Magistrate’s Refusal to Issue Process Upheld due to Material Inconsistencies and Lack of Prima Facie Satisfaction

The case arises from the death of the petitioner’s son, Md. Sharif, during a border incident on June 22, 2019.

Two conflicting FIRs were filed: one by the BSF alleging they fired in self-defense during a cattle-smuggling attempt, and another by the deceased’s family alleging BSF personnel forcibly took the deceased from his home and killed him.

Following two police investigations that resulted in final reports supporting the BSF's version, the petitioner filed a protest petition.

The Magistrate treated this as a complaint and examined eight witnesses under Section 200 Cr.P.C.

On January 18, 2024, the Magistrate refused to issue process against the accused (respondent Nos. 2 to 4) due to a lack of prima facie evidence and identification issues.

The petitioner challenged this dismissal via revision.

1. Whether the Magistrate exceeded their jurisdiction by deeply scrutinizing the evidence at the summoning stage instead of merely seeking prima facie satisfaction.

2. Whether there were sufficient grounds and consistent evidence to issue process against the accused under Sections 202 and 203 of the Cr.P.C.

The court applied the standards for taking cognizance and summoning under Sections 200, 202, and 203 of the Cr.P.C.

Establishing that a Magistrate must only find a prima facie case without evaluating the merits for conviction.

Dictates that a protest petition can be treated as a complaint only if it satisfies the essential requirements of a complaint.

Noting the mandatory nature of examining all witnesses in cases triable by the Court of Session.

The High Court observed that the petitioner’s protest petition was technically deficient, lacking a witness list and specific details of the accused.

Critically, in a case involving Section 302 IPC, the petitioner failed to produce medical evidence or the autopsy surgeon to prove homicidal death.

Upon reviewing the statements of the eight witnesses, the Court found glaring contradictions regarding the identities of those who allegedly abducted the deceased and the timing of the incident.

The Court noted that the family's testimony conflicted with their own prior written objections and across different witnesses.

Furthermore, the existence of two previous police investigations and recorded injuries to BSF personnel supported the version of a high-risk border encounter rather than the petitioner's narrative.

The High Court found no illegality or impropriety in the Magistrate's order and dismissed the criminal revision petition, upholding the refusal to proceed against the respondents.