SWAMI MICK MONASSAN v. POPATLAL P. MISTRY — 1982 DIGILAW 188 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE applicant Swami Mick Monassan is accused No. 1 in a Criminal Case No. 2284 of 1982 filed by the complainant Popatlal P. Mistry opponent No. 2 herein before the Metropolitan Magistrate (Court No. 15) at Ahmedabad for the alleged offences under secs. 5 (1) (b) and 5 (1) (c) of the Suppression of Immoral Traffic in Women and Girls Act 1956 (Act No. 104 of 1956) which will hereinafter be referred to as the said Act. Accused No. 2 in the said Criminal Case is one Guru Freddy. Accused Nos. 1 and 2 are residents of village Gurukula named Island Home Narayana Gurukula Foundation Ramanthali P. O. 670308 Cannanore District Kerala. The learned Metropolitan Magistrate has passed an order dated 1-9-1982 for the issuance of the summons to both the accused under sec. 5 (1) (b) and 5 (1) (c) of the said Act. Accused No. 1 who will hereinafter be referred to as the applicant having been aggrieved by the aforesaid order has filed the present Criminal Misc. Application under sec. 482 of the Code of Criminal Procedure 1973 to quash the process. ( 2 ) ). It is necessary to have a perspective of the allegations of the complainant in order to ultimately appreciate the legality of the impugned order. ( 3 ) ). Complainant Popatlal P. Mistry opponent No. 2 herein is the father of one Miss Jivantika who was born on 10/02/1960 She passed B. Sc. and B. Ed. Examinations and toop up serving as a teacher with Amrat Jyoti School situated at Ambawadi Ahmedabad. It is alleged that during the period of her service he came into contact with accused No. 2 who had been to Ahmedabad. It is pertinent to note that the complainant is not in a position to state in his complaint as to how she came into contact with accused No. 2. However the allegation of the complainant that is of opponent No. 2 is that accused No. 2 induced Jivantika to go to Kerala and join the Ashram. It is also alleged that accused No. 2 had offered Jivantika easy financial gains and had thereby induced her to go to the Ashram. However the allegation of the complainant that is of opponent No. 2 is that accused No. 2 induced Jivantika to go to Kerala and join the Ashram. It is also alleged that accused No. 2 had offered Jivantika easy financial gains and had thereby induced her to go to the Ashram. It is further alleged that though Jivantika has attained the age of majority she has not yet acquired maturity to be able to take correct and right decisions affecting her life. Jivantika went to the Ashram at Kerala and stayed there from April 198 2/07/1982. As she did not return from Kerala within a reasonable time the opponent No. 2 became suspicious about the activities of the Ashram. He therefore followed her to the Ashram. He states in his complaint that he inquired from the local people particularly Gujaratis about the activities of the Ashram and about the activities of the applicant and the accused No. 2. He heard the gossips in the town which caused him great worry for the future of his daughter. He learnt that these two persons indulge in illegal activities pertaining to women and girls. He also learnt that these two persons capture the girls and women by giving them inducements bring them over and keep them in luxurious atmosphere. Thereafter by foul means they make misuse of women and take undue advantage of their immature understanding. It is alleged that though these two persons styled themselves as Swamis they are in fact go between links to sell such women who have fallen prey to the dishonest fraudulent and vicious motives. The opponent No. 2 contacted his daughter Jivantika and succeeded in bringing her back to Ahmedabad with him. The found that Jivantika was under the influence of the applicant and accused No. 2 but the influence started fading away till she received a letter dated 20-8-1982 from accused No. 2. The petitioner came to Ahmedabad and presented a Habeas Corpus Petition bearing No. 1207 of 1982 alleging that Jivantika who was a major women was unlawfully confined by her father. The petition was heard by a Divisional Bench of this Court which rejected it. Thereafter it is alleged having been frustrated in his designs to take Jivantika back to the Ashram the applicant turned lunatic and gave a criminal intimidation to Jivantikas uncle. A complaint under sec. The petition was heard by a Divisional Bench of this Court which rejected it. Thereafter it is alleged having been frustrated in his designs to take Jivantika back to the Ashram the applicant turned lunatic and gave a criminal intimidation to Jivantikas uncle. A complaint under sec. 506 of the Indian Penal Code was registered against him in consequence of which be was arrested and continues to be in judicial custody. The same criminal case against him is pending before the Metropolitan Magistrates Court at Ahmedabad. the opponent No. 2 has further alleged in his complaint that after having received the letter from accused No. 2 Jivantika continues to be in a disturbed state of mind and she is unable to think properly in her own interest and it is apprehended that if she continues further in such a state of mind she might turn insane. The opponent No. 2 has apprehension that the inducement has worked with her and the complaint has been filed by him under a bona fide belief that both the accused have committed the offences alleged against them. ( 4 ) ). It is alleged in the complaint that both the accused in mutual cooperation have done several acts intentionally in the commission of that said offence and they have done so with the criminal knowledge and intention for which they are required to be punished under sec. 5 of the said Act read with secs. 35 and 37 of the Indian Penal Code. It is alleged that both the accused have althroughout induced and are still inducing Jivantika to leave Ahmedabad and to go to the Ashram at Kerala with a view to make use of her for the purpose of prostitution. It is further alleged that the complainant appellant No. 2 has come to know that both the accused have tried to sell off Jivantika in some other countries. To put it shortly the complainant alleges that the two accused are indulging in the traffic of women from India to other countries and therefore they are guilty for the offences punishable under sec. 5 of the said Act. To put it shortly the complainant alleges that the two accused are indulging in the traffic of women from India to other countries and therefore they are guilty for the offences punishable under sec. 5 of the said Act. His apprehensions about the activities of the two accused and the Ashram got support from the Kerala newspapers which however have not been produced along with the complaint and it appears that the learned Metropolitan Magistrate did not have those newspapers before him when he passed the impugned order. The complainant has prayed that the evidence may be allowed to be led in the complaint and/or the complaint may be sent for investigation under sec. 156 (3) of the Criminal Procedure Code or as there are Special circumstances involved in this case the case may be entrusted for in vestigation to the Crime Branch sec. of the police. The complainant attached the following three documents along with the complaint: (1) The Copy of the Habeas Corpus Petition filed before the High Court. (2) The order passed by the High Court in the same petition. (3) The copy of the letter dated 20-8-1982 written by accused No. 2 to Jivantika. THE complainant further stated that he relied upon the following witnesses : (1) Prabhavati Mistry Ahmedabad. (2) Kanjibhai Mistry Ahmedabad. (3) Prabhudas Patwari Ahmedabad. (4) Swamini Brigitee Kerala (5) Principal of Amrit Jyoti High School Ahmedabad. ( 5 ) ). The complaint was filed on 1-9-1982. ( 6 ) ). The learned Magistrate recorded the statement of opponent No. 2 Popatlal P. Mistry the original complainant who stated before him that Jivantika was his daughter who had attained the age of majority. The two accused are running a so called Ashram at Kerala and under the pretext of religion they had induced his daughter to go to Kerala intending to keep her there at the Ashram permanently. The motive behind doing so is to misuse the young age of his daughter or to sell her. On account of the apprehension he had filed complainant. On the basis of this examination the learned Magistrate passed the impugned order for the issuance of the summons on both the accused under sec. 5 (1) (b) and 5 (1) (c) of the said Act. ( 7 ) ). Mr. On account of the apprehension he had filed complainant. On the basis of this examination the learned Magistrate passed the impugned order for the issuance of the summons on both the accused under sec. 5 (1) (b) and 5 (1) (c) of the said Act. ( 7 ) ). Mr. A. D. Shah Advocate for the Applicant urged before me that the impugned order suffers from the following infirmities: (1) The bare perusal of the complaint does not bring out even a prima facie case for the commission of the alleged offences by the two accused. (2) A close perusal of the complaint clearly reveals that it is based on hearsay and apprehension on the part of opponent No. 2 but there is really speaking no evidence whatever or in other words no legal evidence to support the complaint. (3)EVEN though the opponent No. 2 had himself asked for sending the complaint for investigation under sec. 156 (3) of the Code of Criminal Procedure the learned Magistrate passed an order for the issuance of summons only on the basis of the evidence of the complainant taken before him which evidence is recorded in the earlier part of this judgment. It is pertinent to note Mr. Shah submitted that there is no reference whatever in the impugned order to the documents produced by the complainant and that even though the names of witnesses were stated in the complainant itself not one was examined. Mr. Shah submitted that the impugned order is patently illegal under the aforesaid circumstances and is an instance of abuse of the process of Court. My attention was drawn to the order passed in Habeas Corpus Petition. It is necessary that I reproduced the as same which is as under:- "there is no material on record to show that respondent No. 3 is being kept in wrongful confinement or is being prevented from moving about freely by respondents 1 and 2 who are her parents. There is no such averment in the petition. All that the petitioner says is that he fears that it may be so. There is no material on record which would go to show that she is being kept in wrongful confinement. Petitioner is the manager of an institution which is being run in Kerala village under the name of Gurukul Island Home. We do not know anything about the activities of the institution. There is no material on record which would go to show that she is being kept in wrongful confinement. Petitioner is the manager of an institution which is being run in Kerala village under the name of Gurukul Island Home. We do not know anything about the activities of the institution. We do not know how many women inmates there are the purpose of the institution and what women inmates do there and how they are protected. We know nothing about the activities of this institution. We cannot act at the instance of a manager of an institution in a distant State about whose activities we know noth- ing. More so when there is no material whether respondent 3 is being kept in wrongful confinement and is in the custody of her parents. There is no substance in the petition. It is rejected. " ( 8 ) ). Mr. Shah commented that this order is one of the three documents produced by the applicants complainant and its perusal discloses nothing which would substantiate the allegations of opponent No. 2 against the applicant and the other accused. ( 9 ) ). Mr. Shah then invited my attention to the letter dated 20-8-1982 written by accused No. 2 to Jivantika upon the contents of which the opponent No. 2 has put reliance. It is a short letter and needs to be reproduced in its entirety It is as under:" 20/08/1982 "my dear Jivantika, received your distressing letter and feel sad for the situation in which you have to live and hope it will be over soon. Let me inform you however that Swamini Brigitte was badly beaten up Swamy Mick beaten and kicked while laying on the ground so that he had to go to the hospital and also Swamy Guy badly beaten and kicked. Also the people of the Gujarati community who helped your father have started a slendering campaign in the newspapers which is still going on. today and have vowed to destroy the Gurukula at any cost. Even the people who have beaten the Gurukula inmates are still venting their hatred towards us every day without the least regret for their actions. Under these circumstances it is very difficult for me to withdraw the cases as I will leave off all these people who are hostile against us and who vow to destroy us. Even the people who have beaten the Gurukula inmates are still venting their hatred towards us every day without the least regret for their actions. Under these circumstances it is very difficult for me to withdraw the cases as I will leave off all these people who are hostile against us and who vow to destroy us. How can I excuse your father without excusing the others? However if your father is willing to come with you here and excuse himself for what has happened then I will withdraw the cases. Also I will have to perform a special Agnihotra for purification as the sanctity of the Ashram was badly violated due to his actions. I think it is but normal that your father should come and apologize for what has happened Swamini Brigittes eyes are wetted with tears everytime somebody speaks about this perhaps she is even suffering the most in all this as she was beaten so very badly by vulgar men. All of us are suffering as much as you for all this. If there should be financial difficulties for your father to come here with you I am willing to pay the expenses. I think this is the best solution for all concerned. Hope wish and pray for the best for you and may God grant us to meet soon. Be brave and honest and God will help you whatever the difficulty. Every second of the day you are in our minds. With Blessings: sd/ Guru Freddy. ( 10 ) ). It appears that the applicant has put reliance upon the last sentence in the letter Every second of the day you are in our minds. The perusal of the letter would show that the sentence quoted by the complainant opponent No. 2 is taken out of the context. Mr. Shah submitted that perusal of this letter also shows that accused No. 2 had written this letter in reply to a letter received from Jivantika. It was not therefore on his own accord that he had addressed this letter to Jivantika. The letter also refers to a complaint Sled by accused No. 2 against opponent No. 2 herein father of Jivantika and others. Mr. A. D. Shah states that the complaint filed by accused No. 2 i. earlier in point of time than the complaint filed at Ahmedabad by the opponent No. 2. The letter also refers to a complaint Sled by accused No. 2 against opponent No. 2 herein father of Jivantika and others. Mr. A. D. Shah states that the complaint filed by accused No. 2 i. earlier in point of time than the complaint filed at Ahmedabad by the opponent No. 2. It is submitted that there is nothing in this letter which would justify either an apprehension or an allegation that both the accused are dealing in trafficking of women. ( 11 ) ). The third document is of course the Habeas Corpus Petition filed by the present applicant and there is nothing therein which would support an inference that the accused are dealing in trafficking of women. Mr. Shah submitted that all the three documents produced by the opponent No. 2-complainant do not in any way support the allegations made in the complaint. ( 12 ) ). Mr. Shah submitted that if now the complaint itself is read it would go to show that the apprehension of opponent No. 2-complainant is based upon gossip and heresay. At the end of paragraph 4 it is stated that Except this information gathered from the records of this application the complainant has not with him any other authentic in formation as regards the status respectability reputation and internal and external activities pertaining to the aforesaid Ashram ( 13 ) ). It is further found stated in the complainant (paragraph 5) that the complainant does not allege anything Oil the point how she came into contract with Guru Freddy because complainant has not with him any all proof evidence on that score. Complainant himself has reserved his right to adduce evidence on this aspect when the case would ripe for hearing. ( 14 ) ). It is further found stated in the complaint that since Jivantika did not return in time from the tour on which she had gone the opponent No. 2 complainant followed her and went to the Ashram In this connection he states Before going to the Ashram I inquired there from the local people particularly Gujaratis about the activities of the Ashram and of both the accused. To my surprise the reports were otherwise and the gossips in the town were such which would cause a great worry for the future of said Jivantika. To my surprise the reports were otherwise and the gossips in the town were such which would cause a great worry for the future of said Jivantika. It was learnt from different persons that these two accused indulge in illegal activities pertaining to women and girls and it was so said by people at large that these two accused capture the girls and women by giving them inducement and they bring such women over there keep them in luxurious atmosphere. Now this is an important part of the complaint and it has been rightly commented upon by Mr. Shah. Mr. Shah submitted that these allegations are absolutely vague inasmuch as though opponent No. 2-complainat had contacted local Gujaratis no particulars are furnished with respect to them nor is an affidavit of even one of them is filed. On the contrary the complainant himself states that These gossips caused him concern about his daughter. Mr. Shah submitted that the complaint is thus based not on evidence but on gossips and it is on the basis of this complaint and the bare allegation of the complainant that the learned Magistrate has been pleased to issue an order of summons which would constrain accused No. 2 to come to Ahmedabad all the way from Kerala. ( 15 ) ). Though the strong allegations are made by opponent No. 2 complainant against the two accused this is a case of no evidence and therefore there was no justification whatever for the learned Magistrate to have issued the summons on the accused. ( 16 ) ). Mr. Shah submitted that as a matter of fact if the concerned sections are closely perused the allegations made in the complaint do not disclose any offence having been committed under them and that it was his second argument that even if it is concluded that allegations would constitute an offence under the concerned sections there was no legal evidence to support the allegations but that the allegations in the complaint were based upon gossips and surmises. The apprehension on the part of the complainant may be real but what the learned Magistrate is expected to consider is not whether the apprehension on the part of the complainant is real but whether the offence stated in the complainant is made out and/or whether there is any prima facie basis for such charges. ( 17 ) ). The apprehension on the part of the complainant may be real but what the learned Magistrate is expected to consider is not whether the apprehension on the part of the complainant is real but whether the offence stated in the complainant is made out and/or whether there is any prima facie basis for such charges. ( 17 ) ). In this connection Mr. Shah invited my attention to three rulings of the Supreme Court. He cited the ruling in the case of R. P. KAPUR V. STATE OF PUNJAB AIR 1960 SUPREME COURT 866 for the following proposition. The High Court would be reluctant to interfere under sec. 561 (Criminal Procedure Code 1898 to quash the proceedings except when it was necessary to prevent the abuse or the process of any court or otherwise to secure the ends of justice. The following three illustrative circumstances are given wherein the inherent jurisdiction could legitimately be exercised : (1) When there is a legal bar against the institution or continuance in respect of the offence alleged. (2) Where the allegations in the First Information Report of the complainant even when taken at their face value and accepted in their entirety do not constitute the offence alleged. (3) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. ( 18 ) SIMILAR proportions have also been laid down in a subsequent ruling of the Supreme Court in the case of SMT. MAGAWWA V. VEERANNA SHIVALINGAPPA KONJALGI AND OTHERS AIR 1976 SUPREME COURT 1947 It is true that the Magistrate has been given an undoubted discretion in the matter whether a process should be issued on the basis of the complainant before him but discretion has to be judicially exercised by him. It is also true that once the Magistrate has exercised his discretion the High Court or even the Supreme Court would not substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint if proved would ultimately end in conviction of the accused. However in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients or an offence which is alleged against the accused. (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible. (4) Where the complaint suffers from fundamental legal defects such as want of sanction or absence of a complaint by legally competent authority and the like. ( 19 ) ). Mr. Shah submitted that the present case falls within both the categories. Firstly the averments so vaguely stated in the complaint do not make out any offence under sec. 5 (1) (b) and/or 5 (1) (c) of the said Act and secondly even if it is assumed that the ingredients of offence can be made out from the allegations scattered over the complaint this is a case of no legal evidence which would justify the Magistrate in issuing the order. ( 20 ) ). In order to appreciate the first argument of Mr. Shah it is necessary to have before us the concerned provisions of the said Act. Sec. 5 (1) (b) and (c) of the said Act runs as under :"5. Procuring inducing or taking woman or girl for the sake of prostitution. (1) Any person who (b) induces a woman or girl to go from any place with the intent that she may for the purpose of prostitution become the inmate of or frequent a brothe (C) takes or attempts to take a woman or girl or causes a woman or girl to be taken from one place to another with a view to her carrying on or being brought up to carry on prostitution; or . ( 21 ) ). Now the word brothel is defined in sec. ( 21 ) ). Now the word brothel is defined in sec. 2 (a) of the said Act as under :"brothel includes any house room or place or any portion of any house room or place which is used for purposes of prostitution for the gain of another person or for the mutual gain of two or more prostitutes. " ( 22 ) ). Sec. 2 (e) of the said Act deals with the definition of prostitute as under :"prostitute means a female who offers her body for promiscuous sexual intercourse for hire whether in money or in kind" (Underline supplied ). ( 23 ) ). Sec. 2 (f) of the said Act defines prostitution as under :-"prostitution means the act of a female offering her body for promiscuous sexual intercourse for hire whether in money or in kind. " ( 24 ) ). The Concise Oxford Dictionary explains the word promiscuous as under :"of mixed and disorderly composition; having sexual relations unrestricted by marriage or cohabitation. " ( 25 ) ). Now the complaint is required to be read in the light of the above statutory provisions. The perusal of the complaint nowhere discloses that Jivantika herself is interested in offering her body for promiscuous sexual intercourse for hire whether in money or in kind. This is an important ingredient of the offence under sec. 5 (1) (b) or (c) of the said Act and in the absence of it it is difficult to say that the offence is made out even prima facie in the complaint. It is also pertinent to note that there is no evidence no legal evidence upon which a conclusion can be reached that the Ashram run by the applicant and accused No. 2 is a brothel. In that connection I may once more refer to the statement in the complaint at paragraph 4 that the complainant has not with him any other authentic information as regards the status respectability reputation and internal and external activities pertaining to the aforesaid Ashram. The only information which is referred to is the record of Special Criminal Application No. 1207 of 1982 a copy of which has been produced has been referred to above and it is shown above that it does not contain anything which would bring the complainants case against the accused within the ambit of sec. The only information which is referred to is the record of Special Criminal Application No. 1207 of 1982 a copy of which has been produced has been referred to above and it is shown above that it does not contain anything which would bring the complainants case against the accused within the ambit of sec. 5 (1) (b) or (c) of the said Act. In paragraph 11 of the complaint it is alleged that both the accused have althroughout induced and still they are inducing Jivantika to leave Ahmedabad and to go to Kerala Ashram. The accused knew well that she may for the purpose of prostitution become the inmate of or frequent. When the complaint is perused in order to ascertain whether it discloses commission of a particular offence it is not enough to consider a bare allegation but it is further necessary to consider the circumstances brought on the record in the perspective of which the allegations are made. Otherwise it is easy to throw and draft a complaint in a manner where the allegations would go to constitute an offence. It must appear from the perusal of the complaint as a whole that the complainant has brought out therein the circumstances which disclose on offence. In other words the allegations are required to be read in the entire context of the complaint and the circumstances narrated therein. I agree with Mr. Shah that perusal of the complaint as a whole read along with the documents attached do not disclose the offence under sec. 5 (1) (b) or (c) on the said Act. ( 26 ) ). Even assuming that it cannot be said that the allegations do not at all constitute the offence this is a case of no legal evidence on the basis of which the impugned order could have been passed. The opponent No. 2 complainant admittedly relied upon what loose inquiry he made from the local Gujarati populace and upon the gossips in the town. The Kerala newspaper upon which reliance is sought to be placed is not produced along with the complaint nor even its name is disclosed. It is pertinent to note that the very opponent No. 2 sought an order for investigation under sec. 156 (3) of the Case of Criminal Procedure or for directing that the matter may be investigated by the Crime Branch Section of the Police. It is pertinent to note that the very opponent No. 2 sought an order for investigation under sec. 156 (3) of the Case of Criminal Procedure or for directing that the matter may be investigated by the Crime Branch Section of the Police. Even though the investigation was sought in the complaint itself what the learned Magistrate did was to issue process on the evidence of the opponent No. 2-complainant which evidence consists only of apprehension and allegation without disclosing at the same time under what circumstances and on what legal basis it could prima facie be inferred that the applicant and accused No. 2 are guilty of the offences imputed against them. ( 27 ) ). Mr. Bakul Joshipura the learned Advocate for the opponent No. 2 stated before me that allegations of opponent No. 2 do make out the alleged offence and that at the stage when the learned Magistrate issues process he is not required to go into the question of evidence. Mr. Joshipura submitted that there was enough evidence particularly the copy of the petition filed in Special Criminal Application No. 1207 of 1982 and the letter of accused No. 2 which has been referred to above. With respect it is difficult for me to agree with Mr. Joshipura that the above documents disclose the offence under sec. 5 (1) (b) and (c) of the said Act. Mr. Joshipura also referred me to the citation of witness who could have deposed to in support of the allegations made in the complaint but the difficulty is that the learned Magistrate has not examined any one of these witnesses and has thought it fit to rely upon the evidence of the complainant himself which as it stands is perfunctory inasmuch as it does not disclose the basis on which the allegations are made. It is true that the learned Magistrate cannot enter into the detailed appreciation of evidence but it is his duty at least to properly scan the complaint the circumstances stated therein and the basis on which the inferences are drawn. The learned Magistrate has with respect not applied his mind at all to these important considerations before he passed the impugned order. It appears that he has not even considered what was the basic prayer of the complainant in his complaint. The learned Magistrate has with respect not applied his mind at all to these important considerations before he passed the impugned order. It appears that he has not even considered what was the basic prayer of the complainant in his complaint. He has not considered whether it was necessary and desirable first to direct proper investigation into the matter in order to have material on record to ascertain whether there is a prima facie case against the accused for the charges leveled in the complaint. The process is issued under sec. 204 of the Criminal Procedure Code which requires that there should be in the opinion of a Magistrate taking cognizance of an offence sufficient ground for proceeding and sec. 202 of the Criminal Procedure Code has deliberately and advisedly been introduced to enable the Magistrate if he thinks fit to postpone the issue of process against the accused on receiving the complaint of an offence of which he is authorised to the cognizance and either inquire the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks proper for the purpose of deciding whether or not there is sufficient ground for proceeding. Mr. Joshipura submitted that what the Magistrate was required to do before issuing the process was only to form an opinion whether there is sufficient ground for proceeding and that the word opinion suggests that he was not to decide the matter beyond what appeared to be the prima facie case. In my opinion the word opinion makes no difference whatever and what is required of a Magistrate is that he should reasonably and objectively consider whether on the basis of the complaint and the evidence produced before him at that stage is disclosed sufficient ground for proceeding in the matter. The issuance of the process is thus not a mechanical matter but the Magistrate must bestow upon the case before him deliberate and thoughtful consideration whether it discloses sufficient ground for proceeding. Mr. Joshipura referred me to the case of K. C. SONREXA V. STATE OF UTTAR PRADESH AND OTHERS 1963 CRI. LAW JOURNAL (AIR 1963 ALLAHABAD 33) relying upon the following passage therein:"sec. Mr. Joshipura referred me to the case of K. C. SONREXA V. STATE OF UTTAR PRADESH AND OTHERS 1963 CRI. LAW JOURNAL (AIR 1963 ALLAHABAD 33) relying upon the following passage therein:"sec. 561-A is not an instrument handed over to accused persons to short circuit a prosecution and bring about its sudden death whenever their counsel feel that the prosecution is not likely to succeed. The High Court should normally refrain from giving a premature decision in a case whose picture is extremely complete and hazy as the evidence has not been produced and there issues involved whether factual or legal cannot be seen in their true perspective. " I agree with Mr. Joshipura that the prosecution should not be put to an abrupt end but that does not at the same time mean that the process should have been straightway issued against the accused. This is a proper matter wherein the Magistrate should have paused to give direction for investigation so that he could satisfy himself whether there was sufficient material before him to direct the issuance of the process. ( 28 ) ). To the same effect Mr. Joshipura cited the case of MANGAT RAM V. BABU RAM AIR 1969 JAMMU AND KASHMIR 132 It is observed there in as under:"in the instant case the proceedings are still at an initial stage and it is difficult to say at this stage that the prosecution has been launched to harass the petitioner or that the ingredients of the offence are made out. " But in the same ruling the learned Judge has quoted from the case of R. P. KAPUR V. STATE OF PUNJAB (SUPRA) and has conclusion on the facts of the case before him that it was not a case wherein extra ordinary powers of the High Court to quash the proceedings could be exercised. ( 29 ) ). Mr. Joshipura then referred me to an application filed by him under sec. 91 of the Criminal Procedure Code 1973 By that application the production of several documents are sought from the custody of the accused. Mr. Joshipura submitted that if these documents are brought on record they would clearly go to show that the charges which are made in the complaint are true and properly based. There are two objections to this document of Mr. Joshipura. In the first place this application under sec. Mr. Joshipura submitted that if these documents are brought on record they would clearly go to show that the charges which are made in the complaint are true and properly based. There are two objections to this document of Mr. Joshipura. In the first place this application under sec. 91 of the Criminal Procedure Code is filed after the impugned order was passed by the learned Magistrate. In order therefore to decide whether the impugned order conclusive have been passed at the stage at which it was passed this subsequent application cannot be taken into account. Secondly it would have to be decided in relation to the documents the production of which is sought under sec. 91 of the Criminal Procedure Code whether their production could be directed in view of the decision in STATE OF GUJARAT V. SHYAMLAL MOHANLAL CHOKSI AIR 1965 SUPREME COURT 1251 that the sec. (old sec. 94 of the Criminal Procedure Code to which the present application corresponds) does not apply to the accused. ( 30 ) ). For the reasons stated above I am clearly of the view that this application must succeed. The impugned order of issuance of the summons under sec. 5 (1) (b) and (c) of the said Act passed by the learned Metropolitan Magistrate dated 1-9-1982 is hereby quashed and set aside. However I may observe that the final order in this Misc. Criminal Application shall not have the effect of dismissal of the complaint but the learned Metropolitan Magistrate shall proceed with this complaint according to law from the stage at which it is registered ( 31 ) ). Rule is according made absolute. .