TMI Blog1985 (11) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... sidence of the accused and recorded her statement on oath. Question No. 2 in the statement and the answer given to it by the accused was as follows: " Qus. No. 2: Whether you have any bank accounts, bank lockers, fixed deposits, shares either in your name or jointly with any other person ? What are your immovable and movable assets ? Please state in brief ? Ans. : I have got one savings account bearing a/c. No. 18732 with the Central Bank of India, Kalbadevi Branch, Bombay. There is no locker in my name or in joint name with any bank. So far as I know, I do not have any fixed deposit or shares from companies. As regards immovable properties I have got only one asset, that is flat at 57, Blue Haven, Mount Pleasant Road, Bombay. As rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n offence under sections 181 and 193 of the Indian Penal Code. She had given false statements which she knew and believed to be false. The complaint was filed by the complainant against the accused under sections 181 and 193 of the Indian Penal Code in the court of the Metropolitan Magistrate, 37th court, Esplanade, Bombay. The learned Metropolitan Magistrate refused to issue process and dismissed the complaint by his order dated January 27, 1984. Challenging the same order, the petitioner filed this Criminal Revision Application. Shri Gumaste, the learned counsel for the petitioner, stated that during the course of the search, the complainant was authorised to examine the accused on oath. According to him, her statement was recorded und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1976 SC 1947, where it is observed as under (p. 1951 of AIR) : " The scope of the inquiry under section 202 of the Code of Criminal Procedure is extremely limited-limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint-(i) on the materials placed by the complainant before the 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 the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is not the province of the magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arefully see the statement and the last question in it, it is abundantly clear that this statement was recorded before the search commenced and, therefore, an inference cannot be drawn that the impugned statement was recorded during the course of the search proceedings. He further submitted that the accused in this case is facing criminal proceedings and, therefore, the legal provisions must be very strictly construed. If on the face of the complaint and the documents relied upon the offence is not disclosed, the Magistrate was right in dismissing the case. It was submitted by him that as the things mentioned in the section were not found in the possession or control of the accused, the officer who administered the oath and questioned has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment, he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused on oath during the course of search only in the event the accused was found in possession or control of the things mentioned in the section. It is not disputed that her impugned statement was recorded at 6.30 p.m., i.e., before the search commenced. Therefore, I am in agreement with Shri Vakil that the complainant has exceeded his authority under the provisions of the said section by putting certain questions to the accused before commencing the search. Moreover, this power of examining her on oath could have been exercised by him within the four corners of section 132(4) and not otherwise. To my mind, the powers conferred by section 132(4) of the Act have been misused in the present case. The power to interrogate on oath conferred by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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