Full Judgment Text
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No.381 of 2018
(Mohd Hanif s/o Abdul Rashid and others .vs. State of Maharashtra through
Police Station Officer, P.S. Lakadganj, Nagpur and another)
-------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Coram,
appearances, Court's orders or directions Court's or Judge's orders.
and Registrar's orders
Mr. Subodh Dharmadhikari, Senior Advocate with Mr. U.P. Dable,
Advocate for Petitioners.
Ms. Shamsi Haider, Additional Public Prosecutor for Respondent
No.1.
Mr. R.H. Rawlani, Advocate for Respondent No.2.
...
Coram : Manish Pitale, J.
Date of Reserving order : June 28, 2018.
Date of Pronouncing Order : July 05, 2018.
The petitioners herein have filed this writ
petition praying for quashing and setting aside
order dated 27.06.2017 passed by the Court of
Judicial Magistrate First Class, Nagpur (Magistrate)
taking cognizance of offences under Sections 143,
147, 148, 149 and 307 of the Indian Penal Code
(IPC) and sections 4 and 25 of the Arms Act,1959.
The petitioners have also prayed for setting aside
judgment and order dated 21.02.2018 passed by
the Sessions Court, Nagpur, whereby the criminal
revision application filed by them challenging the
said order of the Magistrate was dismissed by the
Sessions Court.
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2. The Magistrate took cognizance for the
said offences and issued summons to the
petitioners pertaining to an incident that took place
on 01.06.2015. The petitioners herein have claimed
that respondent no.2 and others came to the house
of petitioner no.3 Abdul Mujeeb and assaulted him
and his family with deadly weapons. On this basis,
Crime No. 213 of 2015 was registered at Lakadganj
Police Station, Nagpur. The respondent no.2 also
lodged a complaint in respect of the same incident
against the petitioners, which came to be registered
as Crime No. 214 of 2015 in the said Police Station.
3. On the basis of the said complaint and
registration of first information report (FIR) against
the petitioners, investigation was undertaken by the
Police. Upon completion of investigation in the
aforesaid Crime No. 214 of 2015 against the
petitioners, the investigating officer found that
although FIR was registered for offences under
Sections 307, 343, 147, 148 and 149 of the IPC and
Sections 4 and 25 of the Arms Act, an offence only
under Section 334 of the IPC was made out i.e.
voluntarily causing hurt on provocation. This is a
non-cognizable and bailable offence triable by the
Magistrate.
4. When the said final report was submitted
by the investigating officer for offence punishable
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under Section 334 of the IPC, the Magistrate took
into consideration the charge sheet and the entire
aforesaid report of the investigating officer. Upon
hearing the A.P.P. and the counsel for the informant,
the Magistrate disagreed with the report of the
investigating officer and found that prima facie
offences under Sections 143, 147, 148, 307 read
with 149 of the IPC and under Sections 4 and 25 of
the Arms Act were made out against the petitioners.
On this basis, by impugned order dated 27.06.2017,
the Magistrate took cognizance of the offences and
issued summons against the petitioners.
5. Aggrieved by the said order, the
petitioners filed Criminal Revision Application No.
252 of 2017 before the Sessions Court, Nagpur.
Before the Sessions Court, it was submitted on
behalf of the petitioners that the Magistrate could
not have differed from the opinion of the
investigating officer in the final report and that,
therefore, the order dated 27.06.2017 issued by the
Magistrate was unsustainable. It was also
submitted that there was no application of mind by
the Magistrate while passing the said order dated
27.06.2017, due to which it deserved to be set
aside.
6. By the impugned judgment and order
dated 21.02.2018, the Sessions Court, Nagpur
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dismissed the revision application of the petitioners
and confirmed the order of the Magistrate. Sessions
Court found that as per settled law, the Magistrate
was not bound by the final report submitted by the
Police and that there was power in the Magistrate to
independently apply his mind to the material on
record to pass appropriate order. The Sessions
Court also analysed the manner in which the
Magistrate had issued summons and it found that
the material on record had been taken into
consideration while passing the order. On this basis,
the revision application of the petitioners was
dismissed. Aggrieved by the same, the petitioners
have filed this writ petition.
7. Mr. Subodh Dharmadhikari, learned senior
counsel appearing on behalf of the petitioners,
submitted that although there could not be any
quarrel with the proposition that the Magistrate was
not bound with the final report submitted by the
Police upon completion of investigation, when the
Magistrate differed from the opinion in the final
report, he was expected to apply his mind to
material on record and to take into consideration
the entire material, including statements of all
witnesses before issuing summons for offences
other than the offence that was recommended in
the final report. It was submitted that in the present
case, the Magistrate took into consideration
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statement of only three witnesses, who were
already accused in the cross case and that the
statements of two independent witnesses were not
taken into account by the Magistrate while passing
the impugned order dated 27.06.2017, issuing
summons against the petitioners. It was submitted
that the Sessions Court also did not refer to the
relevant material on record and there was no
application of mind by the Sessions Court while
deciding the revision application. Reliance was
placed on judgment of the Hon’ble Supreme Court
in the case of Nupur Talwar .vs. C.B.I. – (2012)
12 Supreme Court Cases 188 .
8. Per contra Mr. R.H. Rawalani, learned
counsel appearing on behalf of respondent no.2
(original complainant), submitted that the
Magistrate was only expected to examine prima
facie the truth or falsehood of the allegations and
that in the present case a perusal of the order dated
27.06.2017 passed by the Magistrate demonstrated
that there had been application of mind on the part
of the Magistrate while issuing summons to the
petitioners. It was submitted that no error can be
attributed to the Sessions Court when it dismissed
the revision application of the petitioners because
as per settled law the higher courts are not
supposed to substitute their own discretion for that
of the Magistrate when the Magistrate has found
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sufficient material on record to differ with the
opinion of the investigating officer by directing
issuance of summons against the accused.
Reliance was placed on judgment of the Hon’ble
Supreme Court in the case of Fiona
Shrikhande .vs. State of Maharashtra –
(2013) 14 Supreme Court Cases 44.
9. Heard counsel for the parties. On behalf
of the petitioners, learned senior counsel fairly
conceded that it could not be argued that the
Magistrate was bound by the opinion of the
investigating officer in the final report submitted
with the charge sheet. The main objection raised
against the impugned orders on behalf of the
petitioners was that the Magistrate had issued
summons against the petitioners for offence under
Section 307 of the IPC, as against offence under
Section 334 of the IPC recommended in the final
report by the investigating officer, without proper
application of mind to the entirety of material on
record. It was submitted that only selective
material in the form of statements of witnesses who
were accused in the cross case were taken into
consideration, while statements of independent
witnesses were not at all considered while issuing
summons against the petitioners for offence under
Section 307 of the IPC. According to the learned
senior counsel, the Magistrate had issued summons
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in a casual manner and this was impermissible,
particularly when the Magistrate in the present case
differed with the opinion of the investigating officer,
while exercising jurisdiction under Section 190 of
the Code of Criminal Procedure.
10. A perusal of the order dated 27.06.2017
passed by the Magistrate while issuing summons
shows that the Magistrate perused the final report
submitted by the investigating officer and the
statements of the witnesses and it was found by
him that the Police at the threshold could not have
concluded that offence only under Section 334 of
the IPC was made out. The Magistrate then referred
to the manner in which the incident had occurred
and found that a prima facie case under Section 307
of the IPC was made out against the petitioners.
The relevant portion of the order of the Magistrate
reads as follows:-
“4. Having a leaf into the report and
the statement of the witnesses,
particularly Juber Ahmad, Rehan
Ahmad, Abdul Sattar, recorded u/s
161, Cr.P.C. the prima facie offence
u/s 143, 147,148, 307 r/w 149, IPC
and u/s 4/25, Arms Act has been
made out. At the threshhold stage
the police could not have concluded
regarding the aspect of provocation,
which is an element to be dealt in the
course of evidence and trial. So also,
the police could not have made their
opinion in view of the cross report
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filed by the accused against the
informant and others. Both the
reports and cases are different and
the material of one case could not
have been considered in an another
case. The report and statements
clearly spell out that victim has been
wounded on his head with a sword
and so also informant saved himself
from the ghastly attack of sword on
his neck. It could also be read from
the report that accused were armed
with arms and one of them, namely
Abdul Hanif, accused number 12
exhorted other accused to kill the
informant and others. The vital
aspect for an offence u/s 307, IPC is
the intention and not the nature of
injury. Perhaps, there may not be any
injury still having intention to kill
would make out a case u/s 307, IPC.
Viewed from this angle, the opinion of
medical officer cannot be given much
weight at this juncture of the case.
5. In evaluation I am of the
view that prima facie a case u/s 143,
147, 148, 307 r/w 149, IPC and u/s
4/25, Arms Act has been made out
qua accused. Hence , accused needs
to be summoned to answer the
charge and face the trial for the
offences u/s 143, 147, 148, 307 r/w
149, IPC and u/s 4/25, Arms Act.
Accordingly, issue summons to
accused number 1 to 12 to appear
and furnish bail of Rs.15000/- each
for an offence u/s 143, 147, 148, 307
r/w 149, IPC and u/s 4/25, Arms Act.
Summons shall be returnable on
27.07.2017. Administrative office of
this Court is directed to register this
case in the nature of warrant trial.”
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11. In the judgment in the case of Nupur
Talwar .vs. C.B.I. (supra), the Hon’ble Supreme
Court has held as follows:-
“15. Now the question is: what
should be the extent of judicial
interference by this Court in
connection with an order of taking
cognizance by a Magistrate while
exercising his jurisdiction under
Section 190 of the Code?
16. Section 190 of the Code lays
down the conditions which are
requisite for the initiation of a criminal
proceeding. At this stage the
Magistrate is required to exercise
sound judicial discretion and apply his
mind to the facts and materials before
him. In doing so, the Magistrate is not
bound by the opinion of the
investigating officer and he is
competent to exercise his discretion
irrespective of the views expressed
by the Police in its report and may
prima facie find out whether an
offence has been made out or not.
19. The correctness of the order
whereby cognizance of the offence
has been taken by the Magistrate,
unless it is perverse or based on no
material, should be sparingly
interfered with. In the instant case,
anyone reading the order of the
Magistrate taking cognizance, will
come to the conclusion that there has
been due application of mind by the
Magistrate and it is a well reasoned
order. The order of the High Court
passed on a Criminal Revision under
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Sections 397 and 401 of the code (not
under Section 482) at the instance of
Dr. Mrs. Nupur Talwar would also show
that there has been a proper
application of mind and a detailed
speaking order has been passed.”
12. The Sessions Court while dismissing the
revision application of the petitioners also applied
its mind and found that the Magistrate was satisfied
on the basis of material on record before issuing
summons against the petitioners under Section 307
and other provisions of the IPC. In the case of
Fiona Shrikhande .vs. State of Maharashtra
(supra), the Hon’ble Supreme Court has held as
follows:-
“11. We are, in this case, concerned
only with the question as to whether,
on a reading of the complaint, a prima
facie case has been made out or not
to issue process by the Magistrate.
The law as regards issuance of
process in criminal cases is well
settled. At the complaint stage, the
Magistrate is merely concerned with
the allegations made out in the
complaint and has only to prima facie
satisfy whether there are sufficient
grounds to proceed against the
accused and it is not the province of
the Magistrate to enquire into a
detailed discussion on the merits or
demerits of the case. The scope of
enquiry under Section 202 is
extremely limited in the sense that
the Magistrate, at this stage, is
expected to examine prima facie the
truth or falsehood of the allegations
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made in the complaint. The
Magistrate is not expected to embark
upon a detailed discussion of the
merits or demerits of the case, but
only consider the inherent
probabilities apparent on the
statement made in the complaint. In
Nagawwa v. Veeranna Shivalingappa
Konjalgi , this Court held that once the
Magistrate has exercised his
discretion in forming an opinion that
there is ground for proceeding, it is
not for the Higher Courts to substitute
its own discretion for that of the
Magistrate. The Magistrate has to
decide the question purely from the
point of view of the complaint,
without at all adverting to any
defence that the accused may have.”
13. Thus, as per the aforesaid position of law,
the higher courts are not supposed to substitute
their own discretion for that of the Magistrate while
examining whether the Magistrate was justified in
issuing summons against the accused for specific
offences. In the present case, a perusal of the
above quoted portion of the order of the Magistrate
shows that the Magistrate has considered the
material on record and upon applying his mind to
the same, he has exercised his discretion in issuing
summons to the petitioners under Section 307 and
other provisions of the IPC, by differing with the
opinion submitted before him in the final report by
the investigating officer. The Magistrate has
recorded that he has perused the statements of the
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witnesses. Therefore, there is no substance in the
contention raised on behalf of the petitioners that
statements of independent witnesses have been
ignored. There is no doubt about the position that if
the material on record warrants, the Magistrate is
empowered to take a different view from the final
report submitted before him and to issue summons
to the accused. There is nothing in the present case
to show that the Magistrate has issued summons
against the petitioners in a perverse manner or that
the order issued by him is based on no material.
The stage of issuance of summons by the
Magistrate necessarily involves pirma facie opinion
and exercise of discretion by the Magistrate. The
higher courts cannot sit in appeal over the same as
if an order on the issue of discharge or challenge to
conviction is involved. The standard of examination
of question concerning issuance of summons by the
Magistrate cannot be raised to the level as if the
conviction or acquittal of the accused is involved.
14. In the present case, there is nothing to
show that the order dated 27.06.2017 issued by the
Magistrate was of such a nature that it deserved to
be interfered with either by the Sessions Court
exercising revisional jurisdiction or this Court
exercising writ jurisdiction. Neither the Sessions
Court nor this Court can substitute its own
discretion for that of the Magistrate, particularly
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when it has not been demonstrated on record as to
how the exercise of jurisdiction by the Magistrate in
the present case suffers from any perversity.
15. Therefore, there is no merit in the grounds
of challenge raised in the present writ petition while
challenging the impugned orders passed by the
Magistrate and the Sessions Court. Accordingly, the
writ petition is dismissed.
JUDGE
halwai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No.381 of 2018
(Mohd Hanif s/o Abdul Rashid and others .vs. State of Maharashtra through
Police Station Officer, P.S. Lakadganj, Nagpur and another)
-------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Coram,
appearances, Court's orders or directions Court's or Judge's orders.
and Registrar's orders
Mr. Subodh Dharmadhikari, Senior Advocate with Mr. U.P. Dable,
Advocate for Petitioners.
Ms. Shamsi Haider, Additional Public Prosecutor for Respondent
No.1.
Mr. R.H. Rawlani, Advocate for Respondent No.2.
...
Coram : Manish Pitale, J.
Date of Reserving order : June 28, 2018.
Date of Pronouncing Order : July 05, 2018.
The petitioners herein have filed this writ
petition praying for quashing and setting aside
order dated 27.06.2017 passed by the Court of
Judicial Magistrate First Class, Nagpur (Magistrate)
taking cognizance of offences under Sections 143,
147, 148, 149 and 307 of the Indian Penal Code
(IPC) and sections 4 and 25 of the Arms Act,1959.
The petitioners have also prayed for setting aside
judgment and order dated 21.02.2018 passed by
the Sessions Court, Nagpur, whereby the criminal
revision application filed by them challenging the
said order of the Magistrate was dismissed by the
Sessions Court.
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2. The Magistrate took cognizance for the
said offences and issued summons to the
petitioners pertaining to an incident that took place
on 01.06.2015. The petitioners herein have claimed
that respondent no.2 and others came to the house
of petitioner no.3 Abdul Mujeeb and assaulted him
and his family with deadly weapons. On this basis,
Crime No. 213 of 2015 was registered at Lakadganj
Police Station, Nagpur. The respondent no.2 also
lodged a complaint in respect of the same incident
against the petitioners, which came to be registered
as Crime No. 214 of 2015 in the said Police Station.
3. On the basis of the said complaint and
registration of first information report (FIR) against
the petitioners, investigation was undertaken by the
Police. Upon completion of investigation in the
aforesaid Crime No. 214 of 2015 against the
petitioners, the investigating officer found that
although FIR was registered for offences under
Sections 307, 343, 147, 148 and 149 of the IPC and
Sections 4 and 25 of the Arms Act, an offence only
under Section 334 of the IPC was made out i.e.
voluntarily causing hurt on provocation. This is a
non-cognizable and bailable offence triable by the
Magistrate.
4. When the said final report was submitted
by the investigating officer for offence punishable
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under Section 334 of the IPC, the Magistrate took
into consideration the charge sheet and the entire
aforesaid report of the investigating officer. Upon
hearing the A.P.P. and the counsel for the informant,
the Magistrate disagreed with the report of the
investigating officer and found that prima facie
offences under Sections 143, 147, 148, 307 read
with 149 of the IPC and under Sections 4 and 25 of
the Arms Act were made out against the petitioners.
On this basis, by impugned order dated 27.06.2017,
the Magistrate took cognizance of the offences and
issued summons against the petitioners.
5. Aggrieved by the said order, the
petitioners filed Criminal Revision Application No.
252 of 2017 before the Sessions Court, Nagpur.
Before the Sessions Court, it was submitted on
behalf of the petitioners that the Magistrate could
not have differed from the opinion of the
investigating officer in the final report and that,
therefore, the order dated 27.06.2017 issued by the
Magistrate was unsustainable. It was also
submitted that there was no application of mind by
the Magistrate while passing the said order dated
27.06.2017, due to which it deserved to be set
aside.
6. By the impugned judgment and order
dated 21.02.2018, the Sessions Court, Nagpur
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dismissed the revision application of the petitioners
and confirmed the order of the Magistrate. Sessions
Court found that as per settled law, the Magistrate
was not bound by the final report submitted by the
Police and that there was power in the Magistrate to
independently apply his mind to the material on
record to pass appropriate order. The Sessions
Court also analysed the manner in which the
Magistrate had issued summons and it found that
the material on record had been taken into
consideration while passing the order. On this basis,
the revision application of the petitioners was
dismissed. Aggrieved by the same, the petitioners
have filed this writ petition.
7. Mr. Subodh Dharmadhikari, learned senior
counsel appearing on behalf of the petitioners,
submitted that although there could not be any
quarrel with the proposition that the Magistrate was
not bound with the final report submitted by the
Police upon completion of investigation, when the
Magistrate differed from the opinion in the final
report, he was expected to apply his mind to
material on record and to take into consideration
the entire material, including statements of all
witnesses before issuing summons for offences
other than the offence that was recommended in
the final report. It was submitted that in the present
case, the Magistrate took into consideration
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statement of only three witnesses, who were
already accused in the cross case and that the
statements of two independent witnesses were not
taken into account by the Magistrate while passing
the impugned order dated 27.06.2017, issuing
summons against the petitioners. It was submitted
that the Sessions Court also did not refer to the
relevant material on record and there was no
application of mind by the Sessions Court while
deciding the revision application. Reliance was
placed on judgment of the Hon’ble Supreme Court
in the case of Nupur Talwar .vs. C.B.I. – (2012)
12 Supreme Court Cases 188 .
8. Per contra Mr. R.H. Rawalani, learned
counsel appearing on behalf of respondent no.2
(original complainant), submitted that the
Magistrate was only expected to examine prima
facie the truth or falsehood of the allegations and
that in the present case a perusal of the order dated
27.06.2017 passed by the Magistrate demonstrated
that there had been application of mind on the part
of the Magistrate while issuing summons to the
petitioners. It was submitted that no error can be
attributed to the Sessions Court when it dismissed
the revision application of the petitioners because
as per settled law the higher courts are not
supposed to substitute their own discretion for that
of the Magistrate when the Magistrate has found
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sufficient material on record to differ with the
opinion of the investigating officer by directing
issuance of summons against the accused.
Reliance was placed on judgment of the Hon’ble
Supreme Court in the case of Fiona
Shrikhande .vs. State of Maharashtra –
(2013) 14 Supreme Court Cases 44.
9. Heard counsel for the parties. On behalf
of the petitioners, learned senior counsel fairly
conceded that it could not be argued that the
Magistrate was bound by the opinion of the
investigating officer in the final report submitted
with the charge sheet. The main objection raised
against the impugned orders on behalf of the
petitioners was that the Magistrate had issued
summons against the petitioners for offence under
Section 307 of the IPC, as against offence under
Section 334 of the IPC recommended in the final
report by the investigating officer, without proper
application of mind to the entirety of material on
record. It was submitted that only selective
material in the form of statements of witnesses who
were accused in the cross case were taken into
consideration, while statements of independent
witnesses were not at all considered while issuing
summons against the petitioners for offence under
Section 307 of the IPC. According to the learned
senior counsel, the Magistrate had issued summons
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in a casual manner and this was impermissible,
particularly when the Magistrate in the present case
differed with the opinion of the investigating officer,
while exercising jurisdiction under Section 190 of
the Code of Criminal Procedure.
10. A perusal of the order dated 27.06.2017
passed by the Magistrate while issuing summons
shows that the Magistrate perused the final report
submitted by the investigating officer and the
statements of the witnesses and it was found by
him that the Police at the threshold could not have
concluded that offence only under Section 334 of
the IPC was made out. The Magistrate then referred
to the manner in which the incident had occurred
and found that a prima facie case under Section 307
of the IPC was made out against the petitioners.
The relevant portion of the order of the Magistrate
reads as follows:-
“4. Having a leaf into the report and
the statement of the witnesses,
particularly Juber Ahmad, Rehan
Ahmad, Abdul Sattar, recorded u/s
161, Cr.P.C. the prima facie offence
u/s 143, 147,148, 307 r/w 149, IPC
and u/s 4/25, Arms Act has been
made out. At the threshhold stage
the police could not have concluded
regarding the aspect of provocation,
which is an element to be dealt in the
course of evidence and trial. So also,
the police could not have made their
opinion in view of the cross report
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filed by the accused against the
informant and others. Both the
reports and cases are different and
the material of one case could not
have been considered in an another
case. The report and statements
clearly spell out that victim has been
wounded on his head with a sword
and so also informant saved himself
from the ghastly attack of sword on
his neck. It could also be read from
the report that accused were armed
with arms and one of them, namely
Abdul Hanif, accused number 12
exhorted other accused to kill the
informant and others. The vital
aspect for an offence u/s 307, IPC is
the intention and not the nature of
injury. Perhaps, there may not be any
injury still having intention to kill
would make out a case u/s 307, IPC.
Viewed from this angle, the opinion of
medical officer cannot be given much
weight at this juncture of the case.
5. In evaluation I am of the
view that prima facie a case u/s 143,
147, 148, 307 r/w 149, IPC and u/s
4/25, Arms Act has been made out
qua accused. Hence , accused needs
to be summoned to answer the
charge and face the trial for the
offences u/s 143, 147, 148, 307 r/w
149, IPC and u/s 4/25, Arms Act.
Accordingly, issue summons to
accused number 1 to 12 to appear
and furnish bail of Rs.15000/- each
for an offence u/s 143, 147, 148, 307
r/w 149, IPC and u/s 4/25, Arms Act.
Summons shall be returnable on
27.07.2017. Administrative office of
this Court is directed to register this
case in the nature of warrant trial.”
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11. In the judgment in the case of Nupur
Talwar .vs. C.B.I. (supra), the Hon’ble Supreme
Court has held as follows:-
“15. Now the question is: what
should be the extent of judicial
interference by this Court in
connection with an order of taking
cognizance by a Magistrate while
exercising his jurisdiction under
Section 190 of the Code?
16. Section 190 of the Code lays
down the conditions which are
requisite for the initiation of a criminal
proceeding. At this stage the
Magistrate is required to exercise
sound judicial discretion and apply his
mind to the facts and materials before
him. In doing so, the Magistrate is not
bound by the opinion of the
investigating officer and he is
competent to exercise his discretion
irrespective of the views expressed
by the Police in its report and may
prima facie find out whether an
offence has been made out or not.
19. The correctness of the order
whereby cognizance of the offence
has been taken by the Magistrate,
unless it is perverse or based on no
material, should be sparingly
interfered with. In the instant case,
anyone reading the order of the
Magistrate taking cognizance, will
come to the conclusion that there has
been due application of mind by the
Magistrate and it is a well reasoned
order. The order of the High Court
passed on a Criminal Revision under
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Sections 397 and 401 of the code (not
under Section 482) at the instance of
Dr. Mrs. Nupur Talwar would also show
that there has been a proper
application of mind and a detailed
speaking order has been passed.”
12. The Sessions Court while dismissing the
revision application of the petitioners also applied
its mind and found that the Magistrate was satisfied
on the basis of material on record before issuing
summons against the petitioners under Section 307
and other provisions of the IPC. In the case of
Fiona Shrikhande .vs. State of Maharashtra
(supra), the Hon’ble Supreme Court has held as
follows:-
“11. We are, in this case, concerned
only with the question as to whether,
on a reading of the complaint, a prima
facie case has been made out or not
to issue process by the Magistrate.
The law as regards issuance of
process in criminal cases is well
settled. At the complaint stage, the
Magistrate is merely concerned with
the allegations made out in the
complaint and has only to prima facie
satisfy whether there are sufficient
grounds to proceed against the
accused and it is not the province of
the Magistrate to enquire into a
detailed discussion on the merits or
demerits of the case. The scope of
enquiry under Section 202 is
extremely limited in the sense that
the Magistrate, at this stage, is
expected to examine prima facie the
truth or falsehood of the allegations
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made in the complaint. The
Magistrate is not expected to embark
upon a detailed discussion of the
merits or demerits of the case, but
only consider the inherent
probabilities apparent on the
statement made in the complaint. In
Nagawwa v. Veeranna Shivalingappa
Konjalgi , this Court held that once the
Magistrate has exercised his
discretion in forming an opinion that
there is ground for proceeding, it is
not for the Higher Courts to substitute
its own discretion for that of the
Magistrate. The Magistrate has to
decide the question purely from the
point of view of the complaint,
without at all adverting to any
defence that the accused may have.”
13. Thus, as per the aforesaid position of law,
the higher courts are not supposed to substitute
their own discretion for that of the Magistrate while
examining whether the Magistrate was justified in
issuing summons against the accused for specific
offences. In the present case, a perusal of the
above quoted portion of the order of the Magistrate
shows that the Magistrate has considered the
material on record and upon applying his mind to
the same, he has exercised his discretion in issuing
summons to the petitioners under Section 307 and
other provisions of the IPC, by differing with the
opinion submitted before him in the final report by
the investigating officer. The Magistrate has
recorded that he has perused the statements of the
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witnesses. Therefore, there is no substance in the
contention raised on behalf of the petitioners that
statements of independent witnesses have been
ignored. There is no doubt about the position that if
the material on record warrants, the Magistrate is
empowered to take a different view from the final
report submitted before him and to issue summons
to the accused. There is nothing in the present case
to show that the Magistrate has issued summons
against the petitioners in a perverse manner or that
the order issued by him is based on no material.
The stage of issuance of summons by the
Magistrate necessarily involves pirma facie opinion
and exercise of discretion by the Magistrate. The
higher courts cannot sit in appeal over the same as
if an order on the issue of discharge or challenge to
conviction is involved. The standard of examination
of question concerning issuance of summons by the
Magistrate cannot be raised to the level as if the
conviction or acquittal of the accused is involved.
14. In the present case, there is nothing to
show that the order dated 27.06.2017 issued by the
Magistrate was of such a nature that it deserved to
be interfered with either by the Sessions Court
exercising revisional jurisdiction or this Court
exercising writ jurisdiction. Neither the Sessions
Court nor this Court can substitute its own
discretion for that of the Magistrate, particularly
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when it has not been demonstrated on record as to
how the exercise of jurisdiction by the Magistrate in
the present case suffers from any perversity.
15. Therefore, there is no merit in the grounds
of challenge raised in the present writ petition while
challenging the impugned orders passed by the
Magistrate and the Sessions Court. Accordingly, the
writ petition is dismissed.
JUDGE
halwai
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