M.Wahajuddin - (1.) APPLICANTS have been summoned in pursuance of the complaint under Sections 427, 147 and 149 IPC. The arguments are two folds. Firstly, it is urged that no prima facie case is disclosed ; secondly, it is urged that as concerning the same crop the present applicants filed a complaint earlier in time and on that the opposite parties were summoned, that would amount to believing that the petitioners are in possession and when that is the position, it cannot be considered that there is a prima facie case. Reliance is placed upon a single Judge pronouncement in the case of Khem Chand v Avendra Singh Nayal, 1983 ACrR 323. There is, however, an earlier pronouncement in the case of Yadram v. Smt.Maragari alias Shri Debi, 1983 ACrR 119 taking a different view that court will not enter into question of facts as such in proceedings under Section 482 CrPC. When that is the position, actually the Supreme Court pronouncements would be the best guide The law of precedents is well settled that where there are two or more pronouncements on any point by equal number of judges the latter pronouncement will be followed I am mentioning this because in the case of Khem Chand (supra) some much earlier Supreme Court pronouncements have been quoted regarding the general principles. However, the latest pronouncement on the point is Delhi Municipality v. Ram Kishan, AIR 1983 SO 67. I may quote: the guide lines regarding the matter laid down in para 8 : " Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside : (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused (2) Where the allegations ' made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of a complaint by legally competent authority and the like. "
(2.) IN fact, IN the case of H. S. Bens v. State, 1980 AWC 619 the principle laid down is that it is; the satisfaction of the Magistrate taking cognizance. IN fact, in that case the Magistrate had directed further investigation after recording statements and police report was that no case was made out yet the Magistrate summoned the accused and it was held that be could do so. Thus the position of law is as aforesaid. I may now come to the factual aspect whether prima facie case is disclosed. In the complaint there is an express recital that opposite party has sown crop and the applicants forming an unlawful assembly uprooted and destroyed the same. There is statement in support of the complainant under Section 200 and 202 CrPC. That would be sufficient for the prima facie satisfaction and when there are materials disclosing prima facie case this Court cannot say that such and such further evidence should have also been led including documentary evidence. Of course, this consideration would arise at later stage when applicant put appearance and the matter is before the Magistrate. The next point urged is that as in the earlier complaint case instituted by the applicants, opposite parties were summoned that would amount to holding that applicants are in possession so the Court in the cross complaint could not hold otherwise. This argument ignores one fundamental fact. The Magistrate when he passes any order under Section 204 CrPC makes his satisfaction only on the strength of ex parte evidence, that is, statement under Section 200 and 202 CrPC. It cannot be a final conclusion of the Magistrate nor can it bar the Magistrate from taking cognizance in any cross-case. As regards equity and justice, it would rather demand that when there are cross coses both be taken cognizance of and if passible, to avoid contradictory version, may be tried by the same court but that is of course for the parties to move the competent court for directing that the cases be ultimately tried by the same Magistrate. I have made this simply a observation. I may also make myself clear that whatever observations I have made may not in any way prejudice the Magistrate because they are simply based upon prima facie aspect of the case.
(3.) IT was in the end submitted that the accused persons in the present case are old ladies and other ladies including minors, so there may be hardship in appearance by them personally on each dale. I am confident that as law also takes such factor into consideration and the Magistrate is fully empowered to dispense with the personal appearance and permit appearance through counsel unless personal appearance is directed on particular date, he will take compassionate view in the matter on any application made before the Magistrate. At this stage the application under Section 482 CrPC is summarily rejected.;