RAJMOGALI ASHAYYA ARKAL Vs. GOVIND HANUMANTU NANDAL

JUDGEMENT

(1.) THIS is a writ petition challenging the issue of process in Criminal Case No. STC 726/1994 on the file of the Judicial Magistrate, First Class Court No. 3, Solapur. Heard the learned Counsel for the petitioner and the learned P.P. for Rule 1. None appeared for Rule 1.

(2.) FEW facts which are necessary for the disposal of this case are as follows: Respondent No. 1 filed a private complaint in the court below against the petitioners alleging offence under Section 442, 448, 349 read with Section 34 of the Indian Penal Code. The learned Magistrate recorded sworn statement of the complainant and referred the complaint to the police for investigation under Section 202 of the Code of Criminal Procedure. The police took up the investigation and made inquiry and submitted a report stating that the dispute is of a civil nature. However, the learned Magistrate did not accept the police report and issued process against the accused for an offence under Section 442 of the IPC. Being aggrieved by the issue of process, petitioners challenged the same in Criminal Writ Petition being Criminal Writ Petition No. 406 of 1995. When the matter came up for admission before this Court on 13.4.1995, the petition was permitted to be withdrawn in view of the decision of the Apex Court in Mathew 's case reported in : 1992CriLJ3779 with liberty to the accused to approach the Magistrate for dropping the proceedings under Section 258 of the Cr.P.C. When the matter went before the learned Magistrate the accused made an application for dropping the proceedings. By the impugned order dated 31.10.1995, the learned Magistrate rejected the application. Being aggrieved by that order the accused have preferred this writ petition.

(3.) THE learned Magistrate has observed in the impugned order that the stage of hearing before charge has not yet arisen and therefore, the application is premature and rejected it. In my view, the order is wholly erroneous. The question of framing charge or recording evidence before the charge does not arise in summons case. The learned Magistrate has issued process under Section 442 of the IPC which itself is incorrect. Section 442 of the IPC is not a punishing Section at all. The summons should have been issued under Section 498 of the IPC which is a summons case. In a summons case or summons procedure, the question of framing charge or recording evidence before the charge does not arise at all. That is why the Apex Court has observed in Mathew's case that even in summons case, the accused can file an application for recalling the process or dropping the proceedings on the ground that no offence is made out. Inspite of the observations of the Apex Court, the learned Magistrate has not considered the merits of the case but rejects the application only on the ground that it is premature. Hence, on this ground, the impugned order is not sustainable and liable to be set aside. Even if it is taken for granted that the process was issued under Section 342 of the IPC even then summons procedure is applicable and the question of framing charge or recording of evidence before the charge docs not arise.