VISHNUPRASAD DAHYABHAI BRAHMBHATT Vs. MANGALBHAI MOTIBHAI VALAND

JUDGEMENT

(1.) . The petitioner Vishnuprasad Dahyabhai Brahmbatt submits that respondent No. 1 has filed a complaint under sec. 500 of the Indian Penal Code against him in the Court of the learned J. M. F. C; Kheda which complaint is Annexure `A being an uncertified copy of it. Prior to that the petitioner had filed a complaint against respondent No. 1 dated 6-6-1979 before Police Sub Inspector Matar. It is the grievance of the present petitioner that by filing a complaint as per Annexure B in the Matar Police Station against respondent No. 1 he did not commit any offence under sec. 500 of the Indian Penal Code as prima facie the accusation made by him against the respondent No. 1 before the P. S. I. who is wielding a lawful authority over respondent No. 1 is covered under eighth Exception to sec. 499 of the Indian Penal Code. The petitinner submits that there was not even a prima facts case of defamation against him and the learned J. M. F. C who has issued a process based on a complaint of defamation filed by respondent No. 1 has not applied his mind as to whether there is any basis for such a complaint and that in so acting he his acted without jurisdiction. In the submission of the petitioner issuing of the process by the learned J. M. F. C. Kheda against the present petitioner prima facie amounts to an abuse of the process of Court and in order to quash that order he has approached the High Court by the present application.

(2.) . Mr. Barot referred me to the relevant provisions of the Criminal Procedure Code namely sec. 200 sec. 201 sub-sec. (1) and sec. 204 of the Criminal Procedure Code and while reading these three sections he emphasised that it was the intention of the Legislature in framing these sections that before a Magistrate decided to issue a process on the receipt of a complaint he must satisfy himself on the basis of the record produced before him by the complainant that there were sufficient grounds for proceeding in the matter. Mr. Barot submitted a Magistrate issuing a process on the receipt of a complaint must realise that he is doing so ex parte against the alleged accused. He must also realise that Art. 21 of the Constitution is involved when he issues a process inasmuch as a process is going to interfere with the personal liberty of the accused. It must also be realised by the Magistrate that issuance of the process involves the alleged accused in mental torture harassment inconvenience loss of time expenses and facing a litigation many a time a protracted one. The Magistrate therefore cannot and should not issue a process unless he has satisfied himself on objective test that there is a prima facie case against the accused. The issuance of the process is not something which can be had on mere asking. Mr. Barot submitted that in the instant case the learned Magistrate had issued a process on the petitioner on the basis of a complaint which had no merit at all and that there was no justification whatever in issuing the same. In support of his argument Mr. Barot cited a ruling in the case of SMT. NAGAWWA V. VEERANNA SHIVALINGAPPA KONJALGI AND OTHERS REPORTED IN 1976 CRIMINAL LAW JOURNAL 1533 1976 SUPREME COURT 1947 The following observations are very germane to the question which is under consideration and it may be cited fully:-

(3.) . Those illustrative circumstances are given as under :-