Bhavika and Others Vs. State of Maharashtra and Another - Court Judgment

Oral Order:

1. Rule. Rule made returnable forthwith. With consent of the parties, the petition is heard finally.

2. Aggrieved by the direction of the learned Chief Judicial Magistrate, Aurangabad, to issue process against the present petitioners for the offences punishable under section 406, 420 r/w. 34 of the Indian Penal Code, the present petition is filed.

3. The complaint filed by the respondent no.2 would show that the marriage between the petitioner no.1 Bhavika i.e. original accused no.1 and younger brother of the complainant Sameer took place on 3/1/2013. After some days of co-habitation, there was estrangement between the parties on 14/2/2013. Thereafter, various complaints came to be filed by the present petitioner no.1. In the situation, the respondent no.2 filed the present complaint against the petitioner no.1 as well as her relatives i.e. the next of the petitioners. The gist of the complaint is that dowry was paid from the side of the bridegroom to the bride in the marriage. However, there was intention of deception in the mind of the petitioners since the talks of marriage and, therefore, just within the short period, as detailed above, the estrangement took place. Not only this, at the time of leaving the matrimonial home, the petitioner no.1 has taken away the golden ornaments of the mother-in-law worth Rs.11 Lakhs and, therefore, an application came to be filed for direction to the Police to investigate the matter as per the provisions of sub section 3 of section 156 of the Code of Criminal Procedure.

4. The learned Chief Judicial Magistrate refused to act as per the said provision and directed that the enquiry as provided by section 202 of the Code of Criminal Procedure shall be held by the learned Chief Judicial Magistrate himself. Thereafter, the complainant examined himself and filed the documents below the list at Exhibit 3, which included the receipts regarding the purchase of ornaments by the mother-in-law. In the circumstances, the learned Chief Judicial Magistrate passed the order. He has taken into consideration verification of the complainant and the documents filed below list at Exhibit 3. The learned Chief Judicial Magistrate came to the conclusion that there is a prima facie case and reasonable ground for proceeding against the present petitioners and, therefore, order directing the issuance of process is passed.

5. The complaint is filed at Aurangabad. Petitioner nos.1 to 3 are residents of Bhuj in the State of Gujarat, while rest of the petitioners are residents of Mumbai. In the circumstances, Mr. Rajebhosale, learned counsel for the petitioners vehemently submitted that in view of the amended provision of section 202 of the Code of Criminal Procedure, the learned Chief Judicial Magistrate ought to have held the enquiry if the learned Chief Judicial Magistrate was not inclined to send the matter for inquiry by the Police, as provided by section 202 of the Code of Criminal Procedure. He submitted that mere "verification" recorded of the complainant was not in fact a good and satisfactory enquiry. The object of the amendment to the provision of section 202 of the Code of Criminal Procedure in the year 2005 making it mandatory that either the Magistrate or the Police to first enquire into the complaint, would be thwarted if merely on the verification of the complainant without making satisfactory enquiry, direction to issue process is issued.

6. On the other hand, Mr. Bhandari, learned counsel for respondent no.2 submits that the learned Chief Judicial Magistrate has exercised the discretion in not directing the Police to carry the investigation as per the provisions of sub section 3 of section 156 of the Code of Criminal Procedure. Therefore, in the circumstances, there was postponement of the issue of process and the learned Chief Judicial Magistrate thought it fit to conduct the enquiry himself as provided by the provisions of section 202 of the Code of Criminal Procedure. In the circumstances, the mandatory provision that, if the accused resides beyond the territorial jurisdiction of the Magistrate, then process shall not be issued unless the enquiry is made, is followed. He further submits that the learned Chief Judicial Magistrate did not rely solely on the examination of the complainant though it is styled as verification but also has taken into consideration the documents filed below list at Exhibit 3. Therefore, relying on the ratio of "Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others" AIR 1976 S.C. 1947(1), Mr. Bhandari submits that there is no need to interfere in the judicial discretion exercised by the learned Chief Judicial Magistrate.

7. Upon hearing both the sides, in my view, though the learned Chief Judicial Magistrate has conducted the enquiry, the said enquiry was not a satisfactory enquiry, taking into consideration the impact of the amendment to the provisions of section 202 of the Code of Criminal Procedure. The impugned order therefore is liable to be quashed and set aside and the matter is required to be remanded back to the learned Chief Judicial Magistrate for causing further enquiry, if any, for the reasons to follow.

REASONS

8. The provisions of section 202 of the Code of Criminal Procedure read as under:-

"202. Postponement of issue of process.

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :

Provided that no such direction for investigation shall be made,-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200."

9. It would thus be seen that before the amendment, while there was a discretion for the Magistrate either to cause the enquiry to be made or to directly issue process on the basis of the verification cum examination of the complainant, after the amendment it is necessary for the learned Judicial Magistrate First Class to take up the enquiry in case the accused persons reside beyond the territorial jurisdiction of the concerned Judicial Magistrate First Class.

The purpose behind the amendment has been highlighted by another Hon'ble Single Judge of this Court in the case of "Satish @ Rajendra S/o Harbans Tiwari and Ors. Vs. State of Maharashtra and anr.", at paragraph no.9 as under:-

"9. Looking to the object of bringing amendment to the Code, in my opinion, the enquiry contemplated by Section 202 in relation to the accused persons residing outside the territorial jurisdiction has to be a good, satisfactory and sufficient enquiry. By merely going through the averments in the complaint and verification statement it cannot be said that the Magistrate had held enquiry as contemplated by amended provision of Section 202 of the Code. To say so would result into giving no effect to the amendment to Section 202. It is the duty of the Court to give full effect to the provisions of law and respect the wisdom of the Legislature which thought it fit to amend the provisions of Sections 202. In the instant case, as found by me, the learned Magistrate did not see the amended provisions of Section 202 but proceeded to issue process in ignorance of the said amended provisions of law. In the light of the above discussion, it would be appropriate to quote relevant portion from para 16 from the decision in 2007 ALL MR (Cri) 623, supra, since the said discussion is made on various Supreme Court decisions. The relevant portion reads thus :

".. A conjoint reading of Section 203/204, Cr.P.C. shows that process is to be issued after considering the statement on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under Section 202. The recording of the statement on oath of the complainant under Section 200 Cr.P.C. is not an empty formality. Commonly it is nicknamed as verification. To verify means to establish the truth. In other words, verification is done in order to ascertain as to what is pleaded by the complainant is true or not. It is with a view to separate chaff from the grain as many a times complaints do contain unfounded allegations and it is the duty of the Court to ensure that what is stated in the complaint is also stated by the complainant on oath and it is only then that based on such statement that process can be issued. The corollary of this would be that unless offences are disclosed from the statement on oath, no process can be issued only based on averments in the complaint. The complainant is bound to make a statement on oath as to how the offence was committed and how the offence was committed and how the accused persons are responsible therefor. After the statement on oath is recorded, a Magistrate is required to apply his judicial mind to the facts of the case and the law applicable thereto and find out what offence/s is made out, notwithstanding that the other party at that stage is unrepresented."

"As observed by the Apex Court time and again, summoning of an accused in a criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. A Magistrate is required to examine the nature of the allegations made in the complaint and the evidence both oral and documentary to see if it is sufficient for the complainant to succeed in bringing charge home to the accused. In other words, the examination of the complainant on oath is for the purpose of ascertaining whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. As observed by the Apex Court in Punjab National Bank and ors. v. Surendra Prasad Sinha (1993 Supp.(1) SCC 499), it is salutary to note that judicial process should not be an instrument of oppression or needless harassment. A magistrate is required to find out whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued and at that stage the Court has got to be circumspect in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the person needlessly. Vindication of Majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance."

10. In the case of "Smt. Nagawwa v. Veeranna" (cited supra), the Supreme Court was concerned with the unsatisfactory investigation carried by the Police though the chargesheet was filed for the offences punishable under section 302, 114, 148, 147 of the Indian Penal Code. In the circumstances, the original complainant has filed complaint before the learned Judicial Magistrate First Class, alleging that in fact initially, the persons who should have been also the co-accused were deliberately left out in the chargesheet. In those circumstances, the learned Magistrate held the enquiry and directed that the process be issued. In this set of facts, the Supreme Court has in the year 1976 observed that the scope of the enquiry under section 202 of the Code of Criminal Procedure is extremely limited. The learned Judicial Magistrate First Class is required to find out only as to whether the material placed by the complainant before the Court is sufficient for issuing the process or not. It was further observed that when the Magistrate has exercised his discretion in the matter and the discretion has been judicially exercised by him, the High Court or the Supreme Court would not substitute its own discretion for that of the Magistrate.

11. In the present case what we find is that the petitioners are residents either of Kacch in Gujarat State or of Mumbai. The amendment to the provisions of section 202 of the Code of Criminal Procedure would show that the Magistrate is required to be circumspect before passing any order regarding the accused who resides beyond his territorial jurisdiction. Thus, immediately issue process order cannot be passed on the basis of certain verification but certain enquiry is required to be made. Here in the present case, besides the verification-cum-examination of the complainant, we have only the copies of receipts of the gold ornament purchased in the name of the mother-in-law.

12. Taking into consideration all these facts, in my view, when enquiry held by the learned Chief Judicial Magistrate was not satisfactory enquiry, no order for issuing process could have been passed by exercising the judicial discretion by the learned Chief Judicial Magistrate.

13. In that view of the matter, the following order:-

I) The Criminal Writ Petition is hereby allowed.

II) The order dated 14/08/2013 passed by the learned Chief Judicial Magistrate, Aurangabad in R.C.C. No.1146 of 2013 and the order dated 7/2/2014 passed by the learned Additional Sessions Judge2, Aurangabad in Criminal Revision No.186 of 2013 are hereby quashed and set aside. Instead, the matter is remanded back to the learned Chief Judicial Magistrate, Aurangabad.

III) The complainant would be at liberty to place additional material, if any, before the learned Chief Judicial Magistrate, Aurangabad, who would be at liberty to make further enquiry, as may be deemed fit and, thereafter, fresh orders may be passed.

14. Rule is accordingly made absolute.