MD. IMRAN ALI Vs. SHAREEN

JUDGEMENT

(1.) Present revisional application has been directed for quashing of the proceeding being Complaint case no. C 9760 of 2011 pending before the learned Magistrate, 3rd Court, Alipore, South 24-Parganas under Sec. 498A/323/500/34 of the Indian Penal Code. Opposite party No.1 remains unrepresented.

(2.) Mr. Sabir Ahmed, learned advocate for the petitioner submits that it is well-settled principle of law that summoning of the accused in a criminal case is a serious matter and the criminal law cannot be set in motion as a matter of course. Furthermore, the order of the learned Magistrate summoning the accused must reflect that he has applied his mind to the fact of the case and the law applicable thereto. He has to examine the nature of allegation made in the complaint and the evidence both oral and documentary in respect thereof before initiation of a criminal proceeding. In the present context, aforesaid complaint case no. C-9760 of 2011 was lodged by opposite party no. 2 on the basis of a complaint with a prayer to issue summon under sec. 500/504 Indian Penal Code on 19/9/2011. However, it appears vide order no. 1 dtd. 19/9/2011, Magistrate observed that a petition of complaint under Sec. 138 of the Negotiable Instruments Act, 1881 is filed and on perusal of the complaint, the learned Magistrate took cognizance of the same and the case was transferred to the court of learned Judicial Magistrate, 3rd Court, Alipore, South 24-Parganas for disposal in accordance with law. Thereafter, on transfer, the court of learned Judicial Magistrate, 3rd Court, Alipore, South 24-Parganas after taking initial deposition came to a conclusion that there are sufficient materials to proceed against the accused person under Sec. 498A/323/500/34 of the Indian Penal Code and issued process against the petitioner under sec. 204 of the Cr.P.C.

(3.) Mr. Ahmed further submits that from the first recording of the order indicates that the complaint was filed under Sec. 138 of the Negotiable Instruments Act, 1881 and when it was transferred to the court of learned Chief Judicial Magistrate, 3rd Court, Alipore, South 24-Parganas, the process was issued against the accused going beyond the allegations of Sec. which comprised of Sec. 500/504 of the Indian Penal Code. Surprisingly, the order indicates that in a proceedings under Sec. 138 of the Negotiable Instruments Act, 1881, process issued against petitioner/accused under Sec. 498A/323/500/34 of the Indian Penal Code though complaint prayed for issuance of process against petitioner/accused before the court under Sec. 500/504 of the Indian Penal Code. He further submits that the opposite party no.1 already started police case under sec. 498A IPC on the basis self same allegation and continuance of second proceeding on the basis of self same cause of action is not permissible in law and issuance of said process under sec. 204 of the code of criminal procedure has seriously prejudiced petitioner. In this context Md. Ahmed relied upon two judgments Babubhai vs. State of Gujarat and others reported in (2010) 12 SCC 254 and T.T. Antony vs. State of Kerala and others reported in (2001) SCC (Cri) 1048.