The central legal point established in the judgment is the requirement for the Magistrate to consider whether the criminal proceedings initiated are an abuse of process of law or the Court, and whether the dispute is purely of a civil nature, before issuing process.

JUDGMENT

M.S. Jawalkar, J. - Heard Shri S. Borkar, learned Counsel for the petitioner, Shri Mahesh Amonkar, learned Additional Public Prosecutor for respondent No. 1 and Ms. A. Desai, the learned Counsel for the respondent No. 2.

2. Rule. Rule is made returnable forthwith at the request and with the consent of the learned Counsel for the parties.

3. Heard Shri S. Borkar, the learned Counsel for the petitioner. Shri M. Amonkar, the learned Addl. Public Prosecutor for the respondent No. 1 and Ms. A. Desai, the learned Counsel for the respondent No. 2.

4. The present petition is filed invoking inherent powers under section 482 of Cr.P.C. to quash and set aside the Order dated 7.11.2017 for issuance of process issued by the learned Judicial Magistrate First Class, 'A' Court Ponda, Goa("JMFC" for short).

5. The brief facts leading to file the present petition are as under :-

The petitioner has been charged for the offences punishable under sections 441, 506, 34 and 107 of IPC. The trial Court enlarged him on bail. It is the case of the respondent No. 2(legal heir of one Mrs. Anandi Gaude) that the petitioner is an original bhatkar and alongwith so called land sharks is trying to develop the properties of the respondent No. 2. He claimed land bearing survey No. 131/1, 131/3 and 132/10 at Village Bethora, Ponda, Goa under Tenancy proceedings No. TNC/PUR-BET/50/ 1993 from the Mamlatdar at Ponda. It is alleged by the respondent No. 2 that on 12.9.2017, the petitioner along with two others at around 12.30 hours entered in the said properties for inspection and started arguing with the respondent No. 2 and her husband threatened not to mess up with them otherwise they would have to face dire consequences and then they went away from the scene of offence.

6. It is further alleged that on 15.9.2017 at 8.20 hours some unknown labourers illegally trespassed in the said properties and started cutting vegetation and trees in the said properties to develop the plots. When respondent No. 2 tried to stop them the said unknown labourers assaulted the respondent No. 2 and her husband. Therefore, the respondent No. 2 approached Ponda Police Station to initiate action by registering FIR against the petitioner. As no action was taken, the respondent No. 2 filed private complaint bearing Criminal Case No. 102/Pvt/IPC/ 2017/A.

7. The process came to be issued under section 204 of Cr.P.C. against the petitioner.

8. The said order of issuance of process is under challenge before this Court. The challenge to the order is to the issuance of the process mainly on the ground that the learned JMFC failed to appreciate the fact that the petitioner is the lawful owner of the land bearing survey No. 131/2, therefore, there is no question of trespassing of his own property as alleged by the complainant. The learned Magistrate ought to have appreciated the facts that as per the documents the petitioner is the lawful owner of the said property.

9. The Learned Magistrate failed to appreciate that on mere prima facie reading of the complaint no commission of any cognizable or non cognizable offence has been made out as allegations are vague and without any specifications. The learned Magistrate failed to appreciate that as per the version of the complainant herself the petitioner had visited the said property with an intention to inspect and not with an intention to intimidate insult, annoy the respondent No. 2 complainant. Thus, there are no ingredients exist to attract section 441 of IPC.

10. It is further contention that the learned JMFC also acted illegally by not adopting the procedure provided under section 202 sub clause 1 of CR.P.C. since the petitioner is a permanent resident of Mumbai which is beyond the territorial jurisdiction of the learned JMFC. The amended provision makes it mandatory on the part of the Magistrate to postpone the issue of process against the accused in a case where in the accused is residing beyond the area in which the learned Magistrate exercis