G.Prabakaran v. Dr.Selvaraj

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.26084/2006Crl.MP.No.1/20061.G.Prabakaran2.Ginette @ LathaPetitioners VsDr.Selvaraj RespondentsPrayer:- This Criminal Original Petition is filed to call for therecords in CC.No.133/2005 on the file of the Judicial MagistrateNo.2, Tindivanam and quash the same.For Petitioner:Mr.IlanthiraiyanFor Respondents:No Appearance ORDERThe petitioners are the Accused Nos.1 and 2 inCC.No.133/2005, on the file the Judicial Magistrate II, Tindivanamand proceeded for the offences under Sections 192, 193, 194, 200,499 and 500 read with 34 of IPC.2. The facts of the case are that the private complaint wasfiled by the respondent under Section 200 of Code of CriminalProcedure against the petitioners for defamation, alleging that thecomplaint lodged by the 1st petitioner before the Inspector ofPolice, Marakkanam was enquired by the concerned Police and foundto be false and hence, the allegation made therein amounts todefamation. It is seen that a legal notice was issued on 23.1.2004and a reply notice was issued by the 1st petitioner on 15.2.2004 andthereafter, a rejoinder was sent on 28.2.2004 before lodging of theprivate complaint.3. The facts leading to the filing of the privatecomplaint by the Respondent are as follows:-The Respondent and the 2nd petitioner are the husband andwife and the respondent had made allegations that the secondpetitioner and the 1st petitioner were living in adultery and he isstated to have distributed more than 500 copies of the said replynotice, contending adultery allegation against both of them. The 1st https://hcservices.ecourts.gov.in/hcservices/ petitioner aggrieved over the same, lodged a complaint before theSub Inspector of Police, Marakkanam on 4.1.2004, but the saidcomplaint was closed after enquiry by the Police, as totally falseand baseless and the result was communicated to the respondent videletter dated 30.1.2004 by the Sub Inspector of Police, Marakkanam.Based on it, the respondent has lodged the present complaint beforethe learned Judicial Magistrate II, Tindivanam on 4.7.2005, who inturn has recorded, sworn the statement of therespondent/complainant, took the complaint on file asCC.No.133/2005 and posted the same for enquiry under Section 202 ofCode of Criminal Procedure on 20.7.2005. Process was issued to theaccused and on service of summons, both the petitioners/accusedappeared before the learned Judicial Magistrate II, Tindivanam andthey were furnished with a copy of the complaint. That apart,enquiry under Section 202 of Code of Criminal Procedure wasconducted and during such enquiry, the petitioners were required tocross-examine the witnesses as in the trial proceedings. Aggrievedover the said course of action by the learned Magistrate, thepetitioners have filed this Criminal Original Petition to quashthe said proceedings, contending that the proceedings are illegaland sheer abuse of process of law.4. The learned counsel for the petitioners has vehementlycontended that enquiry under Section 202 of Code of CriminalProcedure can in no sense be characterised as a trial for anoffence and the object of the enquiry under Section 202 of Codeof Criminal Procedure is to ascertain the truth or falsehood of thecomplaint, the learned Magistrate, making the enquiry has to dothis only with reference to the intrinsic quality of the statementsrecorded on oath made by the complainant and the statements madebefore him at the enquiry, which would naturally mean the complaintitself, the statement made before him by the persons examined atthe instance of the complainant. He would further contend that itis irregular to issue notice to the accused before such issuance ofprocess and conducting enquiry in the presence of the accused andallowing the accused to cross-examine the prosecution witnesses istotally not warranted.5. The object of enquiry under Section 202 of Code ofCriminal Procedure is to ensure that no person shall be compelledto answer a criminal charge unless the court is satisfied thatthere is a prima facie case for proceeding with issuance of processagainst the accused person. The learned Magistrate has got to findout as to what material there is to support the allegation made inthe complaint against the person complained.6. No doubt, one of the objects behind the provisions ofSection 202 of Code of Criminal Procedure is to enable theMagistrate to scrutinise carefully the allegations made in thecomplaint with a view to prevent a person named therein as accusedfrom being called upon to face an obvious frivolous complaint.That does not mean that the accused should be called upon to face https://hcservices.ecourts.gov.in/hcservices/ an accusation, as in an enquiry under Section 202 of Code ofCriminal Procedure, the accused has no right to take part in thesaid proceedings nor has the learned Magistrate any jurisdiction topermit him to do so. It would follow from this that it would not beopen to the learned Magistrate to put any question to the witnessesat the instance of the persons named as accused nor can he examineany witness at the instance of such a person.7. In the case of Chandra Deo Singh Vs. Prokash ChandraBose (AIR-1963-SC-1430), the Hon'ble Supreme Court had, after fullyconsidering the matter, observed as follows:-"The courts have also pointed out in these cases thatwhat the Magistrate has to see is whether there isevidence in support of the allegations of thecomplainant and not whether the evidence is sufficientto warrant a conviction. The learned Judges in someof these cases have been at pains to observe that anenquiry under Section 202 is not to be linked to atrial which can only take place after process isissued and that there can be only one Trial. Nodoubt, as stated in sub Section (1) of Section 202itself, the object of the enquiry is to ascertain thetruth or falsehood of the complaint, but theMagistrate making the enquiry has to do this only withreference to the intrinsic quality of the statementsmade before him at the enquiry which would naturallymean the complaint itself, the statement on oath madeby the complainant and the statements made before himby persons examined at the instance of thecomplainant."8. Indicating the scope and ambit of Section 202 of Codeof Criminal Procedure, in the case of Vadilal Panchel Vs. DattatryaDulaji (AIR-1960-SC-1113), the Hon'ble Supreme Court had observedas follows:-"...... The inquiry is for the purpose of ascertainingthe truth or falsehood of the complaint; that is, forascertaining whether there is evidence in support ofthe complaint so as to justify the issue of processand commencement of proceedings against the personconcerned. The section does not say that a regulartrial for adjudging the guilt or otherwise of theperson complained against should take place at thatstage; for the person complained against can belegally called upon to answer the accusation madeagainst him only when a process has issued and he isput on trial."9. It would be, thus, clear from the above said decisionsof the Hon'ble Supreme Court that the scope of enquiry under https://hcservices.ecourts.gov.in/hcservices/ Section 202 of Code of Criminal Procedure is extremely limited -limited only to the ascertainment of the truth or falsehood of theallegations made in the complaint that is (i) on the materialsplaced by the complainant before the court, (ii) for the limitedpurpose of finding out whether a prima facie case for issue ofprocess has been made out and (iii) for deciding the questionpurely from the point of view of the complainant without at alladverting to any defence that the accused may have. In fact it iswell settled that in proceedings under Section 202 of Code ofCriminal Procedure, the accused has got absolutely no locus standiand is not entitled to be heard on the question whether the processshould be issued against him or not. The enquiry is not intendedto supersede a regular trial. 10. In the case on hand, the learned Magistrate hasmisdirected himself as to the scope of the enquiry under Section202 of Code of Criminal Procedure and has erroneously issued noticeto the petitioners and allowed them to participate in the saidenquiry. Therefore, I hold that the enquiry made by the learnedMagistrate converting into a full process trial is illegal and thesame stands vitiated. Hence, the proceedings in CC.No.133/2005 onthe file of the learned Judicial Magistrate II, Tindivanam deservesto be quashed and accordingly, the same is quashed. This criminaloriginal petition stands allowed. Consequently, the connected MP isclosed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarSrcm To:1. The Judicial Magistrate No.2, Tindivanam.2. -do- Through The Chief Judicial Magistrate, Pondicherry.3. The Public Prosecutor, High Court, Madras+1 cc to Mr.Sai,Bharath & Ilan, Advocate, SR.No.25496 Order in Crl.OP.No.26084/2006TEJ {CO}TP/20.7.2009.