H S GOINDI Vs. STATE & ANR

JUDGEMENT

(1.) Having held preliminary inquiry into the criminal complaint case (CC no. 67/1/2014), the Metropolitan Magistrate by order dated 01.10.2014 issued process under Section 204 of the Code of Criminal Procedure, 1973 (Cr.P.C.) against the petitioner and one another, for the offence under Section 379 read with Section 34 of Indian Penal Code, 1860 (IPC). The petition at hand was preferred to assail the said order invoking the inherent power and jurisdiction of this Court under Section 482 Cr.P.C. The submissions of the petitioner are that the proceedings before the Metropolitan Magistrate are an abuse of process of law, the requisite law for the purposes of such action not having been followed, the allegations made against him being false and motivated. The petition has been resisted by the second respondent at whose instance the criminal action was initiated, he hereinafter being referred to as "the complainant".

(2.) The trial court record has been called for and perused. It reveals that on 19.06.2014, the complainant had approached the Metropolitan Magistrate with an application under Section 156 (3) Cr.P.C., he having earlier filed an application on 19.05.2014 with the station house officer of Safdarjung Enclave, where the property in respect of which the offence allegedly took place is situate. The complainant would allege offences punishable under Sections 382/392/395/448/452/34 IPC having been committed on 17.05.2014 by the petitioner, and certain others including his driver Devender, who too has been summoned, by the impugned order. It appears the complainant had taken the said premises to set up the office for his professional work. It is his case that the premises was in a dilapidated condition and he had arranged for some renovation work through one person named Sanjeev Mukhiya. It is alleged that the petitioner, assisted by the co-accused (Devender) and certain others, had come to the scene and had removed the fixed window frames with dishonest intention had left behind two holes in the masonry wall.

(3.) The trial court record would show that the prayer of the complainant for direction to the police for investigation under Section 156 (3) Cr.P.C. was declined by order dated 04.08.2014. By the same order, the Metropolitan Magistrate, however, proceeded to further record that she was taking cognizance under Section 190 Cr.P.C. She adjourned the matter for pre-summoning inquiry under Section 200 Cr.P.C. The record further shows that during the preliminary inquiry, the complainant examined himself (as CW-1) and also the aforementioned Sanjeev Mukhiya (as CW-2). It is the statements of the said witnesses on basis of which the impugned order of summoning was passed.