M. Santhosh, J.
1. The petitioner before this Court filed a complaint against the 10 respondents alleging that they committed offences under Section 395 of the Indian Penal Code, in the Court of the Judicial Magistrate, First Class, Gokak, The learned Magistrate examined the complainant and recorded his statement. He also called for a report from the police under Section 202 of the Code of Criminal Procedure. The learned Magistrate also directed the police to attach the tobacco crop which, according to the complainant, the accused had taken away forcibly. The respondents (accused) applied to the learned Magistrate stating that the tobacco crop belonged to them and they had grown the same in R.S. No. 230/1, which, according them, was in their possession and which they had not leased out to the complainant. The respondents also produced the Record of Rights extracts which disclosed that the said land was in the possession of the second accused. The respondents also produced tobacco licence which showed that tobacco was raised in the land in question by the respondents.
2. The learned Magistrate, after considering the complaint and the sworn statement of the complainant and the police report and also the documents produced by the accused, dismissed the complaint under Section 203, Cr.P.C. This revision petition is filed questioning the correctness of the said order passed by the learned Magistrate.
3. Shri Swamy, learned Counsel appearing on behalf of the petitioner, has contended that the learned Magistrate had no jurisdiction to hear the accused and to peruse the documents produced by them and to rely on them while dismissing the complaint under Section 203, Cr.P.C. He contends that the entire proceedings are vitiated because of the illegality in the procedure adopted by the Magistrate in allowing the accused to intervene before process had been issued and permitting them to produce documents. He has relied strongly on Chandra Deo Singh v. Prokash. Chandra Bose, reported in : 1SCR639 . In that case, their Lordships of the Supreme Court considered the entire scheme of Chapter XVI of the Code of Criminal Procedure and have stated that the accused person does not come into the picture till the process is issued. Their Lordships have also stated that the accused has no right to take part in the proceedings nor has the Magistrate jurisdiction to permit him to do so. 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 Section 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. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the Legislature has made no specific provision permitting an accused person to take part in an enquiry.
Relying on this decision Shri Swamy contends that the learned Magistrate had no jurisdiction to permit the accused to intervene before process was issued, and the learned Magistrate acted illegally in relying on the documents produced by the accused at that stage. Shri Swamy also contends that if the accused had not intervened at that stage and produced the documents, there was every possibility of the Magistrate issuing process and not dismissing the complaint under Section 203, Cr.P.C. Sri Swamy submits that this is a fit case wherein this Court should remand the case to the learned Magistrate for considering whether process should be issued or not, after asking him to eschew the inadmissible evidence relied on by him, produced by the accused.
4. Sri Deshpande, learned Counsel appearing for the respondents, has contended that the learned Magistrate was perfectly right in allowing the accused to produce documents and in relying on the documents produced by them, because, the tobacco crop raised by the accused had been attached. Because their crops had been attached, the (respondents) accused made an application before the Magistrate asking him to raise the attachment on the ground that the land in dispute was in their possession and that they had raised the tobacco crop. In asking for the release from the attachment, the respondents were well within their rights to produce documents to show that the land was in their possession and that they had raised the said crop. He further contends that the learned Magistrate was fully justified in relying on the version put forward by the accused and the documents produced by them. Sri Deshpande also submits that the learned Magistrate was fully justified in relying on the police report, which clearly states that no offence had been made out against any of the respondents.
Sri Deshpande also relied on Vadilal Panchal v. Dattatraya Dulaji reported in : 1SCR1 . In that case, their Lordships of the Supreme Court have held that when a Magistrate directs an inquiry under Section 202, Cr.P.C., for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officer supporting a plea of self-defense made by the person complained against, it is open to him to hold that the plea is correct on the basis of the report and the statement of witnesses recorded by the enquiring officer. It is not obligatory on the Magistrate, as a matter of law to issue process in such a case and leave the person complained against to establish his plea of self-defense at the trial.
5. Sri Deshpande, therefore, contends that if the police report discloses any plea of the accused, it is open to the Magistrate to accept the same and act upon it.
6. The learned High Court Government Pleader appearing for the State has supported the order of dismissal of the complaint and contends that paragraph 3 of the complaint itself discloses that there was civil litigation between the parties and the very question of possession was in dispute. Paragraph 3 of the complaint discloses that accused 1 had filed a suit for permanent injunction. This must obviously be on the allegation that he was in possession of the land. The complaint also discloses that this suit of accused 1 was dismissed and accused 1 has filed an appeal and the appeal is pending in the higher Court. The learned High Court Government Pleader also argues that it is open to the High Court to eschew the evidence produced by the accused on which the learned Magistrate has relied on and act on the rest of the material on record and find out whether it is a fit case for remanding the same to the Magistrate. If the High Court comes to the conclusion that no prima facie case has been made out and it is not a fit case for remand, the High Court will be well within its jurisdiction in dismissing the petition.
7. The learned Magistrate in the early part of the order, has considered the question whether an offence under Section 395, I.P.C., has been made out against the respondents-accused. He has held that no case of dacoity has been made out. The complainant must prove that the accused committed robbery and further they are guilty of dacoity. The learned Magistrate has clearly stated, to constitute an offence of robbery, there must be (1) a theft and (2) in committing theft or in carrying away or attempting to carry away the property obtained by theft, the offender, for that end, must voluntarily cause or attempt to cause any person death or hurt or wrongful restraint or fear of instant death or of instant hurt. He has stated that on a careful reading of the allegations made in the complaint, it is clear that nowhere it is alleged that the accused hurt or attempted to cause the complainant death or hurt or wrongful restraint or fear of instant death or of instant hurt. He has further stated that even in the sworn statement of the complainant, he has not stated that the accused attempted to commit such acts as mentioned above. He, therefore, came to the conclusion that no case of robbery or dacoity has been made out by the-complainant.
The learned Magistrate has next considered the question of theft. He has analysed the various ingredients of the offence. Considering the question of theft, he has stated that there is absolutely no material produced by the complainant except his statement to show that he was in possession of the land in question in the year 1964-65 and that he had raised tobacco crops therein. If the complainant has not proved that he was in possession of the land in question, then it is obvious that no case, either of theft or of robbery or dacoity, arises. It is only after coming to this conclusion that no case of dacoity or robbery or theft has been made out by the complainant, that the learned Magistrate supplements his reasons by referring to the Record of Rights extract and the tobacco licence produced by the accused. It is clear from a reading of the order of the learned Magistrate that even before referring to or relying on the documents produced by the accused, the learned Magistrate had come to the conclusion that no offence of dacoity, robbery or theft had been made out by the complainant either in1 his complaint or in his sworn statement.
8. The learned Magistrate has also relied on the report submitted by the police in respect of the enquiry directed by him under Section 202, Cr.P.C. He has also stated that the-Police have reported after examining the witnesses and looking into the relevant documents, produced by the parties, that the (respondents) accused have not committed any offence. He states that, the police report discloses that there is absolutely no evidence either oral or documentary, to show that any offence was committed by the accused, and that even the sworn statement of the complainant does not disclose any such offence is committed by the-accused. The learned Magistrate has accepted the police report and relied on it in coming to to the conclusion that no prima facie case has been made out for issuing process.
I am, therefore, of opinion that even after excluding the version of the accused and the documents produced by them before the learned Magistrate, there is ample material before? the learned Magistrate to come to the conclusion that the complaint and the sworn statement, of the complainant do not disclose any prima facie case of an offence under Section 395,, I.P.C. I am also of opinion that no useful purpose would be served by remanding the case back to the learned Magistrate, because the-learned Magistrate, even before referring to the accused's version and the documents produced by them has come to the categorical conclusion, that no offence either of theft, robbery or of dacoity has been made out by the complainant.
As contended by Sri Deshpande, it is, open to the complainant to go to the Civil Court and prove that he was in possession of the disputed land and that he had raised the tobacco op. The learned Magistrate has also taken the precaution of taking security from the accused-respondents when handing over the tobacco crop, in case the Civil Court came to the conclusion that the crops had been raised by the complainant in the disputed land. I am, therefore, of opinion that no case has been made out for interference with the order passed by the learned Magistrate dismissing the complaint.
9. In the result, this revision petition deserves to be dismissed and the same is hereby dismissed.