stage has to ascertain only whether there is a prima facie case to proceed further. At that stage, there is no question of giving opportunity to the accused to cross-examine the witnesses examined by the complainant. This position of law is well settled and clearly laid down by the Supreme Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, AIR 1976 SC 1947. In that case, the Supreme Court held as follows: "At that stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one." It was also held: "The scope of the inquiry under Section 202 is extremely limited - only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact, in proceedings under Section 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not," The same position of law was again reiterated by the Supreme Court in Mohinder Singh v. Gulwant Singh and others, AIR 1992 SC 1894, wherein it was held as follows: "During the course of inquiry under Section 202 of the Code, the Enquiry Officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and no detailed enquiry is called for during the course of such enquiry," In Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430, the Supreme Court held as follows; "The entire scheme of Ch.XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a Counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can be examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go."

(3.) Thus, it is clear that the defence has no say in the matter. It is the Magistrate who is to be satisfied on the allegations made in the complaint that it is a fit case or not or a prima facie case is made out, to proceed with the case. Certainly, the defence has no part to play at this stage, leave alone cross-examining the witnesses. In view of the settled proposition of law, the impugned order is certainly erroneous. It is set aside. The lower Court is directed to examine whether a prima facie case is made out considering the statements of the witnesses examined by the complainant and proceed with the case according to law.