M. Murtaza Husain, J. - (1.) THIS petition under Sec. 482 CrPC (New) has been filed for quashing orders dated 9-11-1976 and 26-6-1979 passed by the Judicial Magistrate, N. E. Rly. at Lucknow.
(2.) THE facts of the case, giving rise to this petition, are that on 31-10-1975 Rakshak Baij Nath Tewari of the Railway Protection Force at Lucknow lodged a report at his outpost that two looking mirrors, which were railway property, were found in possession of Krishna Kant Tewari petitioner No. 1 and two others, whereby they were guilty under Sec. 3 of the Railway Property (Unlawful Possession) Act. A case was registered on the basis of that report and ultimately the investigating officer submitted a final report before the learned Magistrate informing him that no prima facie case stood made out against the accused persons and no legal action against them was called for-. On this report the learned Magistrate passed the following order on 9-11-1976 :- "I have gone through the case diary at length. I am satisfied that there are sufficient grounds for proceeding against the accused, Krishna Kant Tewari, Gur- bachan Singh, Gauri Shanker A. M. E. Tawarak Husain and Som Prakash (i e , all the petitioners) under Section 3/4 Railway Property (Unlawful Possession) Act. I, therefore, take cognizance of this offence against the accused persons under Sec. 190 (c) of the CrPC 1973. Let the accused persons be summoned under the said sections for 30-11-1976. It will not be out of place to mention here that the I. O. has been asked to submit the final report on some administrative grounds and the prosecution has tried to usurp the jurisdiction of the court on weighing evidence on record." In pursuance of the above order the petitioners put in appearance before the learned Magistrate and pleaded that after the submission of the final report by the police, the learned Magistrate was not justified in taking cognizance and summoning the accused solely on the basis of papers which were put up by the police before him. This contention was rejected by the learned Magistrate through order dated 26-6-1979. The validity of the aforesaid two orders of the learned Magistrate has been challenged by the petitioners in this petition. It was pointed out on behalf of the State that both the impugned orders are interlocutory in nature and exercise of revisional powers by this Court with respect to such orders being barred by Sec. 397 (2) CrPC (new), this Court cannot sit in judgment upon the validity of those orders as it will amount to a circumvention of that legal bar. This controversy stands resolved since the decision of the Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47. It was pointed out by their Lordships that if the impugned order clearly brings about a situation which is an abuse of the process of Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Sec. 397 (2), CrPC can limit or affect the exercise of the inherent power by the High Court. It was specifically laid down by their Lordships that :- "An order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Sec. 397 (2), CrPC."
(3.) IN Smt. Nagawwa v. Veranna Shivalingappa Konjalgi, 1976 CrLJ 1533 the Supreme Court laid down four considerations which should weigh with the High Court for quashing or setting aside the order of a Magistrate whereby he issues process against an accused person after taking cognizance of an offence. The third consideration laid down by their Lordships in that decision is :- "(3) Where the discretion exercised by the Magistrate in issuing process is capricious or arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible." If the plea of want of jurisdiction raised in the present petition is accepted and it is held that the learned Magistrate could not take cognizance under Sec. 190 (1) (c), CrPC (new) on the basis of the police report, with which he did not agree, and his order for issuing process against the petitioners was capricious and arbitrary in the sense that it was based on no evidence, or upon material which was wholly irrelevant or inadmissible, then the proceedings pending against the petitioners in the court of the learned Magistrate, are without jurisdiction, since the very start, continuance of such proceedings would obviously amount to an abuse of the process of court. In this situation it will be necessary for this court to exercise its inherent powers under Sec. 482 CrPC for the purpose of securing the ends of justice.;