2011 ALL MR (Cri) 3635
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.P. BHANGALE, J.
Devang Kumar S/O. Gordhandas Soni & Ors.Vs.Keshor S/O. Gopaldas Daga & Anr.
Criminal Application (APL) No. 48 of 2011
26th July, 2011
Petitioner Counsel: Mr. A.T. Purohit
Respondent Counsel: Ms. S.H. Bhatia,R.R. Shrivastava,Mrs. K.D. Deshpande
Criminal P.C. (1973), S.204 - Issuance of process - It is a judicial discretion to issue process by examining the complainant or information submitted before the magistrate - The Magistrate is expected to make his decision on prima facie view of the case - At this preliminary stage the accused has no right to be present when process is issued against him.
It is a judicial discretion to issue process by examining the complainant or information submitted before the Magistrate and, Magistrate is expected to make his decision on prima facie view of the case. But, at this preliminary stage the accused has no right to be present when process is issued against him. The enquiry of the accused can only be considered after the accused appears in the the criminal proceeding pursuant to the service of summons. True it is that, it is within judicial discretion of the Magistrate concerned as to whether accused shall be called upon to face accusations made in the complaint. [Para 6]
JUDGMENT
JUDGMENT :- Heard Mr. A.T. Purohit, learned Advocate for the Applicants, Ms. S. H. Bhatia holding for R. R. Shrivasatava, learned Advocate for Respondent Nos. 1 & 2. Admit. By consent, taken up for final disposal forthwith.
2. By means of this application, applicants have prayed for quashing Summary Criminal Complaint No. 6662/10, pending before Judicial Magistrate, First Class, Court No. 4, Nagpur.
3. By the impugned order dated 21/10/2010, it appears that the learned JMFC, Court No. 4, Nagpur after perusal of the complaint, verification in support thereof and documents filed by the complainant, was pleased to find prima facie ground to issue process under Section 500 of the IPC against the accused no. 1, 2 & 3 on payment of due process fees. It is contended that the learned Judicial Magistrate, First Class, while issuing summons excluded all the other sections while cognizance was taken limited to Section 500 of Indian Penal Code.
4. It appears private complaint alleged, offences punishable under Section 177, 182, 192, 196, 209, 211, 464, 499 & 500 read with Section 34 of IPC. The learned Magistrate while taking cognizance, in view of the Section 190 of Code of Criminal Procedure, is expected to use judicious discretion upon receiving a complaint of facts constituting various offences mentioned therein. Chapter XV of the Code of Criminal Procedure, complaints to Magistrate, requires the Magistrate concerned to take steps under Section 200 and subsequent Sections as he may deem it fit. After taking steps as contemplated under Chapter XV of Code of Criminal Procedure, it is open for the Magistrate if he finds that there is no sufficient ground to proceed further he may dismiss the complaint, on the other hand, if he finds sufficient ground to proceed further, he is obliged to issue summons for the attendance of the accused or warrant if need be for to compel presence of the accused.
5. According to learned Advocate for the applicant, such summons or warrant as the case may be cannot be issued until a list of prosecution witnesses has been filed and, furthermore, summons which were issued should be accompanied by a copy of the complaint.
6. The legal position in this regard is clear that it is a judicial discretion to issue process by examining the complainant or information submitted before the Magistrate and, Magistrate is expected to make his decision on prima facie view of the case. But, at this preliminary stage the accused has no right to be present when process is issued against him. The enquiry of the accused can only be considered after the accused appears in the the criminal proceeding pursuant to the service of summons. True it is that, it is within judicial discretion of the Magistrate concerned as to whether accused shall be called upon to face accusations made in the complaint. Prima facie in this case it appears that various sections have been mentioned in the complaint with reference to accusations. The process was however issued limited only to offence punishable under Section 500 of Indian Penal Code. No reason is given as to why it is not issued in respect of other accusations made in the complaint.
7. In these circumstances, it is necessary in the interest of justice to set aside the impugned order dated 21/10/2010 and it is accordingly set aside and quashed with direction to the Magistrate to apply his mind afresh to the complaint instituted before him by taking steps as contemplated under Chapter XV of Code of Criminal Procedure and then to pass the appropriate order. Defense contentions put forward, if any, can be considered by the Magistrate concerned only after the accused appears pursuant to service of process; if issued under Section 204 of Cr. P. Code.