- (1.)This matter arises out of the issue of process by the Additional Chief Metropolitan Magistrate, Borivli, Bombay in Case No. 58/S/91 filed by the first respondent against the petitioners. It is alleged in the complaint that the petitioners have committed offences under sections 386, 451, 352, 419, 506(II) read with section 34 of the I.P.C. For the purpose of the case I do not think it is necessary to go into the every details contained in the complaint. Along with the complaint the names of 10 witnesses were shown and about 8 items of documents were also produced. The complaint was filed on 5-2-1990 and it was posted for verification on 6-3-1990. It appears that on 6-3-1990 verification was not done. On 15-5-1990 verification was done. But it was stopped abruptly, and it was adjourned to 5-6-1990 for want of time. In the verification he stated that he made a complaint in Borivli Police Station as per Exh. D a zerox copy of which is produced. On 2-2-1991 i.e. after an year the Magistrate made an endorsement that verification statement was perused and directed the complainant to bring evidence. On 2-4-1991 the Advocate for the complainant made an endorsement to the effect that the complaint does not press the offences under section 386, 352, 419 I.P.C. But he pressed for process under sections 451, 506(1) read with 34 of I.P.C. On the same day the Magistrate ordered thus:- In view of the subsequent endorsement of the complainant, issue process under sections 451, 506(1) read with 34 of I.P.C. against the accused.
(2.)Shri Tirodkar the learned Counsel for the petitioner submits that a very strange procedure has been adopted by the Magistrate which is in violation of the provisions of sections 200, 202, 203 and 204 of I.P.C. He submits that under these provisions a Magistrate is got only with three options.
One is that when the Magistrate is satisfied with the allegation and materials and on examination of witness present on the date of filing of the complaint, he can issue process. Secondly, if he is not satisfied with the veracity of the complaint, he can dismiss the complaint, straightway. Thirdly, on the basis of the materials available before the Magistrate neither he dismiss or issue process, he can direct an enquiry under section 156 of the Cr.P.C. or 202 of Cr.P.C.

(3.)According to Shri Tirodkar, Magistrate however, cannot adopt the methods which he has adopted in this case. The Magistrate cannot collect the evidence by calling upon the parties when allegation contained in the complaint does not satisfy him, nor the complainant cannot bargain for that. The learned Counsel submits that if the Magistrate is not satisfied with the offence which originally alleged in the complaint, the Magistrate can issue process at least, for some minor offence, if sufficient materials are there. I find considerable force in the contention of the learned Counsel that a very strange procedure is seem to have been adopted by the Magistrate in this case.