A.P. Bhangale, J.@mdashRule. Rule made returnable forthwith. Matter is taken up for hearing with consent of learned Advocate.
2. Heard Mr. Rajnish Vyas, Advocate for Petitioner, Mr. Mehroz Pathan, APP for the Respondent No. 1 and Mr. A.M. Rizwy, Advocate for the Respondent no2.
3. The Petitioner questioned the order dated 27.07.2010 passed by the learned Judicial Magistrate First Class, Court No. 6, Nagpur in Summary Criminal Complaint No. 5314/2008. The following order passed by learned Trial Court is as under:
Read the complaint, verification of the complainant and documents filed by the complainant on record. Heard Advocate Mr. Rizvi for the complainant. On perusal of the complaint and verification of the complainant, it seems that the complainant have made out the prima facie substance for issuance of process for the offence punishable under sections 504, 506 and 509 read with section 34 of the Indian Penal Code. Therefore, issue summons to accused No. 1 to 4 for the offence punishable under sections 504, 506 and 509 read with section 34 of the Indian Penal Code on paying process fees by the complainant within stipulated time returnable on 24th August, 2010.
4. The learned Advocate for the Petitioner contended that the aforesaid order did not consider the report submitted by the PSO, Police Station Sadar, Nagpur pursuant to inquiry ordered u/s 202 of the Code of Criminal Procedure The statements of certain witnesses were produced by the police. It is submitted that on behalf of the Petitioner that it was necessary for the learned Magistrate who had ordered inquiry u/s 202 of the Code of Criminal Procedure to pass a reasoned and speaking order and to consider the report u/s 202 of the Code of Criminal Procedure made by the police dated 20.11.2008. The learned Advocate for the Petitioner submitted that the police report submitted to the learned Magistrate in respect of the incident dated 08.03.2008 stated that no evidence was available, while annexing statement about eight witnesses to the report. Thereafter on 18.12.2009, the learned JMFC, Court No. 6, Nagpur had passed an order calling upon the complainant to lead evidence and examine witnesses, if any, regarding the incident. According to the learned Advocate for the Petitioner the complainant did not examine any witness nor led evidence pursuant to the order dated 18.12.2009 passed by the learned Magistrate. Thereafter on 27.07.2010 learned JMFC, Court No. 6, Nagpur decided to issue process by passing the above referred order. It is submitted that the complaint filed by the Respondent was with a view to counter blast the earlier complaint filed by the Petitioner by abuse of process of law, therefore, the complaint is liable to be quashed. Further according to the learned Advocate the allegations made in the complaint did not spell out the offence as alleged punishable under sections 504, 506 and 509 read with Section 34 of the IPC. The learned Magistrate ought to have considered the report submitted u/s 202 of the Code of Criminal Procedure by the Police, also the fact that despite order passed by the learned Magistrate complainant chose not to lead evidence nor examined the witnesses. Therefore, it is contended that the order dated 27.07.2010, is liable to be quashed and set aside. According to learned Advocate for the Petitioner the continuation of criminal proceedings would be an abuse of the process of law, because of casual approach to issue process merely on the basis of perusal of the complaint and verification while ignoring the report made u/s 202 of the Code of Criminal Procedure as also omission on the part of the complainant to lead evidence in support of the complaint although the complainant was called upon to lead evidence and/or to examine the witnesses pursuant to the order dated 18.12.2009.
5. The learned Advocate for the Petitioner made reference to ruling reported in
6. In the present case, the order regarding issuance of process was passed on 27.07.2010. Earlier on 07.05.2008 police were directed to inquire in view of section 202 of the Code of Criminal Procedure and to submit their report. Accordingly report u/s 202 was submitted on 20.11.2008 along with statement of certain witnesses. Thereafter also the learned Magistrate called upon the complainant to lead evidence and examine the witnesses, if any, regarding the incident by order dated 18.12.2009. Later the learned Magistrate by order dated 27.07.2010, after perusal of the complaint and verification and documents filed by the complainant on record and after hearing the learned Advocate for the complainant found that there was prima facie substance for issuance of process for offence punishable under sections 504, 506 and 509 read with section 34 of the IPC. Thus, he issued summons to accused No. 1 to 4, accordingly on payment of process fees by the complainant returnable on 24th August, 2010. I had specifically queried learned Advocate for the Petitioner as to whether it was obligatory for the learned Magistrate to consider the report u/s 202 of the Code of Criminal Procedure He placed reliance upon Banwarilal Purohit and Anr. v. Ramdeo Baba Sahkari Griha Nirman Samiti Limited, Nagpur and another referred above. In the the said ruling it was concluded with reference to the case that the report u/s 202 Code of Criminal Procedure was not received at all. Naturally, when such is the position, the Magistrate should not have proceeded ahead for taking further action i.e. for taking steps either u/s 203 or u/s 204 of the Code of Criminal Procedure Thus, in the facts and circumstances of the case; order regarding issuance of process was quashed in exercise of jurisdiction u/s 482 of the Code of Criminal Procedure and the Magistrate was directed to consider the question of issuance of process afresh after the report of Police Officer u/s 202 of the Code of Criminal Procedure is received. The Police Station concerned was directed to submit a report. Thus it is held that the learned Magistrate can consider the question afresh in accordance with law.
7. The learned Advocate A.M. Rizwy, questioned maintainability of the petition on the ground that the remedy by way of criminal Revision u/s 397 of the Code of Criminal Procedure is available and therefore, petition ought not to be entertained. The learned Advocate for the Petitioner relied upon ruling in Dhariwal Tobacco Products Limited and Ors. v. State of Maharashtra and Anr. reported in (2009) 2 SCC 370, in para 7 the Apex Court while considering the section 482 as well as 483 observed that, "the inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of". The Apex Court concluded with reference to ruling in
8. The Chapter XV Complaints to Magistrates, in the code enable a Magistrate to entertain the complaint with a view to issue process. The Magistrate may postpone the decision to issue process by ordering police to investigate u/s 202 of the Code of Criminal Procedure and report for the purpose of decision as to whether or not there is sufficient ground for to proceed further. After receiving said report as to inquiry u/s 202 of the Code of Criminal Procedure the Magistrate has option to dismiss the complaint u/s 203 of the Code of Criminal Procedure on the ground that there is no sufficient ground to proceed further by recording reasoned order or if he has decided not to dismiss the complaint he may take cognizance of an offence and issue process upon satisfaction that there is sufficient to proceed further. Postponement of issue of process is therefore, for to adopt a precaution before issuing process upon satisfaction regarding sufficient ground to proceed in the matter.
9. Chapter XVI is regarding Commencement of Proceedings Before Magistrates, when the Magistrate taking cognizance of an offence is of the opinion that there is sufficient ground to proceed further he shall issue process against the accused on payment of process fees. It is a preliminary stage of trial which is contemplated in accordance with law. The accused can come into picture only when the process is issued for attendance of the accused before the Court.
10. The learned Advocate A.M. Rizwy, made reference to Jagdish Ram v. State of Rajasthan in Criminal Appeal 357 of 1997 decided on 09.03.2004 before Supreme Court of India (D.B.)
It is well settled that notwithstanding the opinion of the Police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons.
The Apex Court made reference in
11. In the facts of the present case it appears that the learned Magistrate had recorded verification of the complainant on 29.04.2008, he decided to postpone the issuance of process by ordering an inquiry u/s 202 of the Code of Criminal Procedure and also received the police report dated 20.11.2008. Therefore, it cannot be said that the learned Magistrate did not wait for receiving the report u/s 202. It was already received on 20.11.2008. The learned Magistrate had also called upon complainant to lead evidence and examine the witnesses, if any, regarding the incident. Although complainant did not lead evidence accordingly; the learned Magistrate after recording verification of the complainant and documents on record and after hearing the learned Advocate for the complainant satisfied himself about prima facie substance of accusations for issuance of process for the offence punishable u/s 504, 506 and 509 read with section 34 of the IPC and issued the process. Looking into these facts it cannot be said that the order passed by the learned Magistrate was contrary to law since it is always open for the Magistrate to issue process on the basis of prima facie sufficient ground. Notwithstanding the fact that the Magistrate had ordered police to inquire and received such police report in that case even if no offence is disclosed by the police. It is open for the learned Magistrate to examine the complainant and record verification and hear the complainant before he can take decision either to dismiss the complaint u/s 202 or to proceed further to issue process u/s 204 of Code of Criminal Procedure The order in question indicated satisfaction of the Magistrate regarding sufficient ground to proceed further. No detailed inquiry was contemplated nor scrutiny and evaluation of the material was required in the case. The inquiry was limited to find out as to whether there is prima facie sufficient ground to proceed further. There was no need for the Magistrate to enter into the detailed discussion about merits and demerits of the complainant''s case at the stage of preliminary inquiry before issuance of process.
12. The learned Magistrate appears to have considered the averments made in the complaint as well as verification of the complainant as to accusations, upon prima facie hearing of the matter. No illegality or impropriety is found in the order and no exceptional case is made out for to interfere with impugned order in exercise of writ jurisdiction or in exercise of inherent powers u/s 482 of the Code of Criminal Procedure
The application is sans merits and stands dismissed.
Rule is discharged accordingly.
