- (1.) BARKAT All Zaidi, J. The aforesaid four petitioners have come to this Court under Section 482 Cr. P. C. seeking relief against an order of the Additional Chief Judicial Magistrate-III Gonda dated 21-8-2006 issuing warrant for their arrest, on the basis of a charge-sheet filed by the police of Police Station Paraspur District Gonda under Sections 323 and 504 I. P. C.
(2.) THE respondent No. 3 filed a First Information Report against the petitioners under Sections 323 and 504 I. P. C. but since they were non-cognizable offences, the police did not proceed to investigate the same. THEreafter, Opposite Party No. 3 sought orders of the Magistrate for investigation under Section 155 (2) Cr. P. C. In compliance of the Magistrate's order, the police investigated the case and filed charge- sheet. The only thing, the Magistrate did after receiving the charge-sheet that he noted thereon, that he had taken the cognizance. He did not clarify as to how and in what manner, the case would proceed and whether it will proceed as a complaint case or not since the charge-sheet was filed under Section 323 and 504 I. P. C. which were non-cognizable offences. The Magistrate straightaway issued summons and since the petitioners did not appear, Non- bailable warrants were issued. The Magistrate should have clarified whether the case is to proceed as a complaint case or not? Because, that will bring about a charge in the procedure under which the case is to be tried. This error on the part of the Magistrate has created confusion. It is also to be noticed that if case is to be tried as a complaint case which seemed in the circumstances to be the only alternative, no process could be issued unless the procedure prescribed for complaint's case under Sections 202,203 and 204 I. P. C. was adopted which was not don.
(3.) THE Counsel for the petitioners strenuously argued that this is a case of personal vendetta, because there had been matrimonial dispute between the daughter of the petitioner No. 1 and brother of complainant respondent No. 3 and Non-cognizable Report was filed at Gonda, only, with a view to harass the petitioners, because, of the matrimonial dispute. It was also pointed out that it sounds, who 7 unreasonable and thoroughly improbable, that despite ill relations and ill will between the parties, all the four petitioners including the person who arranged the marriage between Dinesh Kumar Dube and Smt. Rekha will travel down to Gonda from Ghaziabad where they reside and indulge in Marpeet of a simple nature at the house of respondent No. 3. THE element of personal grudge is so pronounced and evident in the circumstances, that, it should not have escaped the attention of the Magistrate. THE Counsel for the petitioners is right in pointing out that it is highly unlikely and wholly improbable that all the petitioners will come from Ghaziabad and indulge in the Marpeet in the house of respondent No. 3. It is obvious that intention is to harass the petitioners so that, the petitioners may be forced to attend a litigation far away from their residence at Gonda which will cause considerable inconvenience and discomfiture. The Magistrate should also have realised that there is no injury report and the matter is some what trivial in nature and this circumstance also should have alerted him to the possibility of issuing the process of Court as a measure of reprisal.;