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IN THE HIGH COURT OF ALLAHABAD
S. R. BHARGAVA
VISHWA NATH - Appellant
Versus
MUNSIF LOWER CRIMINAL COURT, BAHRAICH - Respondents
CRI. M. C. 612 Of 1987
Decided On : 05/03/1989
CRIMINAL PROCEDURE CODE - Section 482 - Quashing of Proceedings - Petitioners, accused in a complaint case, challenged the proceedings before the Magistrate, alleging harassment and humiliation due to the issuance of a non-bailable warrant and subsequent arrest. The Court clarified the correct procedure for dealing with complaint cases, emphasizing that the Magistrate should issue summons instead of warrants unless there are specific reasons to believe the accused will abscond or disobey the summons.
Fact of the Case:
Petitioners, accused in a complaint case alleging misrepresentation and cheating, challenged the proceedings before the Magistrate, claiming harassment due to the issuance of a non-bailable warrant and subsequent arrest. They argued that the allegations did not constitute an offense and that the Magistrate should have discharged them under Section 245(2) Cr.P.C.
Finding of the Court:
The Court held that the Magistrate should have issued summons instead of a non-bailable warrant, as there was no reason to believe the petitioners would abscond or disobey the summons. The Court also clarified that the Magistrate has the discretion to discharge the accused under Section 245(2) Cr.P.C. even before recording evidence, if the charge is found to be groundless.
Issues: 1. Whether the Magistrate erred in issuing a non-bailable warrant against the petitioners without sufficient grounds. 2. Whether the Magistrate should have discharged the petitioners under Section 245(2) Cr.P.C. without recording evidence.
Ratio Decidendi: 1. The Court interpreted Section 204 Cr.P.C., holding that a Magistrate should issue summons instead of a warrant unless there are specific reasons to believe the accused will abscond or disobey the summons. 2. The Court interpreted Section 245(2) Cr.P.C., holding that the Magistrate has the discretion to discharge the accused even before recording evidence, if the charge is found to be groundless.
Final Decision: The Court partly allowed the petition, quashing the non-bailable warrant and allowing the petitioners to appear before the Magistrate through their counsel. The Court also directed the Magistrate to consider the petitioners' application for discharge under Section 245(2) Cr.P.C. if they so moved.
( 1 ) THE petition, under Section 482 Cr. P. C. has arisen from a complaint.
( 2 ) PETITIONERS Vishwa Nath Jiloka, Amar Nath Jiloka and Sharnbhoo Nath Jiloka are real brothers and are residents of Patna. Opposite party No. 2 Prem Marain Pandey is a resident of Bahraich. Opposite Party No. 2 Prem Narain Pandey filed a criminal complaint against the petitioners for offences under Section 420/406 I. P. C. with the allegations that on 14th June, 1986 he met the petitioners at Nanpara Railway Station and during talks petitioners introduced themselves to him. They represented themselves to be respectable Brahmins and told the purpose of their visit as search of a groom for their daughter. Opposite party No. 2 believed the representation of the petitioners and told them about Narendra Kumar, unmarried brother of his brother-in-law gainer (sic ). They talked about mutually seeing the girl and the boy on 15th June, 1986. On that day, opposite party No. 2 along with his family members and the proposed boy reached Dalmia Dharamshala where petitioners along with the girl were present. After approval of the boy and the girl by the respective parties, the boy made gift of a ring in token of engagement to the girl. From the side of opposite party No. 2 cash of Rs. 500/- was given to the girl and sum of Rs. 50/- was spent in sweets, fruits etc. It was settled that Tilak Ceremony shall be held on 28th June. 1986. But on the date so fixed petitioners or their relations did not turn up, nor sent any information. This gave rise to suspicion. On 18th July, 1986 opposite party No. 2 sent his brother Yogesh Pandey to Patna for ascertaining the truth. Then he came to know that the petitioners are Agarwal as and have no daughter of marriageable age. They refused to talk with complainants brother and insulted him. Thus, they cheated the opposite party No. 2 and his relations of Rs. 2500/ -.
( 3 ) LEARNED Magistrate recorded statement of Prem Narain Pandey under Section 200 Cr. P. C. and Statement of Narendra Kumar under Section 420 I. P. C. Learned Magistrate found prima facie case under Section 420 I. P. C. against the petitioners and directed issue of summons to petitioners for their appearance on 24th October, 1986. On 10th August, 1987 petitioner No. 1 Vishwa Nath Jiloka was served with a non-bailable warrant at his shop and was arrested. He managed his bail from Chief Judicial Magistrate, Patna. Then he appeared before the Magistrate concerned at Bahraich and secured bail.
( 4 ) THEREAFTER, the petitioner filed this petition under Section 482 Cr. P. C. , for quashing of the proceedings pending before the Magistrate concerned. They denied the allegations of the complaint and asserted that a false complaint with concocted facts and motive of harassing the petitioners on account of property dispute between them and their cousin Vishwa Nath, was filed. The allegations of the complaint do not constitute any offence.
( 5 ) NOTICES were issued to opposite parties. Parties have exchanged affidavits. It is asserted by the opposite party No. 2 that the complaint was filed on correct facts constituting offence of cheating.
( 6 ) IT is admitted by the petitioners that the petitioners Nos. 2 and 3 have not yet "surrendered" before the Magistrate concerned. On behalf of the petitioners serious grievance was expressed and it was contended that the petitioners are respectable businessmen of Patna. Yet in a complaint case petitioner No. 1 was suddenly arrested at, his business place and was humiliated. It was further explained on behalf of the petitioners that the petitioners Nos. 2 and 3 have not yet "surrendered" before the Magistrate concerned because they apprehend similar humiliation and harassment. In the petition itself word "surrender" has been used in connection with complaint case. This is result of wrong and illegal practice prevalent in the Magistrates courts. On account of wrong and illegal practice of surrender of the opposite parti
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