SK.TAHIR v. THE STATE OF BIHAR

compromised between the parties and she was desirous of withdrawing the case as she had lodged the instant case at the instigation of some other persons and notwithstanding these facts the learned Magistrate had proceeded to take cognizance which only goes to indicate that the Magistrate had not applied his independent and judicial mind before passing the impugned order. Admittedly, the instant case on the basis of the protest petition has proceeded as a complaint case. The entire scheme of Chapter XVI of the Code of Criminal Procedure shows that an accused person does not come into the picture at all till the process is issued. This does not mean that he is precluded from being present when an inquiry is held by a Magistrate. He may remain present either in person or through a counsel with a view to be informed 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 proceeding nor has the Magistrate any jurisdiction to permit him to do so.

It would thus follow 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 he examine any witness at the instance of such a person. Therefore, the affidavits filed by the relatives of complainant and the petition under Section 257 Cr.P.C. filed by the - 4 - complainant were nugatory and having no value the learned Magistrate holding the inquiry could not have looked into these documents since they happen to be the matters extraneous to the proceeding before him. The Apex Court in the case of Ramgopal Ganpatirai Ruia Vs. State of Bombay (AIR 1958 SC 97) observed that in each case the Magistrate holding the preliminary enquiry has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied he is not to commit.

Then again in Chandra Deo Vs. Prokash Chandra (AIR 1963 1430) the Apex Court held that since the object of an inquiry under Section 202 Cr.P.C. is to ascertain whether the allegation made in the complaint are intrinsically true, the Magistrate acting under Section 203 Cr.P.C. has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion he is entitled to consider the evidence taken by him or recorded at the inquiry under Section 202 Cr.P.C. He is not entitled to rely upon any material besides this. Where there is prima facie evidence, even though an accused may have a defence that the evidence was committed by some other person or persons, matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. There is another aspect of the matter. Initially the complainant had filed a complaint which on being transmitted to the police had been numbered as Amdabad P.S. Case No.53 of 2002 wherein the police after due investigation submitted a final form.

This was followed by a protest petition which on being converted was levelled as Complaint Case No.69 - 5 - of 2003 wherein inquiry was held and cognizance was taken. Where the prosecutrix was so adament to pursue the matter, it is difficult to reconcile as to how and why the relatives of the prosecutrix filed the affidavits in support of the petitioner and why subsequently the prosecutrix herself wished to withdraw the complaint petition unless the efforts were on to tamper with evidence. Even otherwise, an offence under Section 376 I.P.C. is not compoundable and in this context the petition filed by the complainant hardly has any worth. Then again the submissions on behalf of the petitioner that the relatives of the prosecutrix in their affidavits have stated that the prosecutrix had filed the instant complaint allured by the authors of Israful is a matter which is required to be proved by leading cogent and corroborating evidence.

Mere statement by way of submissions is not sufficient to place reliance on such matters. Due regard being had to the facts and the circumstances of the case, I find no apparent illegality or impropriety in the impugned order passed by the learned Magistrate. There is no merit in this application which is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 23rd of January, 2009. Pradeep Srivastava/A.F.R.