AYYUB AHMAD Vs. STATE OF M P

JUDGEMENT

(1.) BY this revision, the petitioner has challenged the order dated 22/12/08 passed by the Additional Chief Judicial Magistrate, Indore in case no 0/08 directing the police to investigate the complainant and register the offence agaisnt the present petitioner under section 420 of the IPC. '

(2.) COUNSEL for the petitioner has stated that the Learned Magistrate had erred in issuing process and the order may be recalled primarily because the complaint as such pertains to an agreement for purchase of land and if at all the complainant was aggrieved, he could take recourse to the Civil Court and since primarily no criminal offence was made out, hence ,the police at Bhawarkuwan Police Station, the Investigating Agency of the first instant had refused to take cognizance of the same despite which the complainant went ahead and filed criminal complaint before the Learned Magistrate along. with the petitioner. He also filed application under section 156 (3) of the Cr. P. C. Counsel further urged that no opportunity of hearing was given to the petitioner before passing the order for investigation under section 156 (3) by the Learned Magistrate and the Apex Court had time and again cautioned against the abuse of power when the discretionary power is misused without application of mind relying on Maksud Saiyed Vs. State of Gujarat and others [2008 (2) SCC (Cri) 692]. Counsel submitted that the Apex Court had held thus :

(3.) COUNSEL submitted that in the said case, when the accused was a company, the liability of the Directors was in question. The Apex Court found that all the charges levelled against the company were untenable and the Magistrate had failed to re-examine whether the complaint made Directors personally liable. Stating that the summoning of the accused in criminal case being a serious matter, the application of the mind by Magistrate was essential and the exercise of jurisdiction is to be made with abundant caution. Counsel further emphasizes that the Magistrate is required to apply his mind whether to take action under section 156 (3) or section 200 of the Cr. P. C. Criminal law cannot be set into motion as a matter of course. The Magistrate has to carefully scrutinize the evidence brought on record and even himself put question to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by or any of the accused.