RAMESH CHANDRA Vs. ARA TRADERS

JUDGEMENT

(1.) IN this petition, the petitioner prays that the criminal complaint filed by respondent u/s 420 & 406 RPC against the petitioner pending on the files of learned Judicial Magistrate (Small Causes) Srinagar and consequent proceedings taken thereupon be quashed. Learned counsel for the petitioner submits that reading of the complaint shows that no offence has been committed by the petitioner. It is further submitted that the dispute raised in the complaint is purely a civil dispute and it is share abuse of process of court to allow the complaint to remain on the files of the Id. magistrate and to allow the proceedings to continue. Learned counsel for the respondent has fairly conceded that all the orders right from the date 29th September 2007 including the orders vide which warrants have been issued to secure the presence of the petitioner before the court are illegal and tantamount to abuse process of court, as no order has been passed by the learned magistrate vide which process was issued against petitioner.

(2.) HEARD learned counsel for the parties and considered the matter.

(3.) UNDER Section 204 Cr.P.C., issuance of process against the accused person in a complaint is not an empty formality but it is a serious matter. By issuance of process against a person in a complaint restraint is placed on his liberty and in essence his liberty is abridged when he is asked to furnish bail bond and surety bond and has to remain available before the court in the criminal proceedings. The learned magistrate has to apply his judicial mind to the facts of the case and then record satisfaction as to whether process is required to be issued in the attendant facts and circumstances of the case. In case learned magistrate is satisfied of the allegation made in the complaint together with the preliminary statements of complainant and of his witness that complainant does disclose prima facie commission of offence by accused, then he is duty bound to issue the process in the complaint and not otherwise.