MANMATH MANIDHARPRASAD VYAS Vs. CHUNILAL MAGANLAL PATEL

JUDGEMENT

(1.) Petitioner is the original accused in Criminal Case No. 731 of 1971 on the file of the City Magistrate 5 the our Ahmedabad Opponent No. 1 is the original complainant. Opponent No. 1 had filed Criminal Case No. 2 of 1971 in the Court of the City Magistrate 9 Court Ahmedabad on 10th March 1971. The learned City Magistrate recorded the statement of the complainant on oath and passed an order that process for an offence under sec. 420 of the Indian Penal Code should be issued. The case for the reasons to be presently mentioned came to be transferred to the 8th Court. When the case was pending before the 8 Court complainant gave an application on 4th May 1971 requesting the learned Magistrate that the complainant had alleged certain facts in the complaint which if prima facie accepted would indicate that offence under sec. 467 read with sec. 471 of the Indian Penal Code is committed and as this offence is exclusively triable by a Court of Sessions the Court should proceed according to the procedure prescribed for preliminary inquiry leading to the committal of the accused to the Court of Sessions. This application appears to have been contested by one Shri D. P. Oza on behalf of the present petitioner. The learned Magistrate dismissed the application on 10th May 1971 observing that neither the learned advocate of the complainant nor the complainant were present in she court and that as the process was issued by an order of the predecessor of the learned Magistrate it was open to the complainant to approach the higher court if he was dissatisfied with that order. After dismissing the application learned Magistrate set down the case for hearing on 12th May 1971 on which date when the case was called out it appears that the complainant and his advocate both were absent and therefore the learned Magistrate in exercise of the powers conferred upon him under sec. 259 of the Criminal Procedure Code dismissed the complaint and discharged the accused.

(2.) It appears that after discharge of the accused in the aforementioned complaint the complainant filed another complaint again in the 9th Court on 13th May 1971. This complaint came to be transferred to the 5th Court in the circumstances to be presently mentioned. The learned Magistrate presiding over the 5th Court recorded the statement of the complainant and directed that a process be issued for offences under secs. 406 467 and 471 of the Indian Penal Code. The petitioner-accused has moved this court under sec. 561A of the Criminal Procedure Code for quashing the second complaint.

(3.) Mr. N. H. Bhatt learned advocate for the petitioner urged that as the complainant was utterly dissatisfied by the order of the learned Magistrate 8th Court issuing process for an offence under sec. 420 only he deliberately resorted to a subterfuge to get the complaint dismissed by remaining absent and then by instituting the second complaint in the manner as would avoid the 1st Court which had passed the initial order of issuing process under sec. 420 and obtained an order which he very keenly desired. It was urged that if it appears reasonably correct that the complainant deliberately got his complaint dismissed and instituted a fresh complaint on the same allegations with an ulterior end in view the court must interfere and quash the complaint on the sole ground that it is an abuse of the process of law. I must say that the allegations are quite serious and I must also confess that a part of it appears even to be true. Question is:- whether part which is true is sufficient enough to exercise powers under sec. 561A of the Criminal Procedure Code so as to quash the complaint.