Ramesh Chander and Others vs Sonika Gupta

J.P. Singh, J.—The process issued by Judicial Magistrate, 1st Class (City Judge), Jammu, on respondent's/Complaint u/s 406 RPC is

questioned by the petitioners projecting, inter alia, the abuse of the process of law by the respondent to pressurize and harass the petitioner so that

he was disabled to prosecute his Petition filed in the Matrimonial Court to seek dissolution of Marriage. The facts giving rise to the case may be

stated thus:

The Respondent Sonika Gupta was married to the 1st petitioner Ramesh Chander Gupta op January 30, 2005 at Janipur, Jammu. The 2nd and

3rd petitioners are the brothers-in-law and the 5th petitioner, the mother-in-law of the respondent. The 6th petitioner is the near relation of

petitioner Nos. 1 to 5.

The respondent filed a Complaint saying that the petitioners had dishonestly misappropriated her ""Istridhan"" and were still misappropriating her

property, i.e., gifts given to her at the time of the marriage, which after its transfer to them, by her, were kept in the custody of petitioner No. 6.

The process was issued against the petitioners on the basis of the Statements of the respondent and her mother Kamla Devi.

Heard learned counsel for the parties and perused the Complaint as also the Statements recorded in support thereof.

In their sworn testimony, the Complainant and her mother say that all the petitioners were misusing her ""Istridhan"" and had dishonestly

committed breach of trust by misusing the Complainant's property which they had no right so to do.

The Statements of the Complainant and her witness are, however, significantly silent about any such act or omission of the petitioners, either

individually, or collectively, that was construed by the Complainant as misuse of ""Istridhan"" and breach of trust. No such facts on the basis whereof

even inference of misappropriation be drawn are indicated either in the Complaint or in the statements. The manner of use of property which is

stated to have been misappropriated, is not indicated in the statements.

The question that therefore falls for consideration is whether process was justified against the petitioners, on the basis of such statements which

reiterated only the phraseology employed in the charging section, and nothing beyond, or such facts or circumstances demonstrating attraction of

the provisions of the charging penal Section were required to be spelt out by the complainant and her witness in their statements recorded on oath?

In terms of the provisions of Section 204 Cr.P.C., before considering issuance of process, the Magistrate is required to satisfy himself, on the

basis of the statements of the complainant and his/her witnesses, if any, recorded on oath, that there existed sufficient ground for proceeding against

the accused. The satisfaction contemplated by the section may be gathered from such facts or circumstances as spelt out by the complainant or

his/her witnesses in their evidence which may prima facie indicate commission of offences.

Mere reiteration of the phraseology of the Penal section in the statements may not furnish requisite material needed for recording satisfaction

contemplated by law for issuance of process by the Magistrate. This is so because issuance of process has the effect of taking away the freedom

affecting the Right to personal liberty of the person proceeded against, in that, his freedom thereafter shall be subject to the orders to be passed by

the Court regulating his attendance during trial in the complaint. It is no doubt true that Right to personal liberty may not be absolute and was

subject to its curtailment by Judicial Process or under any law for the time being in force; but before doing that reasonable grounds must exist

warranting depriving one of his/her liberty. Taking away the liberty of any person on mere ipsi dixit of the complainant or his/her witnesses in saying

that the accused had committed offence(s) punishable under an indicated section, may not be permissible. The existence of such facts or

circumstances which indicate the commission of offences is the sine qua non for proceeding u/s 204 Cr.P.C. on a complaint.

As the complainant and her witnesses have not spelt out requisite facts or circumstances demonstrating commission of any offences, so mere

reproduction of the wording of the Penal Section by the complainant and her witnesses in their statements does not satisfy the requirements of

Section 204 Cr.P.C and the process issued by the learned Magistrate on the respondent's complaint cannot, therefore, be justified.

At this stage, regard needs to be had to the provisions of Section 200 Cr.P.C in terms whereof on taking cognizance on complaint, the

Magistrate is required at once to examine the complainant and the witness present, if any, upon oath and thereafter to reduce to writing, the

substance of the examination.

The examination of the complainant and her witnesses, on the basis whereof, the Magistrate has to record satisfaction and thereafter issue

process against the accused, that may affect the accused's right to liberty, which as already indicated, may be done, on existence of reasonable

grounds, appears to have been intended by the Legislature, a approbatory function, that the Judicial Magistrate must himself discharge, putting such

additional questions to the complainant and his/her witnesses, in addition to what was narrated by them, which the circumstances of the case may

so require, to get requisite information about the facts and circumstances of the occurrence complained against, to satisfy himself as to the truth or

otherwise thereof, for recording satisfaction, as to whether or not the complaint warranted issuance of process against the accused. Recording of

the statement in a routine fashion as it usually so happens and proceeding on what was stated by the complainant and her witnesses alone, without

asking such additional questions that may be required to record requisite satisfaction, may not serve the purpose intended by the provisions of

Section 200 Cr.P.C.

The cautious and probative approach of the learned Magistrates would obviate abuse of the process of law, and possible remands for fresh

detailed approbatory examination of the complainant and his witnesses.

The process issued on the respondent's complaint against the petitioners cannot, therefore, for all what has been said above, be sustained in the

absence of requisite examination of the Complainant and her witness about the facts and circumstances, which according to the respondent

amounted to misappropriation of her entrusted property by one or the other accused.

This petition, therefore, succeeds, and is accordingly allowed, setting aside learned Judicial Magistrate, 1st Class (City Judge), Jammu's Order

dated 9.3.2009 and all other Orders passed subsequent thereto. The complaint of the respondent is remanded to the learned Magistrate for its

consideration afresh in accordance with law.