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Chandulal Gokaldas Vs. Gijubhai Purshottamdas Patel and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR1458
AppellantChandulal Gokaldas
RespondentGijubhai Purshottamdas Patel and anr.
Cases ReferredHanumantha Rao v. State of Andhra Pradesh (supra
Excerpt:
- - along with the said miscellaneous application he bad also filed miscellaneous criminal application no. at that time the accused became angry and he abused the complainant and insulted him and asked him to do whatever he liked. (emphasis added). 5. in pursuance of the said direction given by this court, the petitioner as well as respondent no. (3) he further submitted that under section 258 or the code, the magistrate is empowered to drop proceedings in any summons case instituted otherwise than upon a complain f. thus, the principle of classification of offences and of different categories of cases relating to the trial of offences is a well-establish rule of criminal procedure. judicial magistrate, parvatipuram reported in 1971crilj253 held that the discretion was vested in a.....m.b. shah, j.1. the petitioner has filed the aforesaid miscellaneous criminal application no. 1698 of 1982 for quashing the proceedings in criminal case no. 963 of 1982 pending before the metropolitan magistrate, court no. 2, ahmedabad. along with the said miscellaneous application he bad also filed miscellaneous criminal application no. 1785 of 1982 wherein he had prayed that sections 190 and 251 of the criminal procedure code, hereinafter referred to as 'the code,' be declared as unconstitutional and illegal. the petitioner also prayed that the procedure prescribed for the summons cases beginning from section 251 to section 259 is unreasonable and is, therefore, in violation of article 21 of the constitution.2. in order to appreciate the contentions of the petitioner, a few relevant.....
Judgment:

M.B. Shah, J.

1. The petitioner has filed the aforesaid Miscellaneous Criminal Application No. 1698 of 1982 for quashing the proceedings in Criminal Case No. 963 of 1982 pending before the Metropolitan Magistrate, Court No. 2, Ahmedabad. Along with the said Miscellaneous Application he bad also filed Miscellaneous Criminal Application No. 1785 of 1982 wherein he had prayed that Sections 190 and 251 of the Criminal Procedure Code, hereinafter referred to as 'the Code,' be declared as unconstitutional and illegal. The petitioner also prayed that the procedure prescribed for the Summons Cases beginning from Section 251 to Section 259 is unreasonable and is, therefore, in violation of Article 21 of the Constitution.

2. In order to appreciate the contentions of the petitioner, a few relevant facts may be noted first. Respondent No. 1 had filed the aforesaid criminal complaint being Criminal Case No. 963 of 1982 on 15-5-82 before the Metropolitan Magistrate, Court No. 2, inter aha contending that the Gujarat Ginning & . was the owner of land bearing S. Nos. 217/1 and 218 situated near Prem Darwaja, Ahmedabad. In 1972 out of the said land, land admeasuring 100 sq. yards was rented to the accused-petitioner in the name of Gokaldas & Sons. The standard rent of the said premises was fixed at Rs. 260/- per month by Ahmedabad Small Causes Court. The said standard rent was determined by compromise in appeal on 31st July 1978. Adjoining the land which is rented to the accused, there was other open space owned by the complainant in that occupation wherein there is one boiler, pump and chimney. For maintaining the said boiler, pump and chimney, a hedge of corrugated iron sheets is constructed by them and that the complainant was using open space for going in, and coming out of, the said hedged portion. It is further alleged that 15 days prior to the date of filing complaint the accused has constructed 7 ft. wall on the open land which was in possession of the complainant in area admeasuring round about 300 sq. yards, thereby the accused has committed criminal trespass and also has wrongfully restrained the complainant from using the other land wherein boiler, pump and chimney are situated. The complainant has further averred that when he came to know about the said trespass, he inquired from the accused why he had committed criminal trespass. At that time the accused became angry and he abused the complainant and insulted him and asked him to do whatever he liked. On these allegations the complaint for the offences punishable under Sections 447, 341 & 504 of the Indian Penal Code was filed. After verification the Metropolitan Magistrate has issued summons for the offences punishable under Sections 447 and 341 of the Indian Penal Code on 15-5-82.

3. It seems that on 9-6-82 the plea of the accused was recorded and he had not pleaded guilty to the offence. The learned Magistrate has proceeded with the trial as the case was summons triable case. On 18-6-82 the learned Advocate for the accused had filed an application contending that in the complaint there are incorrect and misleading statements concealing the material facts from the Court and the complaint does not disclose offence punishable under the Penal Code. He, therefore, prayed that the accused may be allowed to tender documents and photographs to substantiate his contention and thereafter to drop the proceedings against him as the complainant intended to harass the accused without just and legal cause.

4. The learned Magistrate rejected the said application by his order dated 23-6-82 against which the petitioner preferred Miscellaneous Criminal Application No. 772 of 1982 before this Court. After hearing both the parties, brother S. B. Majmudar J. by his judgment and order dated August 17, 1982 directed as under:

In the result, this application is allowed. The learned trial Magistrate is directed to permit the petitioner to produce whatever documents he wants to produce in support of his preliminary objection pursuant to his application dated 18-6-82. The learned Magistrate is also directed to permit respondent No. 1-original complainant to produce by way of rebuttal evidence which respondent No. 1 chooses to produce and thereafter, the learned Magistrate shall decide the preliminary objections raised by the petitioner pursuant to his application dated 18-6-1982 in accordance with law. Mr. Contractor for the petitioner submits that some reasonable time may be allowed to the petitioner to produce the documents in question. I accordingly direct that the petitioner shall be given six weeks' time from today to produce the relevant document before the learned trial Magistrate. Orders accordingly. Interim relief granted during the pendency of this application shall stand vacated.

(Emphasis added).

5. In pursuance of the said direction given by this Court, the petitioner as well as respondent No. 1 produced certain documents on record. After considering the said documents the learned Magistrate arrived at a conclusion that prima facie evidence on record reveals that the offence under Section 447 is committed. At the same time he held that 'as negative copies of the photographs were not produced, the photographs cannot be admitted in evidence. He further observed that for-proving the photographs oral evidence would be necessary to explain it and reveal the situation. He thereafter directed that the preliminary contention raised by the petitioner does not survive and, therefore, the complainant should proceed with the evidence. He held that at this stage he has no jurisdiction to drop the proceedings as held in his previous order dated 23-6-82 as there is no provision in the Criminal Procedure Code empowering the Magistrate to drop the proceedings in summons triable case without trial after summons are issued to the accused.

6. In this application, the learned Advocate for the petitioner has raised the following contentions:

(1) Section 190 of the Code is unreasonable as it gives unguided discretion to the Magistrate for taking cognizance of the offence on the complaint, upon police report and/or upon information received from any source other than police officer or upon his own knowledge that such offence has been committed and, therefore, it is violative of Article 14 and 21 of the Constitution of India.

(2) The procedure prescribed for trial of summons cases by Magistrate beginning from Section 251 to Section 259 is also unreason able inasmuch as it does not give any right to the accused point out that the complaint filed by the complainant is false frivolous and vexatious and, therefore, no summons ought have been issued and also it does not empower the Magistrate to drop the trial even if the materials brought on record revenue that the complainant is false and Frivolous.

(3) He further submitted that under Section 258 or the Code, the Magistrate is empowered to drop proceedings in any summons case instituted otherwise than upon a complain f. While the Magistrate has no such power to drop the proceedings instituted upon the complaint, and, therefore, also the said procedure is violative of Article 14 of the Constitution of India.

(4) On facts he submitted that as the complaint does not disclose any offence, therefore, proceedings against the petitioner should be quashed. He also submitted that the proceedings should quashed because dispute between the parties is of civil nature.

7. It is to be remembered that the Code has always prescribe different procedures for trial of offences varying with the gravity of the offences charged, or with the power of the Court before which accused person is placed on trial. Minor offences have been mane triable summarily, or the same accused person in respect of an offence triable summarily, may be so tried by a Magistrate specially empower in that behalf, or may be tried according to the ordinary procedure by a Magistrate not so empowered.

8. Less serious offences are triable by a Magistrate. More serious offences are triable by a Court of Sessions after there has beer preliminary inquiry and investigation by a police officer, or an inquire by a Magistrate, commonly described as commitment proceedings.

9. The Code has further classified offences triable by Magistrate of any class or by Magistrates of higher classes. There is, again cross-division of cases into warrant cases and summons cases. We reference to the powers of police officers, offences have been classification as cognizable offences and non-cognizable offences. For cognizable offence police is entitled to arrest the accused without warrant, a in non-cognizable case police has no authority to arrest without warrant. Thus, the principle of classification of offences and of different categories of cases relating to the trial of offences is a well-establish rule of criminal procedure. In cognizable cases after receipt of information of commission of offence it becomes the duty of police officer to record first information report and even in absence such first information he has power to investigate the case and take all steps necessary for the apprehension and arrest of the persons alleged to have been concerned with the crime. Even if the case is in the first instance not for cognizable offence, the police officer is bound to investigate such case if he is ordered to do so by a competent Magistrate taking cognizance of the offence under Section 190 of the Code. After completing the investigation the investigating officer is required to follow the procedure prescribed under Chapter XII of the Code and on submission of the police report by the police officer in charge of the police station, the Magistrate may take cognizance of the offence under Section 190 of the Code. If the Magistrate finds that the case is triable exclusively by the Sessions Court, be is required to commit the case to the Sessions Court.

Re : Submission No. 1:

10. Dealing with the first submission of the learned Advocate for the petitioner that Section 190 of the Code gives unguided discretion to the Magistrate for taking cognizance of an offence and that too without affording any opportunity to the accused to point out to the Magistrate that the complaint filed by the complainant or the police report submitted by the investigating officer or the information received by him from any other person or from any other source does not disclose any offence or the said complaint is false and frivolous or that the police report is based upon concocted materials and, therefore, Section 190 of the Code is violative of Articles 14 and 21 of the Constitution of India. According to his contention, as arbitrary powers are given to the Magistrate without there being any guideline, therefore it violates Article 14 and as the said procedure does not afford any reasonable opportunity to present the case of the accused before taking cognizance, therefore the said procedure is violative of Article 21 of the Constitution of India as it is unreasonable. In our view, the contention raised by the petitioner that Section 190 gives arbitrary power to the Court to take cognizance of the offence is without any substance. Section 190 of the Criminal Procedure Code no doubt gives discretion to the Magistrate, but the said discretion is a judicial discretion and the Magistrate is required to consider the material produced before him before taking cognizance of the offence. He is required under Section 190(1)(a) of the Code to consider the complaint and after taking into consideration the complaint and if the complaint discloses the offence, the Magistrate is empowered to take the cognizance of the offence. At that time, the learned Magistrate is bound to consider whether the complaint is false or frivolous or vexatious. If he has some doubt, he can refer the said complaint for investigation by police under Section 156(3) of the Code for investigation. Further, under Section 200 of the Code the Magistrate taking cognizance of an offence on complaint is required to examine upon oath the complainant and the witnesses present if any, and the substance of such examination is required to be reduced to writing which is further required to be signed by the complainant and the witnesses and also by the Magistrate. No doubt under the proviso some exception is provided for with which we are not concerned. Under Section 202 of the Code the Magistrate is further entitled to postpone issuance of process against the accused and he may either inquire into the case himself or direct the 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. Under Sub-section (2) of Section 202 the Magistrate, if he thinks fit, can take evidence of witnesses on oath. After recording the said evidence or gathering the material as provided under Section 200 or 202, the Magistrate is entitled to dismiss the complaint if in his opinion there is no sufficient ground for proceeding and under Section 203 he is required to give number of reasons for dismissing the complaint. Under Section 204 of the Code if the Magistrate considers that there is sufficient ground for taking cognizance of an offence, then if the case is summons case, he is required to issue summons for the attendance of the accused, and if the case is warrant case, he may issue warrant or summons for causing the accused to be brought or to appear at certain time before, the Magistrate. Looking to the elaborate procedure prescribed under Sections 190, 200, 202, 203 & 204 of the Code, by no stretch of imagination it can be said that the Magistrate is having uncontrolled and unguided powers to take cognizance of the offence. The Magistrate is required to consider the complaint before taking cognizance under Section 190 of the Code. Under Section 200 he is required to verify the said complaint. If there is some doubt, he is entitled to refer the said complaint for investigation by police under Section 156(3) of the Code. He himself is entitled to investigate it under Section 202 of the Code. In this set of circumstances, when elaborate procedure is prescribed, it cannot be said that there is unguided and uncontrolled power to take cognizance of the offence under Section 190 of the Code.

11. Further, it is impossible in such circumstances to think that because the Magistrate has been given more discretion under the Criminal Procedure Code, therefore the said discretion is violative of Article 14 or 21 of the Constitution. While considering the provision of Section 344 of the Code which empowered the Magistrate to remand an accused person to custody the Supreme Court in the case of A. Lakshmanrao v. Judicial Magistrate, Parvatipuram reported in : 1971CriLJ253 held that the discretion was vested in a Court of law which is required to be exercised judicially on well-recognized principles and was, therefore, immune from challenge on the ground of arbitrariness or want of guidelines. If discretion is exercised in arbitrary or unjudicial manner, the remedy by way of resort to the higher Courts is always open to the aggrieved party. The power conferred being judicial, the absence of an express, precise standard for determination of the question would not render the section unconstitutional. The Court held in paragraph 12 as under:

The last submission that there is in any event no guideline for making a remand order and, therefore, the power to remand an accused person under sec 344 is ultra vires being arbitrary and unguided is wholly unacceptable. When a case is postponed or adjourned and the accused is in custody the court has to exercise its judicial discretion whether or not to continue him in custody by making a remand order. The Court is neither bound to make an order of remand nor is it bound to release the accused person. The period of remand is in no case to exceed 15 days at a time. The discretion to make a suitable order is to be exercised judicially keeping in view all the facts and circumstances of the case including the nature of the charge, the gravity of the alleged offence, the area of investigation, the antecedents of the accused and all other relevant factors which may appropriately held the Court in determining whether to keep the accused in custody or to release him on bail. The Court has to ensure the presence of the accused and a just, fair and smooth inquiry and trial of the offence charged. The order of remand is thus subject to judicial discretion and the order is also subject to review by the superior courts in accordance with law. The power conferred being judicial the absence of an express, precise standard for determination of the question would not render the section unconstitutional. Detention pursuant to an order of remand which appropriately falls within the terms of Section 344 is accordingly not open to challenge in habeas corpus

(Emphasis added)

In our view, looking to the fact that elaborate procedure is prescribed for taking cognizance of the offence, it cannot be said that provisions of Section 190 of the Code give arbitrary and unguided discretion to the Magistrate or that the said procedure is unresonable. In any set of circumstances, if the Magistrate has wrongly or illegally taken cognizance of an offence, the accused can always seek judicial remedy by approaching the High Court for quashing the process issued by the Magistrate. When the Magistrate exercises a judicial discretion, in that case the said decision would depend on the facts and circumstance of each particular case. The discretion of judicial officers is not arbitrary and the law provides for revision by superior courts of orders passed by the subordinate courts. In such circumstances there is hardly any ground for apprehending any capricious discrimination by the Magistrate.

12. Further, the constitutionality of Section 190(1)(b) was considered by the Supreme Court in Sub-Divisional Magistrate Delhi v. Ram Kali : [1963]3SCR22 In the said case it was contended that the discretion is given to the Magistrate to take cognizance of an offence and the Magistrate may take cognizance or may not take cognizance. The Court rejected the said contention and held that under Section 190(1)(b) of the Code the Magistrate is bound to take cognizance of any cognizable offence brought to his notice and the words 'may take cognizance' in the context mean 'must take cognizance.' He has no discretion in the matter, otherwise that section will be violative of Article 14 of the Constitution. So the Magistrate is bound to take cognizance of those offences which are brought to his notice and the discretion cannot be said to be an unguided discretion. If an offence is disclosed to him, he is bound to proceed with the matter.

13. The next contention of the learned Advocate that before issuing process or taking cognizance of the offence as no power is given to the Magistrate to hear the accused, therefore also Section 190 is violative of Article 21 of the Code. It is a well-established law that before taking cognizance of the offence the accused has no locus standi to present his say before the Magistrate. After issuance of the process, the Magistrate is bound to hear the say of the accused. Merely because no right is given to the accused to present his case before taking cognizance of the offence, it cannot be said that the procedure is an unreasonable one. If this type of right is given, in our opinion there would not be any end to the litigation or the case to be tried. On the contrary, the said procedure would be in our view more lengthy and unreasonable as the complainant may not get justice for a number of years. For doing justice under the Criminal Procedure Code, justice not only to the accused but justice also to the complainant is required to be done.

Re: Submissions Nos. 2 & 3:

14. Under Section 251 of the Code, in a summons triable case as soon as the accused appears or is brought before a Magistrate, the Magistrate is required to state to the accused the particulars of the offence of which he is accused and also to ask him whether he pleads guilty or has any defence to make. Under Section 252 of the Code if the accused pleads guilty, the Magistrate is required to record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. Section 252, gives further discretion to the Magistrate that even if the accused pleads guilty, yet he may not convict him thereon and may proceed with the trial. Under Section 253 even in absence the accused may plead guilty in petty cases and the Magistrate is empowered to convict the accused in his absence on his plea of guilty and sentence him to pay the fine specified in the summons. Under Section 254 if the Magistrate does not convict the accused under Section 252 or 253, he is required to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. Under Section 255 after recording the necessary evidence, the Magistrate is empowered to acquit or convict the accused. Under Section 257 the Magistrate may permit the complainant to withdraw the complaint and on such withdrawal, acquit the accused against whom the complaint is so withdrawn. Under Section 258 the Magistrate of the First Class is entitled to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of principal witnesses has been recorded, pronounce a judgment of acquittal and in any other case release the accused in any summons case instituted otherwise than upon complaint. Under Section 258 of the Code the Magistrate is empowered to stop the proceedings at any stage and thereby either to discharge the accused or to acquit him. Acquittal of the accused would be in those cases where evidence is recorded. In other cases the accused would be discharged if proceeding is stopped. This power to stop the proceedings is not given in the cases where the complaint is filed before the Magistrate, that means when the Magistrate has taken cognizance of the offence under Section 190(1)(a) of the Code upon the complaint filed before him. The bone of the contention of the learned Advocate for the petitioner was that this section discriminates between the accused of the private complaint and the accused of the offence for which the cognizance is taken under Section 190(1)(b) i.e. upon police report or under Section 190(1)(c) i.e. upon the information received by the Magistrate and, therefore, is violative of Article 14 of the Constitution of India.

15. In our opinion, this contention is also misconceived because under Section 190 (1) (a) when the cognizance of offence is taken by the Magistrate upon the complaint, he must verify the contents of the complaint under Section 200 or under Section 202 and also in certain cases before taking cognizance he follows the procedure prescribed under Section 202 of the Code. In some cases the Magistrate may direct the Police Officer under Section 156 (3) of the Code to investigate the case and after investigation he himself is satisfied with regard to the offence and upon his satisfaction he issues the process i.e. summons or warrant as the case may be. Therefore, once the cognizance is taken on the complaint, there is total application of mind by a Judicial Officer. But in other cases he has to rely upon the information gathered by the investigating officer or the information supplied to him by other persons. Therefore, as there are two distinct sources, it cannot be said that Section 258 is discriminatory and violative of Article 14 of the Constitution of India.

16. Further, the question would be whether the persons who are prosecuted upon a complaint being instituted before a Magistrate can be said to be similarly situated as compared to the accused against whom prosecution is commenced on a police report. The class of cases where the prosecution of the accused is commenced on an institution of complaint is a distinct class and all the persons who face the prosecution of this class are treated similarly under Section 258 of the Code. There is no distinction whatsoever in the same class. The class of cases where the prosecution is commenced on a police report constitutes an altogther different class. The differentia between these two classes is intelligible and has a rational relation to the object which is sought to be achieved, i.e. of doing justice to both the parties i.e. the victim and the accused. As stated earlier, under Section 190 (1) (a) the Magistrate after referring to the complaint or after referring to the other material gathered after investigation under Section 156(3) or under Section 202 after applying a judicial mind determines to issue process, while in the case where the Magistrate takes cognizance of the offence under Section 190(1)(b) or (c), the Magistrate depends upon the information gathered from other sources and, therefore, the accused in both the cases are distinct class and the classification between the two kinds of proceedings is founded on an intelligible differentia.

17. In the case of Shushilaben v. Bhaskar reported in 12 G.L.R. 1041 the Division Bench of this Court while dealing with the contention that Section 417 (3) of the Code was ultra vires Article 14 of the Constitution of India as it gave right to file an appeal against the acquittal order in any case instituted upon the complaint if the High Court grants special leave to appeal from the order of acquittal whereas there is no such right of filing an appeal against the acquittal order to the original informant or the victim at whose instance the prosecution was commenced and therefore there was denial of equal protection of laws to the accused. It was contended that the accused in a cognizable case will have to face the peril of his acquittal being challenged from two sources if the prosecution was commenced by instituting a complaint under Section 190 whereas he will not have to face a similar peril if the prosecution was commenced against him in regard to cognizable offence under a police report. While dealing with this contention the Court held as under:

The answer depends on posing and answering the question as to whether persons who are prosecuted upon a complaint being instituted before a Magistrate, are similarly situated as compared to the accused against whom prosecution is commenced on a police report. Be it realized that the accused in all cases instituted on a complaint face a similar peril from the aforesaid two sources. It is not as if some of the persons in this class of cases are treated differently. The class of cases where the prosecution of the accused is commenced on the institution of a complaint is a distinct class. And all the persons who face a prosecution of this class are treated similarly. There is no discrimination whatsoever. Ordinarily in regard to offences which are made cognizable prosecution is commenced on a police report. Of course in theory a private party has a right to commence prosecution (and occasionally he does so) by instituting a complaint before a Magistrate. By and large, however, in respect of offences which are made cognizable the prosecution is commenced by a police report. But the class of cases where prosecution has not been commenced by a police report and the party himself sets the machinery of the Criminal Court in motion by instituting a complaint before the Magistrate under Section 19u of the Code belongs to a different genre altogether.

The Court has further observed that the reason for classification is also self-evident. The hand which launched the prosecution is different. In one offence the police officer initiates the proceedings, in another a private individual does so, it is founded on intelligible differentia which has a rational relation to the object sought to be achieved. The law operates alike on all persons under like circumstances. In the present case also there is no discrimination between the accused in the case where the prosecution is initiated on the complaint. All the accused of the said class are treated equally under the provisions of Section 258. The Court has further held that the 'complainant' is the person who has exhibited the most active and special interest in the matter and stands in a class by himself. It may also be realised that a complainant who institutes a complaint exposes himself to the risk of being proceeded against for malicious prosecution. It is evident that a person of this category who has played the most active role and who has at some personal risk to himself set in motion the machinery of the Court for vindication of the ends of justice and for bringing to book the culprit falls within a special category.

18. In the case of Hanumantha Rao v. State of Andhra Pradesh : 1957CriLJ1463 dealing with the constitutionality of the provisions of Sections 207 & 207-A of the Code (1898) which provided different procedures at the stage of commitment, the Court overruled the contention that the said two different procedures were violative of Article 14 of the Constitution. Section 207 provided that in every inquiry before a Magistrate where the case is triable exclusively by a Court of Sessions or High Court, the Magistrate was required to follow two different procedures-one under Section 207-A if the proceedings were initiated on a police report and another procedure if the proceedings were initiated otherwise than on a police report. In another proceeding the Magistrate himself was required to hear the complaint and was required to take all evidence in support of the prosecution. In paragraph (II) of the judgment the Court held as under:

Applying the principles laid down by this Court to the case in hand to judge whether or not there has been objectionable discrimination, there could not be the least doubt that the legislature has provided for a clear classification between the two kinds of proceedings at the commitment stage based upon a very relevant consideration, namely, whether or not there has been a previous inquiry by a responsible public servant whose duty it is to discover crime and to bring criminals to speedy justice.

This basis of classification is clearly connected with the underlying principle of administration of justice that an alleged criminal should be placed on his trial as soon after the commission of the crime as circumstances of the case would permit. This classification cannot be said to be unreasonable and not to have any relation to the object of the legislation, namely, a more speedy trial of offences without any avoidable delay.

19. In any case, in our view, whether Section 258 should give a similar right to the accused of the case instituted on complaint would be a question of legislative policy. May be that the Legislature might be aware of the fact that when the Magistrate takes cognizance of the offence upon the complaint, he exercises his judicial mind and may also follow the procedure under Section 156(3) or under Section 202 for holding further inquiry before issuing process while when he takes the cognizance under Section 190(1)(b) or (c), the said prosecution might be to wreak private vengeance even in frivolous matters. It is well-established that the State in exercise of its governmental power has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.

20. Further, we fail to conceive the contention of the petitioner accused as to how he would be at a disadvantageous position if the proceedings are not dropped or stayed but the Magistrate decides the said matter after recording the evidence of the complainant and thereafter permitting the accused to lead evidence in defence if at all he desires. In the case of Hanumantha Rao v. State of Andhra Pradesh (supra) the Supreme Court has further observed in para 8 as under:

But is it always to the advantage of an accused person that there should be an elaborate procedure before such a Magistrate and not a summary one? It is the avowed policy of Legislature and there can be no doubt that it is in the general interest of administration of justice, that crimes should be investigated and criminals brought to justice as expeditiously as circumstances of the case would permit. That must also be in the interest of an accused person himself if he claims not to be guilty of any offence.

(Emphasis added)

Here also if the petitioner really feels that the complaint instituted against him is false and frivolous, then it would be in his interest that the allegations against him should be investigated as expeditiously as possible and it is determined whether the said allegations are true or not. He cannot also claim that the proceedings should be dropped without hearing the contention of the complainant and without recording the evidence of the complainant and/ or his witnesses and/or without permitting him to produce the necessary documentary evidence if he at all desires to produce it. The accused cannot claim as a matter of right that he should be acquitted without trial merely because he produces certain documents on record or that he leads some evidence before the Court without giving any opportunity to the complainant to lead his evidence. On the contrary, the said submission, if adopted would be unreasonable on the face of it because it would result in dismissal of the complaint without affording any opportunity to the complainant for leading the necessary evidence before the Court.

Re : Submission No. 4:

21. With regard to the last contention of the petitioners that the process issued by the Magistrate should be quashed as the complaint does not disclose any offence, he submitted that even if the averments in the complaint are taken as true, yet it does not disclose any offence punishable under Section 447 of the Criminal Procedure Code. He further submitted that there is no allegation about the intention of the accused to commit any offence or to intimidate, insult or annoy any person in possession of the property. As stated above, while narrating the contents of the complaint, we have already stated that in the complaint the complainant had specifically averred that they were in possession of the open space adjoining to the land which was let out to the accused. In the said open space they have placed boiler, pump and chimney. The said area was also hedged by the Company by corrugated iron-sheets. It is the allegation in the complaint that the petitioner-accused has constructed wall of 7 ft. height in the said area, so the complainant cannot have any ingress or egress in the said premises. It is the allegation in the complaint that the accused are wrongfully restraining them from entering the premises over which boiler, pump and chimney are kept. In this set of circumstances, we cannot hold that the complaint does not disclose any offence under Section 447 and/or Section 341 of the Indian Penal Code. Further, looking to the averments in the complaint at this stage it cannot be said that the dispute between the parties is only of civil nature. If the complainant proves that the accused has committed trespass and that he has wrongly restrained the complainant in enjoying the other premises which was in his occupation and use, then in that set of circumstances even though the civil remedy for the complainant may be open, yet the complainant is entitled to take recourse to the provisions of the Penal Code.

22. In the result, both the Miscellaneous Criminal Applications filed by the petitioner are dismissed.

The learned Advocate for the petitioner submitted that for two months the operation of the impugned order may be stayed. Looking to the fact that the complaint is filed on 15-5-82 and looking to the fact that the petitioner has approached this Court twice by filing Miscellaneous Applications and has sufficiently prolonged the proceedings, we do not think that this would be a fit case for granting any further stay order. On the contrary, it would be in the interest of justice that the learned Magistrate decides the matter as expeditiously as possible.


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