Case Note & Summary
The petitioners, Vipin Bower and Vinus Bower, filed a criminal writ petition under Article 227 of the Constitution before the Bombay High Court, Nagpur Bench, challenging the order dated 3.11.2007 passed by the Additional Chief Judicial Magistrate, Nagpur, issuing process against them in a private complaint filed by respondent No.2, Nisha Choudhary. The complaint alleged offences under the Indian Penal Code. The Magistrate, after conducting an enquiry under Section 202 of the Code of Criminal Procedure, 1973 (CrPC) through the police, passed the order issuing process. The petitioners' revision against this order was dismissed by the Ad-hoc Additional Sessions Judge, Nagpur. The petitioners contended that the Magistrate failed to consider the police enquiry report, which was not adverse to them, and passed the order without application of mind to the evidence on record. The respondent No.2 argued that two courts had concurrently found a prima facie case and that no interference was warranted. The High Court, after hearing the parties and perusing the impugned orders, observed that the order issuing process had serious consequences and that the Magistrate had not considered the Section 202 CrPC enquiry report. The court noted that the revisional court also failed to correct this error. Consequently, the High Court set aside the impugned orders and remanded the matter to the Magistrate for fresh consideration, directing that the police report be taken into account before passing a fresh order. The court clarified that it had not expressed any opinion on the merits of the complaint.
Headnote
A) Criminal Procedure - Issuance of Process - Section 202 CrPC - Consideration of Enquiry Report - The Magistrate failed to consider the police enquiry report under Section 202 CrPC which was not adverse to the accused, and passed the order issuing process without application of mind to the evidence on record. Held that the order was unsustainable and liable to be quashed. (Paras 1-5) B) Criminal Procedure - Writ Jurisdiction - Interference with Concurrent Findings - The High Court can interfere under Article 227 when the order of the Magistrate is passed without application of mind and the revisional court has not corrected the error. Held that concurrent findings do not bar interference if the order is perverse. (Paras 4-5)
Issue of Consideration
Whether the order issuing process in a private complaint was passed without application of mind and without considering the police enquiry report under Section 202 CrPC, and whether the High Court should interfere in writ jurisdiction.
Final Decision
The High Court allowed the writ petition, set aside the impugned orders dated 3.11.2007 and the revisional order, and remanded the matter to the Additional Chief Judicial Magistrate, Nagpur for fresh consideration, directing that the police report be taken into account before passing a fresh order. The court clarified that it had not expressed any opinion on the merits of the complaint.
Law Points
- Section 202 CrPC enquiry report must be considered before issuing process
- Issuance of process requires application of mind to evidence on record
- Concurrent findings not immune from writ jurisdiction if order is perverse or without application of mind
