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2004 DIGILAW 227 (JK)

Tilak Raj Pandoh v. Jagan Nath

2004-08-02

S.K.GUPTA

body2004
1. This petition has been preferred under section 561-A Cr.P.C with a prayer to quash the orders dated 14.6.2003 and 24.12.2003 passed by the learned City Judge Judicial Magistrate, 1st Class, Jammu in a complaint titled Jagan Nath versus Tilak Raj Pandoh by virtue of which the learned Magistrate has directed an inquiry under section 202 Cr. P.C to be conducted by a Senior Police Officer and the Superintendent of Police City North, Jammu, was directed to conduct a detailed inquiry and, if need arises, he can seek assistance of the hand writing expert and also summon the original record. 2. Respondent, Jagan Nath, preferred a complaint before the learned City Magistrate, Jammu, in alleging that the accused had prepared forged documents and by using the same, he has obtained the decree against the complainant from the Civil Court. The appeal was preferred in raising the plea of forgery and fraud perpetuated by the accused, but the judgment and decree of the trial Court was upheld in the higher forums and in the Apex Court as well, having been passed on technical ground. It is further stated that the promissory notes manufactured by the accused were alleged to have been executed in April, 1989 indicating that the complainant has promised to pay sum of Rs.10,000/-. It is further pleaded that the documents were prepared by the accused and forged signatures of the complainant were affixed on promissory notes and succeeded in proving his claim on the basis of the said documents. 3. The Magistrate after recording the statement of the complainant, postponed the issuance of process and directed an inquiry to be conducted by a Sr. Police Officer under section 202 Cr. P.C to ascertain the fact as to whether the complainant has any valid base, calling for the issuance of the process to a person complained against. The inquiry was directed to be conducted by the Superintendent of Police, City North, Jammu under section 202 Cr. P.C, and he was asked to submit the report within a period of one month, vide order dated 14.6.2003. The inquiry was directed to be conducted by the Superintendent of Police, City North, Jammu under section 202 Cr. P.C, and he was asked to submit the report within a period of one month, vide order dated 14.6.2003. Since Investigating Officer has entrusted the investigation to Incharge Police Station City, the Magistrate again impressed upon the Superintendent of Police City North to conduct a detailed enquiry into the matter and he can also seek assistance of hand writing expert, if need arises, besides, summoning of the record, vide order dated 24.12.2003 of which the petitioner is aggrieved of, and became the subject-matter in this petition for quashment, in invoking inherent jurisdiction of this Court under section 561-A Cr.P.C. 4. It is admitted case of the petitioner that the process has yet not been issued against him by the Magistrate. Mr. Kuldip Raj Gupta, learned counsel appearing for the petitioner, further admitted that he had made an application before the Magistrate, seeking dismissal of the complaint on the ground that the complainant is debarred from filing a complaint in view of the provisions of section 195(1) (c) Cr. P. C. This application of the petitioner was also dismissed by the Magistrate, in holding that he has no locus standi, in proceedings under section 202 Cr. P.C as he can neither be heard nor can he ask for recalling of order under section 202 Cr. P.C. 5. It is pertinent to point out that postponement of the issue of process, after examining the complainant, attracts the provisions of section 202 Cr. P.C. This provision invites another check to prevent false and vexatious complaints being filed. Section 202 Cr. P.C in its plain language makes it clear that a Magistrate is not bound to issue process immediately on a complaint having been filed before it. Section 202 Cr. P.C gives him ample powers to postpone the issue of process when he has doubts about the truth of the complaint. Therefore, in that event, if he thinks fit, either to enquire into the case himself or direct an investigation by a Police Officer or such other person as the Magistrate thinks fit for the purpose of ascertaining whether or not there is sufficient ground for proceeding�. Therefore, in that event, if he thinks fit, either to enquire into the case himself or direct an investigation by a Police Officer or such other person as the Magistrate thinks fit for the purpose of ascertaining whether or not there is sufficient ground for proceeding�. It is, thus, open to the Magistrate, if he believes that there is truth in the complaint, to issue process straight way without calling for inquiry under this section. The issue of process is, therefore, a discretionary power. The spinal question which falls for determination is as to whether in proceedings under section 202 Cr. P .C, the accused has any locus standi and is entitled to be heard on the question whether process should be issued against him or not. It is significant to point out that the inquiry under section 202 Cr.P.C is not a trial. The very question for consideration in the inquiry is whether the accused should be called upon to face a trial and the very object of the section will defeat, if the person complained against is made to appear in an inquiry under this section. It is contrary to the very scheme of the Code to permit the opposite party to appear and argue that process should not be issued. The accused has no right to take part in the proceedings, and the Magistrate has also no jurisdiction to permit him to do so. The purpose of proceeding under section 202 Cr. P.C is only for the Magistrate to ascertain the allegations made in the complaint, whether true and sufficient for issuing the process against the accused; and on the receipt of the report of the inquiry, it is still within the discretion of the Court either to issue process against the accused in order to proceed against him or dismiss the complaint after recording reasons for so doing, and the accused has no right to be heard on the question of issuance of process against him under section 202 Cr. P.C. 6. The Apex Court, while dealing with a similar proposition in case reported as Smt. Nagawwa Vs Veeranna Shivalingappa, AIR 1976 SC 1947, held that in proceedings under section 202 Cr.P.C, the accused absolutely has no locus standi and is not entitled to be heard on the question whether process should be issued against him or not. 7. P.C. 6. The Apex Court, while dealing with a similar proposition in case reported as Smt. Nagawwa Vs Veeranna Shivalingappa, AIR 1976 SC 1947, held that in proceedings under section 202 Cr.P.C, the accused absolutely has no locus standi and is not entitled to be heard on the question whether process should be issued against him or not. 7. That apart, the inherent jurisdiction under section 561-A Cr.P.C. can be invoked only to prevent abuse of the process of the Court or to secure ends of justice. The petitioner having no locus standi, the inquiry ordered by the Magistrate can not be challenged in petition under section 561-A Cr.P.C. In the facts and circumstances of the case, petition is dismissed as not maintainable.