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Nasir Vs. Nadeem - (High Court of Bombay) (26 Sep 2018)

Act of issuance of process is a serious business; a trial cannot be based on vague and incomplete allegations in complaint



Present application has been filed for invoking inherent powers of present Court, by the original accused No. 2 in order to challenge order of issue of process against him by Learned Judicial Magistrate First Class for the offence punishable under Section 420 of Indian Penal Code, 1860 (IPC). Applicant is Advocate by profession. Appellant submitted that, complaint does not disclose any offence. Learned Magistrate has committed wrong in issuing process only against him. He has therefore, prayed for the setting aside the order of issuance of process against him.

Complainant has intentionally not given clear dates of his knowledge of certain facts. If those facts would have been disclosed by him, learned Magistrate would not have issued process against even accused No. 2. When he had entered into the agreement and parted with the amount without taking proper precautions, then he has to thank himself. It also appears that he was not diligent in pursuing with the transaction. If he would have been, then he would not have wasted such a long time. Learned Magistrate failed to take note of all these things. It appears that Learned Magistrate was swayed away with apparent facts.

Act of issuance of process is a serious business. It requires due application of judicious mind from all angles. Person or persons should not be made just to face a trial only on the basis of vague and incomplete allegations in the complaint. Learned Magistrate, in fact, had an option to postpone the issuance of process by making inquiry under Section 202 of Code of Criminal Procedure, 1973 (CrPC) either by himself or by police officer. In such cases, he ought to have resorted to this provision. Only after filtering all the facts and aspects, the order of issuance process ought to have been passed. It appears that, there was no due application of mind by the learned Magistrate in this case. Hence, order cannot be allowed to sustain. Application allowed. Order of issuance of process by learned Judicial Magistrate against the present applicant is set aside.


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