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1986 DIGILAW 165 (MAD)

Mohammed All (A-1) v. N. A. S. Ansari

1986-03-19

DAVID ANNOUSSAMY

body1986
Order: This is a petition underS.482 of the Code of Criminal Procedure praying this court to quash the proceedings in C.C.No.576 of 1986 on the file of the Judicial First Class Magistrate, Chidambaram. The petitioners state that they are respectively the secretary and members of the Islamic Educational Society and that they are running me “Women Madharsha School” in a building at Chidambaram. That building was constructed by them in the year 1983 on a land belonging to the Pallivasal and which they have obtained on lease. The petitioner shave filed on 6-7-1986 alleging mat on that day the respondent broke open the shops which were on me ground floor of the building erected by them and removed all the articles belonging to the Society. The Police has registered a case under Order No. 607 of 1985, enquired into the matter and reported on the same day that the matter was of a civil nature and that no prosecution could be launched on the basis of the Complaint filed by the petitioners. 2. Thereupon on 16-9-1986 the respondent has filed a private Complaint before the Judicial First Class Magistrate, Chidambaram, against the petitioners for an offence punishable underS.500, I.P.C. The Magistrate has taken the Complaint on file, has recorded the sworn statement of the Complainant on 16th September, 1986, and ordered issue of summons to the accused namely, the petitioners herein, who appeared on 4-10-1986. On 4-10-1986 all the accused were not present. The case was adjourned to 17-10-1986 for appearance of the other accused. On 17-10-1985 the case was adjourned for examining the accused about the alleged offence. On 17-10-1985 the case was adjourned for examining the accused about the alleged offence. On 18-10-1986 though a formal charge was not framed, the accused were examined and were asked whether they pleaded guilty or not. At this stage, the petitioners have moved this court for calling for the records of the case and quashing the proceedings. 3. Learned counsel for the petitioners says that there was no material before the Magistrate for issuing summons to the accused and to ask them whether they pleaded guilty or they have nay defence to make. At this stage, the petitioners have moved this court for calling for the records of the case and quashing the proceedings. 3. Learned counsel for the petitioners says that there was no material before the Magistrate for issuing summons to the accused and to ask them whether they pleaded guilty or they have nay defence to make. He more particularly contends that the fact of filing a report to the police against the respondent will not constitute prima facie an offence underS.499 of the Indian Penal Code, since any citizen is entitled to Complain before police about any offence which he bona fide thinks has been committed by the other party. In support of his stand, the learned counsel relied on two decisions (1) in K.P.S. Ponpandian and others v. C. Chinasamy K.P.S. Ponpandian and others v. C. Chinasamy 1984 T.L.N.J. 436 and (2) in Ayyavu Konar v. Chelliah Ayyavu Konar v. Chelliah 1984 L.W.Crl. 115. 4. Learned counsel for the respondent on his side contended that before knowing whether there is an offence underS.500 of the Indian Penal Code or not, one has to find out whether the Complainants (petitioner herein) have filed their Complaint to the police in good faith and that the finding on that state of mind of the petitioners in filing the police Complaint could be discovered only in the course of trial. He further stated that at the time of issue of process to the accused, the court need not enter into detailed discussions of the merits and demerits of the case and that the magistrate is merely concerned with the allegations made in the Complaint or the evidence let in support of the same and that it will be in support of the same and that it will be enough if he is prima facie satisfied whether there are sufficient grounds for proceeding against the accused. He relied on for this purpose on the decision of the Supreme Court in Smt. Nagawwa v. S. Konjalgi Smt. Nagawwa v. S. Konjalgi 1976 MLJ. (Crl.) 593. In the present case, it has to be noted that the Magistrate has gone a step further than merely issuing process. He has called upon the other party, the accused, and asked them whether they pleaded guilty or they had any defence to make. (Crl.) 593. In the present case, it has to be noted that the Magistrate has gone a step further than merely issuing process. He has called upon the other party, the accused, and asked them whether they pleaded guilty or they had any defence to make. In other words, the accused have been charged, though no formal charge as framed since this was a summons case. In warrant case, the Magistrate would take cognizance underS.200 of the Code of Criminal Procedure and issue process’ underS.204 of the Code of Criminal Procedure. The Magistrate has got underS.244 of the Code of Criminal Procedure the possibility of hearing practically the totality of the prosecution witnesses before deciding whether a charge should be framed or whether the accused should be discharged. In summons case, the Magistrate will have to act, only on the materials which he has recorded underS.200 of the Code of Criminal Procedure. Therefore, that material should be sufficient for the magistrate to proceed further and examine the accused underS.251 of the Code of Criminal Procedure. In the present case, what is available is only the Complaint and the sworn statement since the Complaint has not chosen to bring with him witnesses as it is permitted at the stage underS.200 of the Code of Criminal Procedure. In the Complaint, two sets of facts are put forth. One is that the accused, petitioners herein, have been telling in the town to everyone that the Complainant the respondent, herein, had broken open the shops and had stolen away the articles found therein. This is too vague a statement for taking action. The Complainant should have disclosed at least the names of a few persons to whom such piece of information would have been given by the accused. That essential detail was not even furnished by Complainant in his sworn statement. He remained as vague as the Complaint when he got himself examined. Therefore, there was no possibility of charging the accused on the basis of such statement. In fact the trial court also in the charge as put forth to the accused underS.251 of the Code of Criminal Procedure has not taken into consideration this set of facts. Another set of facts is that the Complainant has filed a Complaint to the same effect before the police officer. In fact the trial court also in the charge as put forth to the accused underS.251 of the Code of Criminal Procedure has not taken into consideration this set of facts. Another set of facts is that the Complainant has filed a Complaint to the same effect before the police officer. When a person goes to the police station to file a Complaint against another person, he assumes a big responsibility and takes a risk. His intention is not then to injure the reputation of the person against whom the Complaint is filed. His intention is to see that the other person is prosecuted. If any Complaint is filed with intent to cause the public servant to use his lawful power to injure another person or if any false charge of offence with intent to injure is filed, the concerned person can Complain of offence underS.182 or 211, Indian Penal Code respectively. In this case, the Complainant has not chosen to do so. The Complainant knowing well that hurdles are existing in prosecuting the party under the above sections has attempted to circumvent the legal hurdles in filing a petition underS.500, Indian Penal Code. Therefore, on the face of it there is no intention to harm the reputation. When the law has made provision for any false Complaint to lawful authority, this Complaint before the Magistrate for offence underS.500 will not lie. It is how in the cases referred to above, this court has decided. The decision relied on by the learned counsel for the respondent has no application to the facts of the case, since the case has gone beyond the stage of filing the Complaint and issuing summons. As it has been pointed out earlier, the charge has been framed as it should be in a summons case. For the above reasons, the proceeding pending before the magistrate is quashed. B.S. ----- Petition allowed.