1998 Supreme(Bom) 786
IN THE HIGH COURT OF BOMBAY
T.K. Chandra Shekhara Das, J.
Shri Mayur Chandulal Contractor, Bombay others ..... Petitioners.
Versus
Mr. Hercules D’Souza and another ..... Respondents.
Criminal Writ Petition No. 1125 of 1991, decided on 12-10-1998.
Advocates appeared :
G. B. Tirodkar, for the petitioners.
Ms. Usha Kejariwal, A.P.P., for the State.
Headnote:Sections 200, 202, 203 and 204 -Complaint alleging offences under Sections 386, 451, 352, 419, 506 read with 34, Indian Penal Code-While complaint was filed on 5.2.1990, it was posted for verification on 5.6.1990 - Ultimately, on the endorsement made by complainant on 2.4.1991, that the complainant did not press offences under Sections 386, 352 and 419, Indian Penal Code pressed for process under Sections 451, 506 read with Section 34, Magistrate passed an order for issuing process under Sections 451, 506 read with Section 34, Indian Penal Code, against accused thereby splitting offences-Procedure adopted by Magistrate clearly an instance of miscarriage of justice-Order issuing process quashed.-A complaint was filed alleging offences under Sections 386,451,352,419 and 506 read with 34, Indian Penal Code. Along with the complaint names of 10 witnesses were shown and about 8 items of documents were also produced. The complaint was filed on 5.2.1990 and it was posted for verification on 6.3.1990. However on 6.3.1990 verification was not done but the same done on 15.5.1990. It was however stopped abruptly, and it was adjourned to 5.6.1990 for want of time. In the verification it was stated that the complaint was made in Borovli police station as per Exh. D, a zerox copy of which was produced. On 2.2.1991, i.e. after a year the Magistrate made on endorsement that verification statement was perused and directed the complainant to bring evidence. On 2.4.1991 the advocate for the complainant made an endorsement to the effect that the complainant did not press the offences under Sections 386,352 and 419, Indian Penal Code, but only under Sections 451, 506 read with 34 of Indian Penal Code. On the same day the Magistrate ordered issue of process under Sections 451, 506 read with 34 of Indian Penal Code against the accused. On challenge in writ petition by the accused. Held, that a reading of Section 200 does not permit the Magistrate to wait for such a long time on a complaint filed by the complainant under Section 200, Criminal Procedure Code. Section 200, Criminal Procedure Code is an alternative protection for a citizen who suffers, against the reluctant attitude of the police ether to entertain his complaint or a police officer may be biased against the accused. In that circumstances, a complaint filed under Section 200 should be acted with a sense of urgency. Here, a year had been taken. The time spent by the Magistrate was not in the ordinary course of business of the Court. Such delay is not admissible in the light of the provisions of Sections 200, 202, 203 and 204 of Code of Criminal Procedure.
JUDGMENT - T.K. CHANDRA SHEKHARA DAS, J.:---This matter arises out of the issue of process by the Additional Chief Metropolitan Magistrate, Borivli, Bombay in Case No. 58/S/91 filed by the first respondent against the petitioners. It is alleged in the complaint that the petitioners have committed offences under sections 386, 451, 352, 419, 506(II) read with section 34 of the I.P.C. For the purpose of the case I do not think it is necessary to go into the every details contained in the complaint. Along with the complaint the names of 10 witnesses were shown and about 8 items of documents were also produced. The complaint was filed on 5-2-1990 and it was posted for verification on 6-3-1990. It appears that on 6-3-1990 verification was not done. On 15-5-1990 verification was done. But it was stopped abruptly, and it was adjourned to 5-6-1990 for want of time. In the verification he stated that he made a complaint in Borivli Police Station as per Exh. D a zerox copy of which is produced. On 2-2-1991 i.e. after an year the Magistrate made an endorsement that verification statement was perused and directed the complainant to bring evidence. On 2-4-1991 the Advocate for the complainant made an endorsement to the effect that the complaint does not press the offences under section 386, 352, 419 I.P.C. But he pressed for process under sections 451, 506(1) read with 34 of I.P.C. On the same day the Magistrate ordered thus:- In view of the subsequent endorsement of the complainant, issue process under sections 451, 506(1) read with 34 of I.P.C. against the accused.
2. Shri Tirodkar the learned Counsel for the petitioner submits that a very strange procedure has been adopted by the Magistrate which is in violation of the provisions of sections 200, 202, 203 and 204 of I.P.C. He submits that under these provisions a Magistrate is got only with three options.
One is that when the Magistrate is satisfied with the allegation and materials and on examination of witness present on the date of filing of the complaint, he can issue process. Secondly, if he is not satisfied with the veracity of the complaint, he can dismiss the complaint, straightway. Thirdly, on the basis of the materials available before the Magistrate neither he dismiss or issue process, he can direct an enquiry under section 156 of the Cr.P.C. or 202 of Cr.P.C.
3. According to Shri Tirodkar, Magistrate however, cannot adopt the methods which he has adopted in this case. The Magistrate cannot collect the evidence by calling upon the parties when allegation contained in the complaint does not satisfy him, nor the complainant cannot bargain for that. The learned Counsel submits that if the Magistrate is not satisfied with the offence which originally alleged in the complaint, the Magistrate can issue process at least, for some minor offence, if sufficient materials are there. I find considerable force in the contention of the learned Counsel that a very strange procedure is seem to have been adopted by the Magistrate in this case.
4. It has to be mentioned that about one year has taken by the Magistrate atleast to issue process in this case. A reading of section 200 does not permit the Magistrate to wait for such a long time on a complaint filed by the complainant under section 200 I.P.C. It should bear in mind that section 200 Cr.P.C. is an alternative protection for a citizen who suffers, against the reluctant attitude of the police either to entertain his complaint or a Police Officer may be baised against the accused. In that circumstances, a complaint filed under section 200 should be acted with a sense of urgency. Here, an year has been taken. The complaint was filed on 5-2-90 and verification has been taken for the reasons best known to the Magistrate only on 6-3-1990 and the actual verification process started on 5-6-1990 and again evidence was called for on 2-2-1991. Ultimately, the endorsement was made by the Advocate on 2-4-1991 and the Order was passed for issuing summons
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