HEMANT P VISSANJI Vs. MULSHANKAR SHIVRAM RAWAL

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India read with section 482 of the Criminal Procedure Code, 1973, the petitioners have impugned the order dated 24-11-1986 issuing process against the petitioners in Criminal Case No. 1004 of 1986.

(2.) THE first respondent filed a complaint before the Judicial Magistrate, First Class, Khalapur, in which he alleged that he was the owner of certain property in Sarasan village, Taluka Kholapur and the property stood in his name in the records of the Grampanchayat concerned. The complainant alleged that accused Nos. 1 to 3 (petitioner Nos. 1 to 3 herein), who were the Managing Directors and Senior Officers of Wallace Flour Mills Ltd. , had conspired and committed trespass on his property, demolished his house by razing it to the ground and carried away the debris leaving no trace. Since the complainant stayed at Shilphata, the accused took the advantage of his absence and committed the aforesaid offences. The complaint alleged that this was done by the accused as they were enraged by the refusal of the complainant to sell the property to them. In the complaint the complainant stated that he had made a complaint with regard to the offence to the Khopoli Police Station, but the police had not taken any action in the matter. He also stated that he had filed a complaint against Mahadu Gopal Patil and others in the Court with regard to the same offence and that the said complaint was pending. He stated that he did not know the name of the present accused at that time and he came to know about them after full inquiry and that he learnt that the offence has been committed by a conspiracy on the part of the accused and with their consent. The complainant, therefore, prayed for appropriate action being taken against the accused in accordance with law. On this complaint, the learned Magistrate issued process against the accused (present respondents 1 to 3) under sections 447, 379 and 427 of the Indian Penal Code. It is this order of taking cognizance and issuing process which is challenged by this petition.

(3.) MR. Vashi, learned Counsel appearing for the petitioner, contended that it is a well settled principle in criminal law that cognizance can be taken only of an offence and not of the particulars of the offence including the offenders. He invited my attention to a judgment of the Division Bench of the Calcutta High Court in (Saifar and others v. State of West Bengal) A. I. R. 1962 Calcutta 133. The Calcutta High Court, while considering the provisions of sections 190 (1) (b) and 251-A of the Code of Criminal Procedure, held that a Magistrate takes cognizance of the offence and not merely of the particulars of the persons named in the charge-sheet and, therefore, the Magistrate can issue process against other persons, who appear to him, on the basis of the police report and other material placed before him, to be concerned in the commission of the offence in the particular case, after considering the totality of the material on record.