Tilak Raj Pandoh vs Jagan Nath

This petition has been preferred under section 561A 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 :an seek assistance of the hand writing expert and also summon

the original record.

Respondent, Jagan Nath, preferred a complaint before the learned Oity 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.

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. 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 subjectmatter in this petition for quashment, in invoking

inherent jurisdiction of this Court under section 561A Cr. P.C.

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.

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"". 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 stand i 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.

The Apex Court, while dealing with a similar proposition in case reported as Smt Nagqwwa v. 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.

That apart, the inherent jurisdiction under section 561A 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 561A

Cr. P.C.

In the facts and circumstances of the case, petition is dismissed as not maintainable.