ORDER S.R. Bhargava, J.
1. The petition, under Section 482 Cr. P.C., has arisen from a complaint.
2. Petitioners Vishwa Nath Jiloka, Amar Nath Jiloka and Shambhoo Nath Jiloka are real brothers and are residents of Patna. Opposite party No. 2 Prem Narain Pandey is a resident of Bahraich. Opposite Party No. 2 Prem Narain Pandey filed a criminal complaint against the petitioners for offences under Section 420/406 I.P.C. with the allegations that on 14th June, 1986 he met the petitioners at Nanpara Railway Station and during talks petitioners introduced themselves to him. They represented themselves to be respectable Brahmins and told the purpose of their visit as search of a groom for their daughter. Opposite party No. 2 believed the representation of the petitioners and told them about Narendra Kumar, unmarried brother of his brother-in-law gainer (sic). They talked about mutually seeing the girl and the born 15th June, 1986. On that day, opposite party No. 2 along with his family members and the proposed boy reached Dalmia Dharamshala where petitioners along with the girl were present. After approval of the boy and the girl by the respective parties, the boy made gift of a ring in token of engagement to the girl. From the side of opposite party No. 2 cash of Rs. 500/- was given to the girl and a sum of Rs. 50/- was spent in sweets, fruits etc. It was settled that Tilak Ceremony shall be held on 28th June, 1986. But on the date so fixed petitioners or their relations did not turn up, nor sent any information. This gave rise to suspicion. On 18th July, 1986 opposite party No. 2 sent his brother Yogesh Pandey to Patna for ascertaining the truth. Then he came to know that the petitioners are Agarwalas and have no daughter of marriageable age. They refused to talk with complainant's brother and insulted him. Thus, they cheated the opposite party No. 2 and his relations of Rs. 2500/-.
3. Learned Magistrate recorded statement of Prem Narain Pandey under Section 200 Cr. P.C. and statement of Narendra Kumar under Section 202 Cr. P.C. Learned Magistrate found prima facie case under Section 420 I.P.C. against the petitioners and directed issue of summons to petitioners for their appearance on 24th October, 1986. On 10th August, 1987 petitioner No. 1 Vishwa Nath Jiloka was served with a non-bailable warrant at his shop and was arrested. He managed his bail from Chief Judicial Magistrate, Patna. Then he appeared before the Magistrate concerned at Bahraich and secured bail.
4. Thereafter, the petitioner filed this petition under Section 482 Cr. P.C., for quashing of the proceedings pending before the Magistrate concerned. They denied the allegations of the complaint and asserted that a false complaint with concocted facts and motive of harassing the petitioners on account of property dispute between them and their cousin Vishwa Nath was filed. The allegations of the complaint do not constitute any Offence.
5. Notices were issued to opposite parties. parties have exchanged affidavits. It is asserted by the opposite party No. 2 that the complaint was filed on correct facts constituting offence of cheating.
6. It is admitted by the petitioners that the petitioners Nos. 2 and 3 have not yet "surrendered" before the Magistrate concerned. On behalf of the petitioners serious grievance was expressed and it was contended that the petitioners are respectable businessmen of Patna. Yet in a complaint case, petitioner No. 1 was suddenly arrested at his business place and was humiliated, It was further explained on behalf of the petitioners that the petitioners Nos. 2 and 3 have not yet "surrendered" before the Magistrate concerned because they apprehend similar humiliation and harassment. In the petition itself word "surrender" has been used in connection with a complaint case. This is result of wrong and illegal practice prevalent in the Magistrates' courts. On account of wrong and illegal practice of surrender of the opposite parties in a complaint case, much harassment and humiliation is caused to the citizens and that is the reason why the opposite parties of complaint case instead of contesting the complaint before the Magistrates directly approach the High Court for quashing the proceedings. The wrong and illegal practice often gives rise to mischievous and vexatious complaints with false facts only for harassment and humiliation of the opposite parties. It, therefore, becomes the duty of this Court to explain the correct procedure for guidance of all the Magistrates,
7. Section 204 Cr. P.C. runs as under:
204. Issue of process : (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -
(a) a summons-case, he shall issue his summons for the attendance of the accused. or
(b) a warrant case he may issue a warrant or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint, (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this Section 2 shall be deemed to affect the provisions of Section 287.
It is evident from Clauses (a) and (b) of Sub-section (1) that a summons or warrant to the opposite-party or the accused of a complaint case is issued only for his attendance before the Magistrate or for him being brought or to appear before the Magistrate. Even if warrant is issued to the accused or opposite party in a complaint case, it is not a direction for investigation and so the Magistrate cannot grant judicial remand under Section 167 Cr. P.C. All that the accused or the opposite party of a complaint case has to do in response of a summon or a warrant issued, under Section 204. is to attend the court of the Magistrate or to appear before him.
8. Then it is evident from Clause (b) of Sub-section (1) that before issuing a warrant in a complaint case, which may be warrant case, a Magistrate himself should pause and think if the issue of summons should be more reasonable. The Magistrate should note that issue of warrant in a complaint case is to be governed by Sub-section (5) of Section 204 and for that there must be compliance of Section 87 Cr. P.C., which runs as under:
87. Issue of warrant in lieu of, or in addition to, summons - A Court may, in any case in which iris empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest -
(a) If, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reasons to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
9. When contingency for issuing a warrant as laid down in Section 87 has not arisen, the Magistrate should invariably think of issuing summons only. While issuing summons the Magistrate should bear in mind Section 205 Cr. P.C. which empowers the Magistrate to dispense with the personal attendance of the accused and to permit him to appear by his pleader. The Magistrate may at any stage of the proceedings, even though he has earlier exempted personal attendance of the accused, order the accused to be personally present Where the accused in a complaint case are of different districts or State, the Magistrate should invariably issue a summons to the accused dispending his personal attendance and permitting him to appear through pleader. This will automatically minimise mischievous and vexatious complaints simply filed for causing harassment and humiliation to the accused. Even when the personal attendance of the accused in a criminal case has not been exempted or when a warrant is issued to the accused in a complaint case under Section 204(1)(b) and the accused after being served with summons or warrant or having come to know of the same appears before the Magistrate, it is not at all legal for the Magistrate to take him into custody and then grant judicial remand necessitating a bail application and a bail order under Section 437 Cr. P.C. when a person appears or is brought before a Magistrate or court in response of summons or warrant, the proper procedure to be followed is laid down in Section 88 Cr. P.C., which runs as under:
88. Power to take bond for appearance -When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.
10. In case of breach of bonds furnished under Section 88 Cr. P.C. action can be taken for enforcing the bonds and further for arrest under Section 89 Cr. P.C.
11. It is thus obvious that practice followed in the courts of Magistrate by even some members of the bar, namely, moving an application for surrender of the accused in a complaint case and then after the accused is taken in the custody applying for bail is contrary to provisions of Cr. P.C. and is altogether unwarranted. It should be immediately given up and the accused of the complaint cases should be assured that they will be honourably dealt with in the courts of the Magistrates. In complaint cases when the accused appear before the Magistrate in response to summonses or warrants, the Magistrates should themselves note the appearance of the accused in the proceeding and should thereafter pass appropriate order for bonds with or without sureties as required under Section 88 Cr. P.C. If members of the bar want to place on the record that certain accused of (Sic) adjournment of the enquiry or trial should be only for reasons to be recorded; remand under this sub-section should not exceed 15 days at a time; when witnesses are in attendance no adjournment or postponement should be granted without examining them, except for special reasons to be recorded in writing and that no adjournment should be granted for purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Then the explanations of the sub-section make it clear that there must be reasonable cause for a remand and adjournment or postponement. If sufficient evidence has been obtained to raise a suspicion that accused may have committed an offence, and it appears likely that further evidence may be obtained by remand, it should, be treated as reasonable cause for a remand. Terms on which an adjournment or postponement may be granted to include, in appropriate cases, payment of costs by the prosecution or the accused. It is thus obvious that the Parliament intended that there should be minimum restriction to the fundamental right of liberty guaranteed under the Constitution. When an equally efficacious procedure is available for securing attendance of the accused in a complaint case, namely, obtaining bond with or without sureties under Section 88 Cr. P.C., power of judicial remand under Section 309(2) should not be used, otherwise there would be unnecessary infringement of the fundamental right of liberty. Perusal of Sections 88, 89 and 309(2) Cr. P.C., however, make it clear that in cases where accused of complaint case commits default and absents himself from the court entailing his arrest on a warrant issue under Section 89 Cr. P.C. and is unable to offer sufficient cause for his absence, power of judicial remand under Section 309(2) can be used.
12. Once appearance of accused or opp. parties of a complaint case is secured according to prescribed procedure the Magistrate should proceed to hear the prosecution and take evidence as may be produced in support of the prosecution under Section 244(1) Cr. P.C. If, upon taking of the evidence, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate should discharge him under Section 245(1). At the risk of repetition, it may be mentioned that the accused of distant places far away from the residence or business place of the complainant may claim indentification by prosecution witnesses during evidence or cross examination. Hence in such cases the Magistrates should not insist upon personal attendance or appearance of the accused in the court till the evidence begins. When the accused intend to claim identification during evidence they should themselves take precaution against being shown to the prosecution witnesses or becoming known to them.
13. The general rule laid down in Section 245(1) regarding discharge is that it should take place only after taking of all the prosecution evidence and after the Magistrate coming to the conclusion, for reasons to be recorded, that no case against the accused has been made out. But to this general rule there is exception in Sub-section (2) of Section 245 which permits the Magistrate to discharge the accused, "at any previous stage of the case", if for the reasons to be recorded by the Magistrate, he considers the charge to be groundless,
14. Single Judge view of Bombay High Court expressed in the case of Luis de Piedade Lobo v. Mahadev Vishwanath Parulekar 1984 Cri LJ 513, is:
The expression "at any previous stage of the case' occurring in Sub-section (2) of Section 245, unmistakenly and undoubtedly shows that even before recording of the evidence referred to in Section 244, the Magistrate can discharge the accused if he considers, for reasons to be recorded, the charge to be groundless. In other words, the provision of Sub-section (2) of Section 245, embodies an exception to the general rule laid down in Section 244 and Section 245(1) Cr. P.C. However, in the event process was issued such power of the Magistrate generally as a rule is not unfettered, since Section 204 prescribes that process may be issued by the Magistrate only if he is of the opinion that there is sufficient ground for proceeding for if the Magistrate himself was of the opinion that there were grounds for proceeding, it follows that he was satisfied, at the stage of issuing process, that the complaint was not groundless. Consequently, it follows also that some kind of additional evidence would be required to make him change his prior opinion that there were grounds for issuing the process and that the complaint was not groundless.
15. What this view means is that once process has been issued under Section 204 Cr. P.C. words 'at any previous stage of the case', occurring in Sub-section (2) of Section, become restricted and there can be no discharge unless some additional evidence is taken by the Magistrata. In Bhanwari Lal v. Kishori Lal 1977 Cri LJ 1438, a Single Judge of Rajasthan High Court took a contrary view and said:
The order of taking cognizance is an ex parte order and action of taking cognizance is taken behind the back of the accused by the Magistrate purely on the complaint and the statements recorded under Section 202 Cr. P.C. If one looks at 5. 245(2) Cr. P.C., the Magistrate is not precluded from discharging the accused in appropriate cases, if the accused satisfies after his appearance that the cognizance has been wrongly taken and the change against him is groundless. If a contrary view is taken then Section 245(2) which is a very salutary provision would become wholly redundant. The intendment behind Section 245(2) is that the complaint should not be allowed to be proceeded with on a charge which is a groundless one in order to prevent undue harassment of the accused persons. It is true that ordinarily the Magistrate should record evidence and proceed under Section 244, Criminal P.C.. and thereafter to take further proceedings under Section 245(1). But it is equally true that in view of the language employed by Legislature in Section 245(2) there is no bar against the Magistrate in discharging the accused even without recording the evidence in an appropriate case.
16. Having give my serious thought to the matter I am of the view that in Bombay case unnecessary fetter has been placed on the Magistrate by saying that once process under Section 204 Cr. P.C. has been issued, there must be some additional evidence before the Magistrate for exercising power of discharge under Section 245(2). Words "at any previous stage of the case" occurring in Sub-section (2) of Section 245, have very wide import and give unfettered discretion to the Magistrate to discharge accused for reasons to be recorded by him that the charge is groundless even before recording any evidence under Sections 244(1). It has to be remembered that soon after his appearance the accused may claim discharge under Section 245(2) on the ground of technical defect like want of sanction for prosecution, incompetence of the complainant to file complaint and inherent improbability or falsity of the allegations of the complaint. If Bombay view is preferred it would mean that once the Magistrate has issued process under Section 204 he cannot discharge the accused even on ground of technical defect in the complaint of incompetence of the complainant. For both these grounds of discharge the Magistrate requires no evidence. Then why he should be expected to record additional evidence. If on the face of the complaint or the evidence recorded, under Section 2s 200 and 202 Cr. P.C. there is technical defect which makes the complaint not maintainable or not maintainable by the complainant, the Magistrate can certainly discharge the accused under Section 245(2) without taking any additional evidence. Then it is striking that order under Section 204 of taking cognizance and directing issue of process is issued ex parte when the Magistrate does not have the advantage of arguments of other side. If after appearance the accused can argue and show on the face of the complaint and the evidence recorded under Section 2s 200 and 202 Cr. P.C. that the allegations of the complaint are inherently improbable and false or do not constitute offence, the Magistrate requires no additional evidence for discharging the accused under Section 245(2). This is the intention of the Parliament which can be gathered from the words "at any previous stage of the case" occurring in Section 245(2). Hence the view expressed in Rajasthan High Court case is more preferable and should be accepted. It should be generally laid down that after his appearance before the Magistrate according to law, the accused is entitled to claim discharge inter alia on the ground that the allegations of the complaint are inherently improbable and false or constitute no offence without recording any additional evidence under Section 244 Cr. P.C.
17. Then coming to the scope of inherent power of the High Court, under Section 482 Cr. P.C., it would be useful to the three cardinal principles laid down in the case of Madhu Limaye v. State of Maharashtra . The principles are:
(1) That the power is not to be restoted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engratted in any other provision of the Code.
17A. These principles have been generally followed. In recent case of State of Bihar v. Murad Ali Khan , it was laid down:
It is trite that jurisdiction under Section 482 Cr. P.C. which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell-out any offence and that recourse to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the court or not.
18. Coming to the allegations in the complaint of the instant case, there is alleged misrepresentation by the petitioners that they are Brahmins having a daughter of marriagable age inducing the complainant and his relations to enter into negotiations for engagement of a boy with a girl fakely described as Brahmin and making gifts to her. At this stage it was argued that there could not have been any engagement without the bride side offering some gifts to the bride groom and his relations. This argument can be appreciated only in the context of local custom which can be better known to the Magistrate working in that locality. This argument may be made more elaborate after some evidence including cross examination. Whether the evidence adduced under Sections 200 and 202 Cr. P.C. is palpably false is a matter of appraisal of evidence which should be left to the Magistrate even! on an application for discharge under Section 245(2) Cr. P.C. The instant case, is, therefore, not such in which this Court should quash the proceedings at this very stage. On the other hand ends of justice would be more effectively served by directing the Magistrate to accept the appearance of petitioners Nos. 2 and 3 through their counsel and insist upon personal attendance of the petitioners the evidence begins. It may further be left open petitioners to appear before the Magistrate prescribed procedure and move an applications Magistrate to claim discharge under Section 245(2) Cr. P.C. If the petitioners move such an application before the Magistrate, the Magistrate shall dispose of the same in the manner laid down under Section 245(2) Cr. P.C.
(Words indistinct and illegible - Ed.)
19. In the result this petition is partly allowed. Prayer for quashing the proceedings before the Magistrate is refused. Petitioners are allowed to appear before the Magistrate through their counsel as indicated above. They shall be at liberty to move an application before the Magistrate claiming discharge under Section 245(2). In the circumstances of the case, no order for cost need be passed.