HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.JJ Cr.M.P.No.80of2008 PETITIONERS Masoom Ali Merchant and another. h"'' "i"^' VERSUS RESPONDENT JafarAbbas Post for pronouncement of order onj? o-9-2008 Sd/- T.P. Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.SharmaJ.1 Cr.M.P. No. 80 of 2008 PETITIONERS 1. \ -^' RESPONDENT 2. VERSUS Masoom Ali Merchant, son of Gullu Bhai Ratolwala, aged 60 years, resident of near Meghdoot Plastic Behind Shitla Mandir, Neri Road, Kumharvada Tahsil and District Bhavnagar (Gujrat) Pankaj Kumar Mansukhlal Bramhabhatt aged 47 years, Buccle No. 1644 Head Constable, A Division Police Station, Bhavnagar (Gujrat) Jafar Abbas son of Rasool Mohammed, aged 38 years, Resident of Bayron Bazar, District Raipur (CG) Shri Haribhagat Agrawal learned Sr. Counsel with Ku. Rinki Tamrakar for the petitioners. Shri Vibhash Tiwari and Shri Bhashkar Payasi for the respondent. <?'.- APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE. ORDER ( -Jo .9.2008) This petition has been filed for quashing the proceedings of Criminal Case No. 685/2007 pending in the Court of Chief Judicial Magistrate, Raipur wherby learned Magistrate has taken cognizance against the petitioners for the offences punishable under sections 466, 471 and 120-B/34 ofthe Indian Penal Code. 2. The criminal proceedings are sought to be quashed on the ground that by order dated 14.12.2006 learned Magistrate after holding preliminary inquiry under section 200 of the Code of Criminal Procedure has refused to take cognizance on the complaint for the offences punishable under sections 466, 471 and 120-B/34 of the Indian Penal Code. But the i - ^":r.- ".y "<<v;, -/ /^ Revisional Court without affording any opportunity of hearing to the petitioners has quashed the order dated 14.12.2006 passed by the Magistrate and remanded the case with a direction to hold further inquiry, re-examine the material available on record and pass the order afresh. Learned Magistrate has committed an illegality in registering the case against the petitioners and continuance of such proceedings would amount to abuse ofthe process ofthe Court. 3. Heard Shri Hari Bhagat Agrawal learned Sr. counsel with Ku. Rinki Tamrakar for the petitioners and Shri Vibhash Tiwari and Shri Bhaskar Payasi for the respondent and perused the documents availabte on record. 4. Learned counsel for the petitioners submits that at the instance of the respondent the complaint was inquired into by the Chief Judicial Magistrate in accordance with the provisions of Section 200 and 203 of the Code of Criminal Procedure and vide order dated 14.12.2006 learned Magistrate refused to take cognizance and dismissed the complaint.The order was challenged by the respondent before the Additional Sessions Judge, Raipur, who vide order dated 3.2.2007 set aside the order passed by the Magistrate and remanded the case with a direction to hold further inquiryon the point that whether the warrant has been issued by the Court of Chief Judicial Magistrate, Bhavnagar or not, and pass the order afresh. He further submits that the present respondent had made the petitioners party before the revisional Court but the Revisional Court has not afforded an opportunity of hearing to the petitioners before passing the order dated 3.2.2007 which is in violation of the principle of audi alterm partem. He further submits that the trial Court has not inquired into the fact that whether the Chief Judicial Magistrate, had issued the warrant or not and only on the basis of re- examination of the respondent, trial Couri: has registered the case against •~-^ the petitioners and thereby committed an iallegality and continuance of such criminal proceedings would amount to abuse ofthe process ofthe Court. 5. On the other hand counsel for the respondent has supported the order impugned and submit that no warrant of arrest was issued by the Court of Chief Judicial Magistrate, Bhavnagar against the respondent and others and the present petitioners who were beneficiaries of the said warrant by forging the documents entered into the conspiracy with the police officer and tried to execute the warrant against the respondent and others as a result of which they applied for bail before the CJM Bhavnagar for which the warrant is shown to be issued but on the basis of one complaint filed on behalf of the petitioners CJM Bhavnagar registered the Criminal Case No. 333/2006 and sent the complaint under section 156 ofthe Code of Criminal Procedure and on the basis of such complaint which disclosed the cognizanble offence and the police registered the criminal case No. 7/2006. When the respondent approached the Chief Judicial Magistrte, the matter was dealt with in Case No. 7/2006 because the petitioners were requried in that case and finally he was admitted to bail by the order of the Sessions Judge, Bhavnagar. Chief Judicial Magistrate has not issued the warrant of arrest in criminal Case No. 333/2006 or in any case but the petitioners along with the police officer has got prepared the forged warrant and tried to deprive the respondent of his right to life and liberty. 6. It is submitted by the counsel for the petitioners that the revisional Court has committed an illegality by setting aside the order of the Magistrate and remaning the case for being reconsidered in terms of section 398 of the Code of Criminal Procedure. 7. On careful examination of the order dated 14.12.2006 passed by the Chief Judicial Magistrate it appears that after preliminary inquiry under sections 200 and 202 ofthe Codeof Criminal Procedure, learned Magistrate •%, s^<^" s^' has dismissed the complaint in terms of section 203 of the Code of Criminal Procedure against the said order of dismissal of the complaint remedy was available to the respondent under Section 398 of the Code of Criminal Procedure. Section 398 ofthe Code of Criminal Procedure reads as under: "Power to order inquiry. On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate tomake, further inquiry into any complaint which has been dismissed under section 203 of sub-section (4) of section 204 or into the case of any person accused ofan offence who has been discharged. Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity ofshowing cause why such direction should not be made." In accordance with Section 398 of the Code of Criminal Procedure the revisional Court is competent to direct for further inquiry into any complaint which has been dismissed under section 203 of the Code of Criminal Procedure. But in accordance with the proviso to said Section the Court is required to afford an opportunity of hearing to the person who has been discharged. Rider of providing opportunity of hearing is only applicable under section 204(4) or in the case where person accused of an offence has been discharged. Rider of providing an opportunity of hearing is not available under section 203 ofthe Code of Criminal Procedure. 8. According to the rival contentions of the parties the crux of the matter is whether Chief Judicial magistrate has issued any warrant against the respondent or any other person in Criminal Case No. 333/2006 because the disputed warrant is not a warrant in other case but is is in Criminal Case No. 333/2006. ^3 9. The respondent has produced a copy of the order dated 20.9.2006 passed by the High Court of Gujrat, which shows that in pursuance of the complaint in M.Case No. 7/2006 respondent was arrested and granted transitbail. 10. Taking into consideration the observations made by the High Court of Gujrat in Criminal Revision No. 526/2006, the respondent is specifically required to show prima facie case on he basis of documents and statements of the persons who know the fact that Chief Judicial Magistrate has not issued any warrant in Criminal Case No. 333/2006. Respondent has stated in his examiantion dated 16.3.2007 that he came to know from the advocates that no warrant was issued in Criminal Case No. 333/2006 but the trial Court has not examined those advocates. 11. In this case it is established prima facie that no warrant was issued by the Chief Judicial Magistrate in Case No. 333/2006. The trial Court has not relied upon the documents of such witnesses. 12. This is a case of documentay evidence only. Documents are material and existence or non existence of the facts in the instant case cannot be established or proved or disproved by any other means. 13. For the foregoing reasons, it is clear that the trial Court has not committed any illegality in not affording the opportunity to the petitions and has relied upon the documents aforesaid while taking cognizance of the complainant against the respondent. 14. Consequently, the petition is allowed. Order dated 3.2.2007 passed by the Additional Sessions Judge, Raipaur and the order of taking cognizance dated 24.4.2007 passed by the Chief Judicial Magistrate are set aside. Learned Chief Judicial Magistrate is directed to make further inquiry into the complaint specifically relating to the point whether the Chief Judicial 8%. 6 1 Magistrae, Bhavnagar has issued the warrant in Criminal Case No. 333/2006 ornot and pass the order afresh. Sd/- T.P. Sharma Judge