1 CRI.WP 874/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.874/2010. John Paul s/o Anthony Age: 24 Yrs., occu. Business, R/o E-27, 1 /2 Gulmohar Colony, CIDCO, N-5, Aurangabad. - PETITIONER VERSUS 1) The State of Maharashtra 2) Shamsherkhan s/o Sahebkhan Pathan, Age: 29 Yrs., occupation – Labour, r/o Majalgaon, Tq.Majalgaon, District Beed. - RESPONDENTS ***** WITH CRIMINAL WRIT PETITION NO.875/2010 John Paul s/o Anthony Age: 24 Yrs., occu. Business, R/o E-27, 1 /2 Gulmohar Colony, CIDCO, N-5, Aurangabad. - PETITIONER VERSUS 1) The State of Maharashtra 2) Abdul Rauf s/o Abdul Rehman Age: 50 Yrs/. ocuc.Cycle repair, R/o Juna Mondha, Paithan, Tq.Paithan, Dist.Aurangabad. - RESPONDENTS ***** 2 CRI.WP 874/2010 Petitioner – in – person; Mr.KM Suryawanshi, APP for State; Mr.PV Mandlik, Sr.Counsel; Mr CK Shinde, Adv. and Mr.AS Gandhi,Adv. for Resp.No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 6th January, 2011. ORAL ORDER: 1) Heard party-in-person; learned Sr. Counsel and learned APP for respective parties in both the writ petitions. 2) By consent, both petitions taken together. Rule. 3) The petitioner, as a outcome of love affair with Sahedunnissa d/o Bakruddin Din Mohd., got married to her, it was registered on 15.2.2007. This rebelled feelings of her parents. They did not allow the couple to cohabit. Consequently, the petitioner got a decree for restitution of conjugal rights. 4) The Respondent No.2 felt enraged by such activities of the petitioner and to teach him a lesson, innovative ideas are discovered at the behest of father of his paramour. The petitioner has been roped in three criminal cases, i) SCC No.2789/2009 before the 10th JMFC, Aurangabad in terms of Section 323, 504 and 506 of IPC; ii) SCC 3 CRI.WP 874/2010 No.33/2009 before the JMFC, at Paithan for the offence under Sections 323, 504 and 506 of IPC; and iii) SCC No.721/2008 filed before the JMFC at Majalgaon for the offences under Sections 323, 504 and 506 of IPC. The petitioner informs that in the first case, i.e. SCC No.2789/2009, he has been acquitted while rest of the two cases, referred to above, are pending. 5) Issuance of process in later cases and its maintainability is questioned by the petitioner. The petitioner submits that it is only to distort and distract his efforts to get re-united with his wife, the above prosecution has been lodged at the behest of defiant father. He further informs mandatory provisions in terms of Section 202 Cr.P.C. are not adhered to by the learned JMFC while issuing process. 6) Learned Counsel for the respondent No.2 submits that he has nothing to do with the on- going feud between the petitioner/accused either with his wife or her parents. Respondent No.2 is an independent person. No nexus has been projected by the petitioner/accused in the petitions to indicate that the respondent no.2 is used as a stooge to coin insolence efforts of Bakruddin Din Mohd. The present proceedings by way of writ petitions are not maintainable. 4 CRI.WP 874/2010 Efficacious remedy of Revision under Section 397 Cr.PC. could have been exhausted. No exceptional circumstances are pointed by the petitioner/accused to invoke jurisdiction of this Court under Article 226 of the Constitution of India. 7) The petitioner/accused submits that he had no occasion or reason to either visit at Paithan or at Majalgaon. However, this assertion/defence , at this stage of the matter, is not a factor to cause interference, as the case will have to be tested on the complaint and the order of issuance of process. 8) Perused the order of issuance of process by the learned JMFC, at Paithan and at Majalgaon. In the former, the learned Magistrate by order dated 13.1.2007, has observed, - “Presented by complainant. Case be registered as a Summary Criminal Case and put up for verification”. Thereafter on 21.1.2009, he has passed following order, - “Heard Learned Counsel. Perused Complaint and verification. Prima facie case made out. Hence, issue process against Accused for offence punishable under Sections 323, 504, 506 r/w 34 of IPC. Returnable on 3/2/2009.” 5 CRI.WP 874/2010 9) In the later case at Majalgaon, the learned Magistrate has on 18/07/2008, observed, - “ Perused complaint. Statement of complainant. Prima facie offence under Section 323, 504 of IPC is made out against the accused. Hence, issue process.” 10) Only because a Revision is maintainable, the same would not constitute a bar for entertaining an application under Section 482 of Cr.P.C. or under Article 226 of Constitution of India. Jurisdiction under Section 482 has to be exercised with great care, matter need not be examined superficially. Whether other dispute has been given cloak of criminal offence, also needs to be borne. Jurisdiction has necessarily to be exercised to prevent abuse of system. 11) In order to curb harassment of genuine litigants and to have a check on false prosecutions, an amendment was made in Section 202 Cr.P.C. to ensure that the person residing at far of place should not be harassed by unscrupulous elements. Consequent thereupon, clause (1) of Section 202 made it obligatory upon the Magistrate that before summoning the accused, residing beyond his jurisdiction, he shall enquire into the case himself or direct an investigation to be made by a police officer or 6 CRI.WP 874/2010 by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding. Section 202(1) ordains as under, - “202- Postponement of issue of process, - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.” 12) The term “if he thinks fit” and thereafter by virtue of amendment effective from 23.6.2006 “and shall” will have to be read in juxtaposition. The discretion that has been left to the Magistrate needs to be exercised in a judicious manner and not capricious or in a arbitrary manner. It is the subjective satisfaction of the Magistrate before issuance of process, if he thinks fit, if the accused resides out of jurisdiction, he may, notwithstanding such obligation, issue process. However, having gone through the orders of the Magistrates in both the 7 CRI.WP 874/2010 cases, it is vivid, the learned Magistrate failed to exercise such powers legally. No reasons are assigned what prompted him to issue process to the petitioner who was not a local resident. The procedural prescriptions are meant for doing substantial justice. The learned Judge should have held an inquiry as to sufficiency of grounds to proceed with the complaint. 13) The conjoint reading of the complaints illustrate that the complainants are equipped with accurate and full address of the accused However, both the complaints meticulously do not inform their full address to trace them at the respective places. Both the complainants plead, petitioner was unknown to them. That apart, vague and general allegations are made in the complaint at Paithan that the accused, with his family members, while at Paithan, has terrorized the complainant, dashed, had an altercation and hence the offence. There was nothing to project that hurt was caused voluntarily. In the case at Majalgaon, it is said, petitioner had an altercation and hence the offence. The source of collecting address of petitioner is not disclosed at any place. The allegations taken together would hardly make out a case against the petitioner. 8 CRI.WP 874/2010 14) The complainants did not bother to approach the Police, if they were harassed by the accused/petitioner or he caused any damage. This also blasts the attitude of the respective complainants. 15) Petitioner availing a remedy in terms of Section 397 Cr.P.C., will not obliterate effect of present proceedings, as manifest error has been committed by the learned Judge. 16) The Hon’ble Apex Court in the matter of State of Haryana and Ors. Vs. Bhajanlal and Ors., reported in 1992 SCC (Cri.) 426. gave following categories of cases, by way of illustration, wherein such powers could be exercised either to prevent abuse of the process of the court or otherwise to secure ends of justice. The Hon’ble Lordships also made it clear that though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) where the allegations made in the First Information Report or the complaint, even if they are 9 CRI.WP 874/2010 taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable 10 CRI.WP 874/2010 on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 17) In the matter of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Ors., reported in (2008) 1 SCC (Cri.) 259, three- judges Bench of the Hon’ble Supreme Court observed, - “The court must ensure that criminal prosecution is not used 11 CRI.WP 874/2010 as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself.” 18) Analyzing the above proposition with the facts of the present case, the petitioner/accused has made out a case to invoke such jurisdiction. The prosecution is nothing more than a persecution to ensure that the petitioner to be kept away from company of Smt. Sahedunnisa, the cause he was prosecuting. 19) In the result, the Criminal Writ Petitions are allowed. The Criminal prosecution being Criminal Case No.721/2008 pending before the learned JMFC, Majalgaon and SCC No.33/2008 pending before the learned 12 CRI.WP 874/2010 JMFC, at Paithan, are quashed and set aside. The bail bonds, if any, executed by the accused are also terminated. ( K.U.CHANDIWAL ) JUDGE bdv/