Decided on December 29,1983



M.B.SHAH - (1.) The petitioner has filed the aforesaid Miscellaneous Criminal Application No. 1698 of 1982 for quashing the proceedings in Criminal Case No. 963 of 1982 pending before the Metropolitan Magistrate Court No. 2 Ahmedabad. Along with the said Miscellaneous Application he had also filed Miscellaneous Criminal Application No. 1785 of 1982 wherein he had prayed that secs. 190 and 251 of the Criminal Procedure Code hereinafter referred to as the Code be declared as unconstitutional and illegal. The petitioner also prayed that the procedure prescribed for the Summons Cases beginning from sec. 251 to sec. 259 is unreasonable and is therefore in violation of Article 21 of the Constitution.
(2.) In order to appreciate the contentions of the petitioner a few relevant facts may be noted first. Respondent No. 1 had filed the aforesaid criminal complaint being Criminal Case No. 963 of 1982 on 15-5-82 before the Metropolitan Magistrate Court No. 2 inter alia contending that the Gujarat Ginning & Manufacturing Co. Ltd. was the owner of land bearing S. Nos. 217/1 and 218 situated near Prem Darwaja Ahmedabad. In 1972 out of the said land land admeasuring 100 sq. yards was rented to the accused-petitioner in the name of Gokaldas & Sons The standard rent of the said premises was fixed at Rs. 2601 per month by Ahmedabad Small Causes Court. The said standard rent was determined by compromise in appeal on 31/07/1978. Adjoining the land which is rented to the accused there was other open space owned by the complainant in that occupation wherein there is one boiler pump and chimney. For maintaining the said boiler pump and chimney a hedge of corrugated iron sheets is constructed by them and that the complainant was using open space for going in and coming out of the said hedged portion. It is further alleged that 15 days prior to the date of filing complaint the accused has constructed 7 ft. wall on the open land which was in possession of the complainant in area admeasuring round about 3Q0 sq. yards thereby the accused has committed criminal trespass and also has wrongfully restrained the complainant from using the other land wherein boiler pump and chimney are situated. The compliant has further averred that when he came to know about the sat trespass he inquired from the accused why he had committed criminal trespass. At that time the accused became angry and he abused the complainant and insulted him and asked him to do whatever he liked. On these allegations the complaint for the offences punishable under secs. 447 341 & 504 of the Indian Penal Code was filed. After verification the Metropolitan Magistrate has issued summons for the offences punishable under secs. 447 and 341 of the Indian Penal Code on 15-5-82.
(3.) It seems that on 9-6-82 the plea of the accused was recorded and he had not pleaded guilty to the offence. The learned Magistrate has proceeded with the trial as the case was summons triable case. On 18 the learned Advocate for the accused had filed an application contending that in the complaint there are incorrect and misleading statements concealing the material facts from the Court and the complaint does not disclose offence punishable under the Penal Code. He therefore prayed that the accused may be allowed to tender documents and photographs to substantiate his contention and thereafter to drop the proceedings against him as the complainant intended to harass the accused without just and legal cause.;

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