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Smt. Jancy Nelson D’Soza, Shri -vs- Mr. Nelson D’Souza And State Of on 2 May, 2003

Bombay High Court Smt. Jancy Nelson D’Soza, Shri -vs- Mr. Nelson D’Souza And State Of on 2 May, 2003
Equivalent citations:2004 CriLJ 1690
Bench: J Chitre

JUDGMENT

1. Petitioners are hereby assailing correctness, propriety and legality of the order of taking cognizance of the compliant filed by respondent No. 1 in the Court at Ulhasnagar passed in Criminal Case No. 148 of 1995, as well as summons issued in that context for the offences punishable under provisions of Sections 147, 148, 149, 323 of Indian Penal Code. A complaint was presented in the said Court against the present applicants alleging that on 19/5/1995 they visited the house of respondent No. 1 (original complainant) between 8.30 p.m. and 9.30 p.m. which happens to be Room No. 301, 3rd floor Crist Apartment, Vandrapada, Ambarnath.

2. As indicated by the said complaint itself and submitted by Shri Joshi that the respondent No. 1 and present applicant No. 1 happens to be husband and wife. Their relations are strained. Already before filing of the present compliant, a complaint was filed by applicant No. 1 against respondent No. 1 alleging commission of the offence punishable under Section 498A of Indian Penal Code. Shri Joshi submitted that on the said date some persons, had gone to the said house of respondent No. 1 for the purpose of taking back her belongings, she and all the applicants had visited the said room along with two police constables from Ambarnath Police Station.

3. Shri Joshi submitted that when the applicants had visited the said room along with two police constables from Ambarnath, why they would commit the offence alleged by respondent No. 1. It is the submission of Shri Joshi that the learned Magistrate should have noticed this aspect of the case and should not have issued the process against the applicants in respect of the offence punishable under provisions of Section 147, 148, 323 of Indian Penal Code. He submitted that in view of all these things, the present petition be allowed and the said prosecution be quashed.

4. Shri Saste, A.P.P. submitted that the present petition be dismissed and the order passed by the learned Magistrate be maintained. According to him there is nothing on record to show that the applicants visited the said room along with two police constables of Ambarnath Police Station. It is settled principle of law that at the time of taking cognizance of the complaint presented before a Magistrate, the Magistrate has to deal with the said complaint in view of the allegations mae in the complaint itself and he has to find out whether prima facie offence has been spelled out. At that stage it is not necessary for him to make a detailed enquiry touching niceties.

5. Thus, if the allegations made in the complaint filed by respondent No. 1 are considered as they are, it is very clear that no act has been attributed to applicant No. 1, 3, 4 and 5. It has been alleged that the applicant No. 2 caught the collar of the shirt of respondent No. 1 the original compliant and he started assaulting him by saying that respondent No. 1 has ruined the life of his daughter (presented applicant No. 1). At that time as per allegations made by the respondent No. 1, he said that he would not keep him alive. It has been alleged, so far as applicants No. 1, 3, 4 and 5 are concerned, that they started abusing him in filthy language. The learned Magistrate has not taken cognisance of those allegations and had not issued process against them for commission of the offence punishable under Section 506 of I.P.C. and an offence punishable under Section 504 of Indian Penal Code. Therefore, this Court should not consider the averments made to that effect in the complaint so presented before the Magistrate.

6. Keeping aside that portion of the allegations, no case has been made out in the said complaint, even prima facie that applicant No. 1, 3, 4 and 5 had formed an unlawful assembly as contemplated by Section 141 of Indian Penal Code. Therefore as there was no offence of unlawful assembly, there was no question of issuing process against them for the offence punishable under Section 147 of I.P.C. There was no allegations that being members of an unlawful assembly they were armed with deadly weapons. Therefore, there was no question of issuing process for an offence punishable under Section 148 of I.P.C.

7. Section 319 of I.P.C. gives the definition of hurt. It defines that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Section 323 of I.P.C. provides that whoever except in the case provided for by Section 334, of I.P.C. voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Therefore, when a complaint in respect of offences punishable under provisions of Sections of Indian Penal Code has been presented before the Court, the Court is bound to make a scrutiny of the material which has been placed before it for the purpose of finding out whether any prima facie case has been made out showing commission of offence punishable under provisions of I.P.C. or any other penal law. The Court should not mechanically issue the process whenever complaint has been presented before the Magistrate. The court has to make the scrutiny qua definition given by the penal provisions of the relevant law brought in picture by allegations made in the complaint.

8. When the offence has been alleged in the complaint in respect of unlawful assembly the Court is bound to make scrutiny for the purpose of ascertaining whether allegations are making out a consider whether the allegations made in the complaint are indicating that the unlawful assembly was formed immediately before commission of the alleged offence. Magistrate has to see whether the members of unlawful assembly were present in the said unlawful assembly with intention of committing the offence or for the purpose of executing object of unlawful assembly or were knowing that some acts would be committed in prosecution of that object for which the said unlawful assembly was formed and very importantly whether the said assembly was formed for the purpose of committing the offence of rioting as indicated by the provisions of Section 146 of I.P.C.

9. So far as present case is concerned, the complaint does not spell out the offences punishable under provisions of Section 147 and 148, because there was no indication of formation of unlawful assembly as defined by Section 141 and there was no case of rioting as indicated by provisions of Section 146 of I.P.C. When that was so there was absolutely no offence indicated against the accused under Sections 147 and 148 of Indian Penal Code.

10. There was absolutely no allegation in the complaint that applicants No. 1, 3, 4 and 5 committed any act for the purpose of causing any bodily pain, disease or infirmity as contemplated by the provisions of Section 319 of I.P.C. When that was so there was no question of issuing process against them for the offence punishable under Section 323 of I.P.C.

11. Thus, the said prosecution initiated against applicants No. 1, 3, 4, and 5 needs to be quashed.

12. Shri Joshi made submissions touching the defence which is likely to be taken by applicant No. 2 in the said case, if it proceeds further. That is touching the delay in filing the said complaint. He made submission touching the previous complaint which was filed by applicant No. 1 against respondent No. 1 alleging commission of offence punishable under Section 498A of I.P.C. The submissions which have been advanced by Shri Joshi that two police constables were present at that time would be also a matter for consideration by that Court when the trial would proceed. The applicant No. 2 would be entitled to raise such defence at any stage of the said trial, like the stage when the said court has to explain the particulars of offences to him and at that time when the prosecution witnesses would be examined in chief and cross-examined. The applicant No. 2 may examine those two police constables as defence witnesses also.

13. So far as present case is concerned, the prosecution initiated on the said complaint filed by respondent No. 1 stands quashed so far as applicants No. 1, 3, 4 and 5 are concerned. Said prosecution be continued further in respect of applicant No. 2 who should remain present before that Court sue motu in response to summons which was issued to him. He should make application to that Court for making his presence in respect of said case and he is at liberty to pray for exemption as indicated by provisions of Section 205 of Criminal Procedure Code, 1973, keeping in view the old age of applicant No. 2. The observations made by this Court against applicant No. 2 should not weigh against him at the time of trial.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer /Sheristedar of this Court.

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