MAYUR CHANDULAL CONTRACTOR Vs. HERCULES D'SOUZA

JUDGEMENT

(1.) THIS matter arises out of the issue of process by the Additional Chief Metropolitan Magistrate, Borivali, Bombay in case no. 58/S/91 filed by the first respondent against the petitioners. It is alleged in the complaint that the petitioners have committed offences under sections 386, 451, 352, 419, 506 (ii) read with sec. 34 of the IPC. For the purpose of the case I do not think it is necessary to go into the every details contained in the complaint. Along with the complaint the names of 10 witnesses were shown and about 8 items of documents were also produced. The complaint was filed on 5-2-1990 and it was posted for verification on 6-3-1990. It appears that on 6-3-1990 verification was not done. On 15-5-1990 verification was done. But it was stopped abruptly, and it was adjourned to 5-6-1990 for want of time. In the verification he stated that he made a complaint in Borivli police station as per Exh. D. a zerox copy of which is produced. On 2-2-1991 i.e. after an year the Magistrate made an endorsement that verification statement was perused and directed the complainant to bring evidence. On 2-4-1991 the advocate for the complaint does not press the offences under sec. 386, 352, 419 IPC. But he pressed for process under sec. 451, 506(i) read with 34 of IPC. On the same day the Magistrate ordered thus:- "in view of the subsequent endorsement of the complainant, issue process under sec. 451, 506(i) read with 34 of IPC against the accused."

(2.) SHRI Tirodkar the learned counsel for the petitioner submits that a very strange procedure has been adopted by the Magistrate which is in violation of the provisions of Sec. 200, 202, 203 and 204 of IPC. He submits that under these provisions a Magistrate is got only with three options. One is that when the Magistrate is satisfied with the allegation and materials and on examination of witness present on the date of filing of the complainant, he can issue process; Secondly, if he is not satisfied with the veracity of the complaint, he can dismiss the complaint, straightaway. Thirdly, on the basis of the materials available before the Magistrate neither he dismiss or issue process, he can direct an enquiry under sec. 156 of the Cr.P.C. or 202 of Cr.P.C.

(3.) IT has to be mentioned that about one year has taken by the Magistrate atleast to issue process in this case. A reading of sec. 200 does not permit the Magistrate to wait for such a long time on a complaint filed by the complainant under sec. 200 IPC. It should bear in mind that sec. 200 Cr.P.C. is an alternative protection for a citizen who suffers, against the reluctant attitude of the police either to entertain his complaint or a police officer may be baised against the accused. In that circumstances, a complaint filed under sec. 200 should be acted with a sense of urgency. Here, an year has been taken. The complaint was filed on 5-2-90 and verification has been taken for the reasons best known to the Magistrate only on 6-3-1990 and the actual verification process started on 5-6-1990, and again evidence was called for on 2-2-1991. Ultimately, the endorsement was made by the advocate on 2-4-1991 and the order was passed for issuing summons against the petitioner on 2-4-1991. The time spent by the Magistrate is not on the ordinary course of business of the court. Such delay is not admissible in the light of the provisions of sec. 200, 202, 203, and 204 of Cr.P.C. The Magistrate can not split offences according to the wishes of the complainant as is done in this case. The procedure adopted by the Magistrate is clearly an instance of mis-carriage of justice. In view of this, I have to uphold the contention of the learned counsel for the petitioner. In the result the writ petition is allowed. Rule is made absolute in terms of prayer clause (b). No order as to costs. Prayer clause (b) :- That the order of the issue of the process under sec. 451, 506 (i) read with section 34 of the Indian Penal Code issued by the learned Metropolitan Magistrate, 26th Court, Borivli, Bombay in Court Case No. 58/S/1991 be quashed and set aside, and the said complaint be quashed.