Case Note & Summary
The petitioner, Zamirullah Chowdhary, was accused No.12 in Complaint Case No.32/SW/2011 pending before the Metropolitan Magistrate, 51st Court, Kurla, Mumbai, for an offence under Section 420 read with Section 34 of the Indian Penal Code. The complaint was filed by respondent No.1, Aslam Ali, alleging that accused Nos.1 to 8, who were his relatives, had cheated him in respect of property left by his father Kasam Ali. The learned Magistrate, after examining the complainant, passed a brief order stating 'there is a prima facie case to proceed. Issue process under section 420 of I.P.C.' without specifying which accused or mentioning Section 34. Consequently, process was issued against all 15 accused, including the petitioner. Aggrieved, the petitioner filed a revision before the Additional Sessions Judge, which was dismissed. The petitioner then approached the High Court under its constitutional and inherent powers. The High Court examined the complaint and found that the allegations were specifically against accused Nos.1 to 8, who were relatives of the complainant, and that the petitioner (accused No.12) was only a witness to a document and no specific act of cheating or dishonesty was attributed to him. The Court held that the Magistrate's order was mechanical and did not reflect application of mind as to each accused. The Court quashed the order issuing process against the petitioner and allowed the petition.
Headnote
A) Criminal Procedure Code - Quashing of Process - Section 482 CrPC - Abuse of Process - The High Court quashed the order issuing process against the petitioner as the complaint lacked specific allegations against him, and the Magistrate's order did not record satisfaction as to each accused - Held that process cannot be issued mechanically without application of mind (Paras 5-8).
B) Indian Penal Code - Cheating - Section 420 IPC - Prima Facie Case - The complaint alleged cheating by accused Nos.1-8 in respect of property, but the petitioner (accused No.12) was only a witness to a document and no fraudulent or dishonest act was attributed to him - Held that mere presence or relationship does not constitute cheating (Paras 5-7).
Issue of Consideration
Whether the order issuing process under Section 420 IPC against the petitioner (accused No.12) can be sustained when the complaint does not contain any specific allegations against him.
Final Decision
The High Court allowed the petition and quashed the order issuing process against the petitioner (accused No.12) in Complaint Case No.32/SW/2011 pending before the Metropolitan Magistrate, 51st Court, Kurla, Mumbai.
Law Points
- Criminal Procedure Code
- 1973
- Section 482
- Indian Penal Code
- 1860
- Section 420
- Section 34
- Section 204
- Section 397
Case Details
2014 LawText (BOM) (09) 39
Writ Petition No.1606 of 2013
Mr.Samar Choudhary for petitioner, Mr.Niranjan Mundargi for respondent No.1, Mrs.S.V.Sonawane, APP for State
Aslam Ali S/o. Kasam Ali Kapoor & Anr.
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Nature of Litigation
Criminal writ petition under Article 226 and inherent powers of High Court seeking quashing of order issuing process under Section 420 IPC.
Remedy Sought
Petitioner (accused No.12) sought quashing of the order dated [Not mentioned] passed by the Metropolitan Magistrate issuing process against him, and the order of the Additional Sessions Judge dismissing his revision.
Filing Reason
The petitioner was summoned as an accused in a complaint case for cheating under Section 420 IPC, but the complaint contained no specific allegations against him.
Previous Decisions
The Metropolitan Magistrate issued process against all accused including the petitioner. The Additional Sessions Judge dismissed the revision application filed by the petitioner.
Issues
Whether the order issuing process under Section 420 IPC against the petitioner can be sustained when the complaint does not contain any specific allegations against him.
Whether the Magistrate's order was mechanical and without application of mind.
Submissions/Arguments
Petitioner argued that the complaint did not attribute any specific act of cheating or dishonesty to him; he was only a witness to a document.
Respondent No.1 argued that the Magistrate found a prima facie case and the revision court rightly upheld it.
Ratio Decidendi
A Magistrate must apply his mind to the allegations against each accused before issuing process. If the complaint does not contain specific allegations against a particular accused, process cannot be issued mechanically. The order must reflect satisfaction as to each accused.
Judgment Excerpts
The substance of the grievance of the complainant as reflected from the complaint is as follows:- That the accused Nos. 1 to 8 are related to him.
I have gone through the complaint... The allegations are only against accused Nos.1 to 8. There is no specific allegation against the petitioner.
The order of the Magistrate does not reflect any application of mind as to each accused.
Procedural History
The complainant filed a complaint under Section 420 IPC read with Section 34 IPC before the Metropolitan Magistrate, 51st Court, Kurla, Mumbai. The Magistrate examined the complainant and passed an order 'there is a prima facie case to proceed. Issue process under section 420 of I.P.C.' Process was issued against all 15 accused. The petitioner (accused No.12) filed a revision before the Additional Sessions Judge, which was dismissed. The petitioner then filed the present writ petition before the High Court.
Acts & Sections
- Indian Penal Code, 1860: 420, 34
- Code of Criminal Procedure, 1973: 482, 204, 397
