IMPORTANT POINT
If the Magistrate has not applied his mind in issuing process, High Court is bound to exercise power u/s 482 CrPC.

JUDGMENT

Kurian Joseph, J.—Cognizance of an offence is taken by the Magistrate under Chapter XIV Section 190 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code of Criminal Procedure’). The Chapter deals with “Conditions Requisite For Initiation of Proceedings”. The Magistrate is empowered to take cognizance of an offence Under Section 190(1)(a) of Code of Criminal Procedure upon receiving a complaint of facts which constitute such offence. Chapter XV Code of Criminal Procedure deals with the further procedure for dealing with “Complaints to Magistrate”. Under Section 200 of Code of Criminal Procedure, the Magistrate, taking cognizance of an offence on a complaint, shall examine upon oath the complainant and the witnesses, if any, present and the substance of such examination should be reduced to writing and the same shall be signed by the complainant, the witnesses and the Magistrate. Under Section 202of Code of Criminal Procedure, the Magistrate, if required, is empowered to either inquire into the case himself or direct an investigation to be made by a competent person “for the purpose of deciding whether or not there is sufficient ground for proceeding”. If, after considering the statements recorded Under Section 200 of Code of Criminal Procedure and the result of the inquiry or investigation Under Section 202 of Code of Criminal Procedure, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he should dismiss the complaint, after briefly recording the reasons for doing so. Chapter XVI Code of Criminal Procedure deals with “Commencement of Proceedings before Magistrate”. If, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, the Magistrate has to issue process Under Section 204(1) of Code of Criminal Procedure for attendance of the accused.

2. In the instant case, we are called upon to decide the scope of the ‘opinion of Magistrate’ on sufficient ground for proceeding to issue process to the accused. The question has arisen in the background of an order passed by the Judicial Magistrate First Class, Srinagar on 03.04.2007 on a complaint filed by the first Respondent herein Under Section 500 of Ranbir Penal Code, 1932 [Section 500 the Indian Penal Code (45 of 1860)]. The operative portion of the order reads as follows:

“Perused the complaint, and the statements recorded. In the first instance of proceedings, let bail warrant to the tune of Rs. 15,000/- be issued against the alleged accused persons, with direction to accused persons to cause their appearance before this Court on 22.4.07, to answer the material questions.”

3. According to the Appellants, the complaint filed by the first Respondent did not constitute an offence and hence they were not liable to be called by the Magistrate to defend the criminal proceedings. Thus, aggrieved, the Appellants filed a petition to quash the proceedings initiated by the Magistrate by order dated 03.04.2007.

4. The High Court, by the impugned order, rejected the petition holding that the veracity of allegations made in the complaint filed by the first Respondent before the Magistrate “is a question of evidence and can be settled only when the evidence is adduced”.

5. Heard Shri Soli J. Sorabjee, learned senior Counsel appearing for the Appellants in Criminal Appeal No. 1347 of 2010 and appearing for the Respondents in Criminal Appeal No. 1348 of 2010. Ms. Vibha Datta Makhija, learned senior Counsel appeared for the Respondents in Criminal Appeal No. 1347 of 2010 and for the Appellants in Criminal Appeal No. 1348 of 2010. Ms. S. Janani, learned Counsel appeared for the complainant/ Respondent(s) in both Criminal Appeal Nos. 1347 of 2010 and 1348 of 2010.

6. Though the learned senior Counsel made an attempt to canvas on the merits of the matter as well, we do not find it necessary and it is not proper also at this stage to deal with the same. However, the contention that the Ma