Abdul Samad Nagu vs Ab. Pehman Khanday and Another

Mufti Baha-Ud-Din Farooqi, Actg. C.J.

1.The trial magistrate has tried to weigh the evidence in golden scales. That is not the intendment of Section 204, Cr. P.C. Section 204, Cr. P.C.

enables a magistrate to take cognizance of an offence and issue process if ""there are sufficient grounds for proceedings"". The scope of the words

sufficient ground for proceedings"" is limited. These words suggest that even where there is a suspicion that the accused has committed an offence

that would be enough to entitle the magistrate to take cognizance and issue process against him. The allegation in the complaint was that the

complainant had entrusted to the accused some timber and fuel wood which he had refused to return and had even belaboured the complainant

when he demanded it back. The magistrate has entered into a detailed discussion of evidence and held that there is no case u/s 406, R. P. C, and

that the dispute in that regard is purely of civil nature. He has further held that the complainant has already lodged a report with the police

complaining of assault and as such he need not concern himself with this part of the case. On the principle set out above, the learned Magistrate

ought not to have gone so far as to appreciate and weigh the evidence in depth. On the other hand, he should have concerned himself with the

question whether, on the available material, it could be reasonably suspected that the accused had committed an offence u/s 406, R.P.C. That he

has not done. His approach to that part of the case is wholly erroneous. So far as the other part is concerned, it is still worse. The magistrate could

not refuse to take cognizance simply because the police was already seized of the matter. There is nothing in the Cr. P.C. to show that the

jurisdiction of the magistrate to take cognizance is barred where the matter is under investigation by the police. The order of the magistrate refusing

to issue process is patently perverse and the learned CJM was not justified in confirming the same.

I, therefore, allow this revision petition, set aside the order of the trial magistrate and so also passed in revision by the CJM, Srinagar. The trial

Magistrate is directed to pass fresh orders in accordance with law. The parties are directed to appear before the trial Magistrate on 2nd of

September, 1980.