Case Note & Summary
The petitioner, Mohd. Raza Hasan, filed a Criminal Writ Petition before the Bombay High Court, Nagpur Bench, challenging the order dated 27.07.2010 passed by the Judicial Magistrate First Class, Court No.6, Nagpur in Summary Criminal Complaint No.5314/2008. The Magistrate had issued process against the petitioner and three others for offences punishable under Sections 504, 506, and 509 read with Section 34 of the Indian Penal Code. The petitioner contended that the Magistrate had earlier ordered an inquiry under Section 202 of the Code of Criminal Procedure, 1973, and the police submitted a report dated 20.11.2008 stating that no evidence was available regarding the incident dated 08.03.2008, along with statements of eight witnesses. The petitioner argued that the Magistrate failed to consider this report before issuing process, and that the order was not reasoned or speaking. The High Court, after hearing the parties, observed that the Magistrate had indeed ordered an inquiry under Section 202 CrPC and received a police report. However, the impugned order dated 27.07.2010 did not mention or consider this report. The Court held that the Magistrate was duty-bound to consider the inquiry report before issuing process, and the failure to do so rendered the order illegal. Consequently, the High Court quashed the order issuing process and remanded the matter back to the Magistrate for fresh consideration in accordance with law, after affording an opportunity of hearing to both parties.
Headnote
A) Criminal Procedure - Issuance of Process - Section 202 CrPC - Consideration of Inquiry Report - The Magistrate, after ordering an inquiry under Section 202 CrPC, must consider the report submitted by the police before issuing process. Failure to do so renders the order illegal and liable to be set aside. The order must be reasoned and speaking, reflecting application of mind to the material on record. (Paras 3-5) B) Criminal Procedure - Summary Complaint - Sections 504, 506, 509 IPC - Prima Facie Case - The Magistrate's order issuing process for offences under Sections 504, 506, 509 read with Section 34 IPC was quashed as the Magistrate did not consider the police report under Section 202 CrPC which stated that no evidence was available. The High Court held that the order was passed mechanically without application of mind. (Paras 3-5)
Issue of Consideration
Whether the learned Magistrate was required to consider the report submitted under Section 202 of the Code of Criminal Procedure, 1973 before issuing process, and whether the order issuing process was sustainable in the absence of such consideration.
Final Decision
The High Court allowed the petition, quashed the order dated 27.07.2010 passed by the learned Judicial Magistrate First Class, Court No.6, Nagpur in Summary Criminal Complaint No.5314/2008, and remanded the matter back to the Magistrate for fresh consideration in accordance with law, after affording an opportunity of hearing to both parties.
Law Points
- Section 202 CrPC inquiry report must be considered before issuing process
- Order issuing process must be reasoned and speaking
- Non-consideration of police report vitiates the order
