HAMCHANDRA Vs. RAMRAO

JUDGEMENT

(1.) THE process issued by the Judicial Magistrate, First Class, 8th Court, Nagpur on 3-8-1989 in Criminal Case No. 89 of 1988 is sought to be quashed.

(2.) THE petitioners are the father and son Respondent no. 1 is their neighbour. On or about 5-6- 1988 the respondent no. 1 started work of erecting a fencing wall. The petitioners approached there and asked him not to continue with the construction, because the land belonged to them. There was altercation between them and it is also alleged that the petitioners 1 and 2 assaulted the respondent no. 1. The respondent no. 1, therefore, reported the matter to the Police on 9-6-1988. As the Police did not take the step in the matter, he filed a complaint case before the Judicial Magistrate, First Class, 8th Court, Nagpur on 14-6-1988. The learned Magistrate recorded the verification, but did not issue the process. On the other hand he wanted the Police to enquire into the matter under Section 202 Criminal Procedure Code. This direction was given vide the order- sheet dated 13-2-1989. However, before the Police Report could be received, the Magistrate on 3- 8-1989 issued a process under Sections 447, 506-Il read with Section 34 of the Indian Penal Code. It is this action which has been challenged in the present petition.

(3.) THE petitioners appeared before the Court in pursuance of this, process as accused. They have now challenge the issuance of the process; Once the Magistrate directed the enquiry to the Police under Section 202 Criminal Procedure Code, he could not issue the process Without the receipt of the report. Another contention was that, the plaintiff has suppressed the material facts and this amounts to abusing the process of law. Thirdly, it was contended that the matter was of civil nature and lastly, it was contended that in no case can an offence punishable under Section 447 of the Penal Code be made out justifying the issuance of the process. Mr. Naidu the learned Advocate for the petitioners strenuously contended before me that the offence is alleged to have occurred on 5-6-1988. According to Mr. Naidu, it is the accused who approached the Police immediately on the same evening, but the: Police on enquiry refused 19 take cognizance because according to them, it was a civil dispute. Accordingly the petitioners were directed to approach Civil Court. His clients then filed a Civil Suit and applied for temporary injunction on 9-6-1988 and the ex-parte order was passed on the very day. This was Civil Suit No. 1213 of 1988. He also urged before me that the notice of the Civil Suit and also of the injunction order was server on the complainant (present respondent 1) on 11-6-1988. Thus according to him, the complainant was aware that there was a dispute regarding the ownership of the land where the fencing wall was sought to be raised. Inspite of filing of the civil suit and the passing of the ex-parte injunction order, he rushed to the Criminal Court. The Criminal Court also recorded verification long after the filing of the complaint The Criminal Court does not appear to have been satisfied with the submissions made in the complaint and therefore, it directed enquiry under Section 202 of Criminal Procedure Code. What Mr. Naidu strenuously urged before me was that, prima facie the Magistrate was not satisfied with the averments made in the complaint and the verification and he, therefore, sought some additional material coming out from the enquiry under Section 202. The factual aspect has not been controverted by Mr. Shukla. It is also not disputed that the Police report was not received by the Court till 3-8-1989 when the Magistrate took the cognizance. What Mr. Naidu urged before me was prima facie that when Magistrate was not satisfied with the material which could have justified the- issuance of the process immediately. He wanted some more material and for that purpose, an enquiry under Section 202 was directed: There was no change in the circumstances till 3-8-1989 and thus, the issuance of the process without any further material coming on record, is the evidence of non-application of mind by the Magistrate. There appears to be considerable force in what Mr. Naidu says. Mr. Shukla did urge before me that it was not obligatory on the part of the Magistrate to wait for the Police Report particularly when more than six months had lapsed. However, the record does not show that the learned Magistrate considered the delay in getting the Police Report. Thus, once the Magistrate insists on some additional material for his subjective satisfaction, it is necessary for him to withhold the issuance of the process till additional material augmenting the subjective satisfaction is received. The principle laid down in 1988 Mh. L. J. 765 does not in any way help the respondent because the circumstances prevailing in this case are quite different. On the other hand the ratio enunciated in A. I. R. 1981 Supreme Court, page 11512 and A. I. R. 1965 Supreme Court page 1541 does help the petitioners in this case. It can, therefore be reasonably said that the issuance of the process without any additional material on record was not proper.