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Gurappa Basappa Dalal and ors. Vs. Modinsab Maliksab Bagwan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Petn. No. 596 of 1983
Judge
Reported in1984(1)KarLJ33
ActsIndian Penal Code (IPC), 1860 - Sections 149, 379 and 447; Code of Criminal Procedure (CrPC) , 1973 - Sections 190(1), 202 and 482
AppellantGurappa Basappa Dalal and ors.
RespondentModinsab Maliksab Bagwan
Advocates:K. Appa Rao, Adv.
Excerpt:
.....towards maintaining himself had he been alive. further, section 163-a read with schedule ii of the act, itself having provided the percentage of deduction to be effected, the deduction can be in terms thereof only and not otherwise. award is justified. - what was submitted by the counsel for the petitioners is that the averments made by the complainant and his witnesses in their sworn statements, in a case like this are entitled to a greater weight than the averments made in the complaint; besides considering the ambit and scope of the relevant provisions of the code, the decision deals with the position of the accused at that stage of the enquiry, the duty of the magistrate probing into the allegations made, the materials on which he has to base his decision as to whether there..........under s. 190(1)(a) of the cr.p.c. 1973 (the code). on receiving the complaint he has taken the sworn statements of the complainant and two others as provided in s. 200 of the code. 3. the contention of the learned counsel for the petitioners is that the court below, not having properly applied its mind and wrongly coming to the conclusion that there is a prima facie case, has erred in issuing process against them. the learned counsel, in the course of his arguments, took me through the complaint and the sworn statements (copies of which he has placed in the records). i have perused them. 4. 16 persons, including these 10 persons are shown as the accused in the complaint. 5. the averments made in the complaint are that he, the complainant, is the owner in possession of the land.....
Judgment:
ORDER

1. This is an application under S. 482 of Cr.P.C. 1973 (the Code) filed by the accused in C.C. No. 9 of 1982 on the file of the JMFC, Mudhol against the order of that court D/- 5-7-1983 issuing process against them for offences under sections 447, 379 and 504 read with S. 149 I.P.C.

2. The learned Magistrate took cognizance of this complaint under S. 190(1)(a) of the Cr.P.C. 1973 (the Code). On receiving the complaint he has taken the sworn statements of the complainant and two others as provided in S. 200 of the Code.

3. The contention of the learned counsel for the petitioners is that the court below, not having properly applied its mind and wrongly coming to the conclusion that there is a prima facie case, has erred in issuing process against them. The learned counsel, in the course of his arguments, took me through the complaint and the sworn statements (copies of which he has placed in the records). I have perused them.

4. 16 persons, including these 10 persons are shown as the accused in the complaint.

5. The averments made in the complaint are that he, the complainant, is the owner in possession of the land bearing R.S. No. 104/213 of Lokapur village, that having seen all the accused near that land at about 8.30 p.m. on 8-2-1982 his witness Venkatarao Desai had informed him that upon hearing he had gone there with his brother Bapusaheb Maliksaheb Bagwan, witnesses Pachappa Nadag, Galibusaheb Kaladgi, Basappa Gurappa Chaudhari and Rudrappa Muddapur that they had seen all the accused removing the crops from the land and that, therefore, action should be taken against them for offences under sections 395, 447, 504 read with Section 149. I.P.C.

6. In his sworn statement he has stated that his land is about a mile away from his house; that on the date of the occurrence, at about 9 p.m. Venkatrao Desai had told him about the accused having trespassed into his land; that thereafter all of them had gone there and seen Lokapur Police and P.S.I. all cutting and removing the Jawar crop. He has also sworn about his having requested them not to do so, but of their not having heeded to his words.

7. In his sworn statement his witness Venkatarao Desai has stated that he knew the accused; that he was near the land of the complainant at about 8.30 p.m. on that day; that 30 persons had come near the land in a tractor; that all of them had entered into the land; and that he had informed this fact to the complainant.

8. His 2nd witness, Basappa, (P.W. 3) who too is said to have accompanied the complainant to the land, has sworn to the effect that accused 1 to 10 were removing the crop from the land and that the 11th accused was also there.

9. It is relying on the above statements process has been issued by the court below against the accused 1 to 10 named in the complaint.

10. Elaborating his submission that the court below had not applied its mind and had erred in coming to the conclusion that there was a prima facie case against the petitioner; what was submitted by the counsel for the petitioners is that the averments made by the complainant and his witnesses in their sworn statements, in a case like this are entitled to a greater weight than the averments made in the complaint; and that in his sworn statement the complainant has not given the names of all the accused, and, besides, has merely stated about his having seen Lokapur Police and the P.S.I., alone being in the land and, therefore, these petitioners, who have not been specifically named in his sworn statement should not have been issued with any process. It is also his argument that the sworn statement of Venkatarao Desai is too vague for any comment, and that the sworn statement of Basappa containing as it does, only the names of ten accused, accused Nos. 1 to 10, to that extent being in variance with the sworn statement of the complainant, should not have been given any weight at all by the learned Magistrate. It may be noted that of the persons named in the complaint accused Nos. 11 to 16, are police officials attached to Lokapur Police Station.

11. In the first place the sworn statement of the complainant cannot be construed as argued by the counsel for the petitioners. The sworn statement is in Kannada. Referring to what he had seen on the land what he states is :

Counsel for the petitioners argued that the 'words' (Kannada script) refers only to the preceding words '(Kannada script)' and does not at all refer to the persons named as the accused in the complaint.

12. The question that arises for consideration is as to how a Magistrate, taking cognizance of an offence on a private complaint, has to find out whether in his opinion, there was sufficient ground for proceeding in the matter, and what are the materials in a case of that type available to him for consideration

13. A careful reading of the provisions contained in Chapter XV of the Code - Sections 200 to 203 - show that he has to take into consideration (i) the complaint in writing, if one is made in writing; (ii) the statement on oath of the complainant and of his witnesses, if any, (iii) and the result of the enquiry and investigation, if any, made under S. 202 of the Code, and has to form an opinion as to whether there was sufficient ground for proceeding, in the matter. Thus, taken together, what idea they convey has to be seen.

In Chandra Deo Singh v. Prokash Chandra, : [1964]1SCR639 the Supreme Court has considered all aspects of this question in great detail. Besides considering the ambit and scope of the relevant provisions of the Code, the decision deals with the position of the accused at that stage of the enquiry, the duty of the Magistrate probing into the allegations made, the materials on which he has to base his decision as to whether there were sufficient grounds for proceeding with the enquiry and the like. For our purpose we may note the following observations made at para 8.

'No doubt, as stated in sub-section (2) of Section 202 itself the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant'.

Section 202 of the Cr.P.C. 1898 (old Code) is analogous to S. 200 of the Code (new) except for some minor changes. It may be relevant to note that according to Section 202 of the old Code further enquiry, if any, by him was 'for the purpose of ascertaining the truth or falsehood of the complaint.' In the new Code such enquiry is 'for the purpose of deciding whether or not there is sufficient ground for proceeding'. Since the Legislature felt that 'ascertaining the truth or falsehood of the complaint' at that stage was beyond the scope of that enquiry those words have been deleted and are replaced with the words, as stated above, in the new Code.

14. In the instant case I have referred to the complainant and the sworn statement of the complainant. I am unable to agree with the Counsel for the petitioners that the complainant, in his sworn statement, has named only the police officials and has completely left out others. The words '.................' cannot, in the circumstances, be said to refer only to police officials specifically mentioned in his sworn statement. Those words also referring to all the persons name in the complaint, cannot, at this stage, be ruled out. It is true that the Magistrate, if he had been a little alert, could have then and there ascertained, by putting questions to the complainant in clearer terms as to what he had meant. However, having carefully examined the complainant's sworn statement and the complaint petition I feel that it may not be proper to interfere with the order of the court below issuing process against these persons.

15. Accordingly, this petition, not having been admitted, is hereby dismissed.

16. Petition dismissed.


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