(August 10, 2001) 2001 (TLS)125430

2001-DLT-94-87 :: 2001-AD (Del)-6-628

TEJINDER KAUR Vs. Manful a Chakarvarty

K. S. GUPTA

( 1 ) IN this revision petition filed under sections 397/401 Criminal Procedure Code. the prayer clause which is material, reads thus :-

"it is, therefore, prayed that your lordships may graciously be pleased to revise the impugned order of the Hon ble trial court dated 22. 12. 2000 in complaint No. 274/1 of 2000 passed by shri Vinod Kumar, Metropolitan magistrate, New Delhi, by :- a) setting aside the impugned order dated 22. 12. 2000 parsed by the Hon ble trial Court in the above stated matter. b) directing the trial court to issue summons to all the 5 accused in the above stated matter Under section 204, after this Hon ble court holds that prima facie there exist enough evidence on record in the complaint and the accompanying documents indicating commission of offences by the accused persons in terms of the test to be applied in such case s after conclusion of the pre-summoning arguments. c) passing any other order (s) that the hon ble court may deem fit in the facts and circumstances of the case and in the interest of justice. "

( 2 ) COMPLAINT (copy at pages 25 to 40), the contents whereof need not be reproduced for deciding the revision, was filed against dr. Manjula Chakravarty and 4 others for the offences under sections 406, 418, 465, 1206 and 193 indian Penal Code. The petitioner after examining herself as cw-1 closed evidence on 19th August 2000. She also referred, to some of the documents filed alongwith complaint in her statement. In terms of the order under challenge dated 22nd December 2000 the Metropolitan Magistrate postponed the issue of process and directed investigation to be made by sho, Haus Khas who was to file report on or before 8th March 2001. Relying on the decision in rajendra Mohan Sinha and others vs. Nimal Chand sinha and others. AIR 3969 Tripura 15, it was argued by the petitioner that said order is bad in the eye of law in as much as it does not disclose any reason why the Metropolitan magistrate chose to direct the investigation to be made by SHO, Haus Khas. In the said decision in a complaint against respondents 1 to 5 for the offence under section 395 Indian Penal Code the SDM after recording the statement of complainant had made an order, without recording reasons, on 38th August 1966 requiring Circle Officer to enquire and report into the allegations by 19th September 1966. Said order was held to be erroneous as it did not reflect the reasons which compelled the sdm to pass that order. It may be noticed that said decision was rendered with reference to section 202 of old Criminal Procedure Code. 1898 and new Section 202 of Criminal Procedure Code. , 1973 has done away with the provision requiring a Magistrate to record his reason in case he postpones the summoning of accused and orders for enquiry or investigation in the complaint. Obviously, Rajendra Mohan s case (supra) has no applicability and no legal fault can be found with the impugned order on said count.

( 3 ) IT was next contended by the petitioner that scope of enquiry under section 202 Criminal Procedure Code. is limited to the ascertaining of truth or falsehood made in the complaint (i) on the materials placed by the complainant before court : (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out and (iii) for deciding a question purely from the point of view of the complainant wihtout at all adverting to any defence that the accused may have. It wes pointed out that the allegations made in complaint are supported by documentary evidence, therefore, there was hardly any ground for the Metropolitan Magistrate to have directed investigation in the matter by SHO, Haus Khas in terms of aforesaid order. In support of submission, reliance was placed on the decisions in Laxmi Kishore Tonsekar vs. State of Maharashtra 1993 Mh. LJ. 609. Smt. Nagawwa