CHHATARPAL SINGH Vs. DHANNA SINGH

JUDGEMENT

(1.) IN this case on complaint filed by the complainant the trial Court was pleased to issue process under sections 326, 324, 323, 452 and 382, all read with section 149, I.P.C. against the issuance of process. The petitioner has preferred this petition under section 482, Cr. P.C. It is now submitted that version given in the first information report in respect of the incident is materially discrepant from the version given in the complaint before the court. Obviously it will have to be ascertained from the material available before the Court as to whether these were two different incidents or whether it pertained to the version of the same incident on two different occasions.

(2.) THE counsel for the petitioner highlighted these discrepancies to base his argument that in view of this marked discrepancy the order summoning the accused before the Court should be quashed. It was further submitted that the accused would not have any opportunity before Magistrate to put forth his case for the purpose of discharge. I am unable to appreciate that argument. In this case, warrant procedure applicable to the complainant filed by person would be applicable and provisions of section 244, Cr.P.C to section 250, Cr. P.C. would be attracted. Section 244 Cr.P.C. empowers the Magistrate to proceed to hear the prosecution and take all evidence as may be produced in support of the prosecution. The accused is supposed to be present at that time. Section 245, Cr. P.C. then empowers the court to sort out the evidence and consider whether the accused deserves discharge. In that case he should record the reasons and discharge the accused. Subsequent sections then provide regarding the procedure to be adopted in the event the accused were not discharged. In this case, it appears that the Magistrate made up his mind to proceed with the matter; he recorded certain statements by way of preliminary enquiry as per section 202, Cr.P.C; and only thereafter he made up his mind to issue process against the accused. The issuance of process in such cases is based upon formation of opinion by the Magistrate that there was sufficient ground for proceeding further (section 204, Cr.P.C.). After having done that exercise, the Magistrate has issued the summonses. Now, the next course would be to proceed under Section 244 Cr.P.C. onwards, as stated above. The discrepancies that may be found in the prosecution evidence can be highlighted by the accused in the course of hearing of the matter before the Magistrate. At this stage therefore it would not be possible, to exercise the powers under section 482 , Cr.P.C. in order to undertake the job as to the effect of the discrepancies if any. The discrepancies and contradictions have to confront to the prosecution witnesses and will have to be brought on record by way of evidence before these could be considered. Since that exercise was yet to be performed, presently it would not be possible to weigh such discrepancies. I, therefore, direct the Magistrate to follow the procedure, as mentioned above.

(3.) AT this stage, counsel for the petitioner submitted that in the set of circumstances, petitioner may be allowed to appear before the Magistrate by his pleader. That permission is granted to him as per section 205, Cr.P.C. and the accused shall attend the Court personally or such date as would be ordered by the Magistrate in his discretion. With these observations, this petition stands disposed of. Order accordingly.