1. This is an application pur-porting, to have been filed Under Section 483 of the Cr. P. C., by one Dr. B.S.J. Bedi, the former Chief Justice of the Sind High Court who has argued the case in person.
2. The facts giving rise to this application as stated by him in person are briefly these : He was serving as a Chief Justice of the Sind High Court. On 31st Aug. 1958 be was relieved of his services and then he came to India along with his aged mother. The Government of India gave him three houses and a plot admeasuring 400 sq. yds. at Ulhasnagar. This property was worth about Rs. 2 lacs. Immediately thereafter he went to Amritsar and started working as a religious teacher in the Golden Temple. His duty was to explain the philosophy of Guru Nanak to the foreigners. He claims to have donated his entire property worth Rs. 2 lacs to the Golden Temple. His grievance is that respondents 4, 5 and 6 who according to him are Gundas with several previous convictions to their discredit, wanted to grab his properties at Ulhasnagar. On 27th Feb. 1977 according to him at about 9 p. m. respondent, whose name he did not know when he filed this petition and whose name he has since discovered to be one Ganesh, threw a burning cigarette end on a nylon cloth which was kept in the Gurugranth and thereby the cloth caught fire but he did nothing about it as he had no knowledge as to who the miscreant was.
3. It is further his case before me that on the night of 27th and 28th Feb. 1977, he got up at 3 a.m. as it is his practice to wake up at that time. His attention was attracted by the smell of burning cloth. He saw a big cloth burning below his cot and then after opening the window he saw three persons running away with tins in their hands. Those persons according to him were respondent Nos. 4 to 6. That is why, says the applicant, he went to a neighbour who owned a phone and contacted the police. As nobody came he personally went to the Shahad police station at 7 a.m. and lodged a complaint with the Circle police Inspector. But as no member of the police turned up till 11a.m. he wrote out a complaint and went and contacted the Judicial Magistrate, First Class, Ulhasnagar, respondent No. 2. His main grievance is that though he made a request to the Judicial Magistrate, First Class, by telling him that he was Chief Justice of Sind High Court and that he should be immediately examined on oath Under Section 200 of the Cr. P. C., the learned Magistrate, according to him, told him that it was not necessary to examine him as he being a retired Chief Justice, would be a public servant and that on the other hand the learned Magistrate expressed his desire to send the complaint to the police for enquiry and report Under Section 202 of the Cr. P. C.
4. Being aggrieved by the conduct of the Magistrate, the applicant contacted the Sessions Judge of Thana, The Sessions Judge then gave a chit to the applicant and asked him to contact the Chief Judicial Magistrate, Thana. The Chief Judicial Magistrate, thereafter received the complaint of the applicant and made an endorsement thereon and handed it over to the applicant who in turn went and handed it over to the Judicial Magistrate, First Class Ulhasnagar at 5 p.m.
5. It is the grievance of the applicant that without examining him the Magistrate forwarded the complaint to the police for investigation and report within 7 days. But finding that there was no response from the police till 17th March 1977, says the applicant, he was obliged to move this Court by filing this application purporting to be one Under Section 483 of the Cr. P. C.
6. The matter being called out before Shimpi J., Shimpi J. directed him to produce the order of the Magistrate refusing to issue a process. The matter rested there only as no such order was passed by the Magistrate till then.
7. It may be mentioned that mean while the Circle Inspector of Ulhasnagar has submitted a detailed report dated 28th March 1977 and for the reasons mentioned by him therein which it is not necessary to state, he concluded that the allegations mentioned in the application are false, concocted and mischievous.
8. On receipt of the said report the learned Judicial Magistrate, Ulhasnagar by his order dated 31st March 1977 has passed an order that as there is no prima facie case as appears from the report, no process could be issued.
9. The applicant has made a grievance after drawing my attention to the provisions of Section 200 of the Cr. P. C., that the learned Magistrate ought not to have referred the matter to the police and that he should have examined him immediately for which a special request was made by him to the Magistrate and that in refusing to do so, the learned Magistrate has not acted properly.
10. It. would appear from the facts stated that the application made by the applicant no longer survives having regard to the fact that in between the presentation of this application and today the report of the police Under Section 202 Cr. P. C., being received the Magistrate has already refused to issue process in the matter on the ground that no prima facie case is made out. It is needless to say that that order is not and could not have been challenged by the applicant when he made this application. However, his grievance is that the Magistrate ought to have examined him immediately and ought not to have postponed the issue of process till receipt of the report by the police. He further says that the Magistrate ought not to have sent his complaint to the police for investigation and report.
11. The question has got to be resolved by reference to the provisions of Sections 200 and 202 Cr. P. C. Section 200 of the Cr. P. C., reads as under :--
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses.
12. Section 202 of the Cr, P. C., reads as under :--
202 (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him Under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
Provided that no such direction for investigation shall be made.--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session ; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath Under Section 200.
(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for the investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
13. It is, therefore, clear and it is also settled law that a Magistrate is not bound to issue the process and if he thinks fit, it is perfectly open to him Under Section 202, to postpone issue of process against the accused and to direct an investigation to be made by a police officer. Since the Magistrate has chosen to do so in his discretion. I do not think than any grievance could be made by the applicant about it. In any event as I have pointed out the main application no longer survives having regard to the fact that in the meanwhile after receipt of the report of the police, the Magistrate has refused to issue a process by holding inter alia, that there is no prima facie case.
14. In the result, no relief could be given to the applicant by this Court Under Section 483 of the Cr. P. C. The application is, therefore, dismissed. Rules discharged.