JUDGMENT
J.G. Chitre, J.
1. The petitioner is hereby assailing correctness, propriety and legality of the order passed by Chief Judicial Magistrate, Raigad-Alibag dated 26.9.94 in the matter of Regular Cri. Case No. 130/94 by which he dismissed the application moved by the petitioner for discharging him in view of provisions of Section 245(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for convenience).
2. Few facts need to be stated for unfolding the controversy which resulted in the complaint in which the application was moved for praying the discharge. House No. 1349 situated at Alibag happens to be belonging to the present petitioner wherein respondent No. 1, according to him, was residing as tenant. The notice issued by Municipal Council, Alibag (Annexure H) shows that the Chief Officer of the Municipal Council, Alibag asked the Executive Engineer, P.W.D. Alibag to survey the said building and to find out whether it has come to the stage of dilapidation or not because the Municipal Council called both, the petitioner and respondent No. 1, for hearing for coming to the conclusion as to why said building should not be demolished as it is dangerous to life of the members of public and their property adjacent to it. The said notice show that the petitioner attended the said hearing but respondent No. 1 did not attend and contended that the said building was not in dilapidated condition but it needed some minor repairs and nothing more than that. The Executive Engineer, P.W.D. Alibag submitted a report and brought to the notice of the Municipal Council that the said building was in dilapidated condition. The Chief Executive officer of Municipal Council came to the conclusion that it was dangerous to public safety as it had supports at number of places and they are damaged substantially. In fact the said notice shows that the pillars were rotten and were affected by termites. Municipal Council opined that the said building was dangerous to human life and public property and it was necessary to demolish it in public safety. A notice was issued to respondent No. 1 and thereafter it was demolished.
3. Respondent No. 1 filed a complaint with PSI Alibag Police Station on 28.6.1994 alleging that the petitioner demolished the said building through Alhad, the Chief Executive Officer of the Municipal Council, Alibag and dragged him, his wife, children from the said house on Road. Not only that, he alleged that the petitioner assaulted them, abused them and threatened them by declaring that he would kill them. It appears that the police did not take the cognizance of the said complaint. Therefore, he filed a private complaint in the Court of Chief Judicial Magistrate, Alibag who took the cognizance of the said complaint and issued process against the petitioner in context with the offences punishable under provisions of Section 339, 349, 427, 441, 442, 451, 452, 445, 504, 506 of IPC as they were mentioned in the complaint filed by Respondent No. 1.
4. The petitioner submitted an application for recalling the said order of issuing process which was rejected by the learned Magistrate. Thereafter he filed an application in view of Section 245 of the Code for discharging him and in support of the said application submitted the copies of the following documents.
1) a notice of demolition sent by Municipal Council, Alibag.
2) the notice sent by respondent No. 1 to Chief Officer of Municipal Council, Alibag.
3) the reply sent by the said officer to said notice.
4) the copy of the plaint of the civil suit filed by respondent No. 1 against the petitioner.
5) the copy of the plaint of the suit filed by the present petitioner against respondent No. 1, etc.
It was urged that in view of contradictory statements made in those documents and the discrepancies indicated by those documents, on the part of respondent No. 1, the present petitioner be discharged. The learned Chief Judicial Magistrate came to the conclusion that the offences were prima facie made out against the petitioner in view of Sections 427, 504, 506, 451, 452, 453 of IPC and that is the subject matter of challenge in the present petition.
5. Shri S.R. Chitnis, pointed out, the discrepancies on the part of respondent No. 1 from the above mentioned documents and submitted that the respondent No. 1 (original complainant) was prone to make any sort of statements and allegations made by him in the complaint have been contradicted by him in various documents and, therefore, the learned C.J.M. should have discharged the petitioner by entertaining the prayer made by him for discharge, which was within the jurisdiction of the learned C.J.M. By relying on the judgment of the Supreme Court in Satish Mehra v. Delhi Administration and Anr.. reported in 1996 SCC (Cri) 1104, he submitted that this Court be pleased to discharge the present petitioner by allowing the present writ petition. These are the main features of the submissions advanced on behalf of the petitioner.
6. Shri Prakash Naik, counsel appearing for respondent No. 1, submitted that the Court is to see whether prima facie case has been made out or not and the learned Chief Judicial Magistrate has done it in lawful manner. By placing reliance on the judgment of the Supreme Court in the matter of State of Haryana and Ors. v. Bhajan Lal and Ors., reported in 1992 SCC (Cri.) 426, he submitted that in rarest of rare cases this Court should interfere in the jurisdiction of the trial Court which is entrusted to conduct a trial in accordance with law. He submitted that the points raised by Shri Chitnis are to be probed by the trial Court during the trial and, therefore, it cannot be said at this stage in view of points raised by Shri Chitnis that the present petitioner is entitled to get the discharge. This is the sum and substance of the submissions advanced on behalf of respondent No. 1 by him.
7. Shri Saste, Additional Public Prosecutor, submitted that this Court be pleased to pass the appropriate order as it finds proper.
8. In the Satish Mehra’s case (supra), the Supreme Court held that consideration which should weigh with the Sessions Court at the stage of framing of charge has been well designed by Parliament through Section 27 of the Code. Section 28 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed an offence, the procedure laid down therein has to be adopted. When those two sections are put in juxtaposition with each other the test to be done becomes discernible: Is there sufficient grounds for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is whether there is “sufficient ground for proceeding”.
9. The Supreme Court further held that similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At this two stages the Code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage. Here the ‘ground’ may be any valid ground including insufficiency of evidence to prove the charge.
10. If further held that object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time for the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would cinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, the sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code. But when the judge is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. Most of the Sessions Courts in India are under heavy pressure of workload. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time, it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.
11. In the case of Madhvrao Jivaji Rao Scindia and Anr., etc., v. Sambhajirao Chandrojirao Angre and Ors., etc. , , the Supreme Court held that the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
12. Section 245 of the Code provides:-
“(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”
13. Therefore, this Court will have to examine the material placed before the learned CJM by the present petitioner urging for his discharge. The notice which has been sent by the Municipal Council Alibag shows that the said house was in total dilapidated condition. The pillars were infested by termites, were rotten and were likely to give way at any time causing damage, injury to human life and public property. The titles were also in broken condition. The structure was having supports given at number of places. For getting sure about this, the Executive Engineer of P.W.D., Alibag was asked to survey the said house and give report by the Municipal Council, Alibag and he reported the same condition of the said house. The notice which has been sent by the Municipal Council, Alibag shows that the Chief Officer of Municipal Council, Alibag satisfied himself about the necessity of demolishing the said structure for avoiding danger to public at large. He concluded that it was in the interest of public safety to demolish it and by following the due procedure of law, gave the intimation in that context to respondent No. 1. It is pertinent to note here on two occasions opportunity was given to respondent No. 1 but he absented himself and put forth the excuse that the said structure required minor repairs and nothing more than that. Still he is contending that way. If these are the minor repairs needed and if these are small defects in the structure, nothing can be imagined as to what would be the dangerous thing according to the view point of respondent No. 1. The Chief Officer of Municipal Council, Alibag was not to accept his contention and, therefore, he decided to demolish it and sent the Municipal Council force for demolishing it and this action on the part of the Municipal Council, Alibag gave birth to the incident on 18.6.1994, which is the subject matter of the complaint.
14. In the complaint, the respondent No. 1 alleged that the petitioner went himself inside the house and by dragging the respondent No. 1, his wife and children brought them on road. Not only that, he asked the hamals to take out the belongings of respondent No. 1 from the said house and made them to store them in the truck which was on the road. Even according to the allegation made by the complainant in the complaint it took place in presence of the staff members of the Municipal Council, Alibag and the police force. He alleged that during the said incident the petitioner gave him a threat of killing.
15. Even at the time of taking the cognizance, the Magistrate is bound to apply judicial mind and to consider whether a prima facie case qua the offences alleged has been made out or not. He has to give a consideration in reasonable manner and in a rational way. He is not to be carried away by the allegations made by the complainant in the complaint. He has to apply his judicial mind. It has not been done at initial stage because the process has been issued in context with the sections quoted in the complaint as they are. There was absolutely no application of judicial mind.
16. After the process was issued, as submitted by Shri Chitnis, an application was moved to the learned C.J.M. for recalling his order of issuing the process which was turned down and thereafter the application was moved in view of Section 245 of the Code for discharge and at that time above mentioned documents were produced along with the application and the attention of the learned Magistrate was drawn to those documents and he was invited to consider seriously the deficiencies in the allegations made by respondent No. 1 in the complaint. The learned Chief Judicial Magistrate has passed an order which runs into three pages. But prima facie it does not show that he has applied his judicial mind as required and as indicated by Section 245 of the Code. When he was called on to apply judicial mind and to scan out the material for the purpose of coming to the conclusion whether the present petitioner should be discharged or not, it was necessary for the learned Magistrate to give a serious consideration to the submissions advanced on behalf of the petitioner and the deficiencies brought to his notice qua the allegations made in the complaint by the complainant – respondent No. 1 – and the deficiencies brought forth by the documents which were annexed to the said application.
17. Whenever the complaint is presented in the Court in view of provisions of Section 200 of the Code, the Magistrate is obliged to examine the complainant upon oath and the substance of such examination shall be reduced to writing and shall be signed by the complainant and also by the magistrate. It is pertinent to note that word “examination’ has been used in Section 200 of the Code which means that the Magistrate is obliged to put questions to such complainant and to elicit the answers from him. This section enjoins a judicial duty to be performed and it requires application of judicial mind while examining such complainant on oath. The said work is not to be left to the clerk working in such Courts. It is to be noted that when such complainant is examined on oath by Court, he is interrogated for such examination, the truth is very likely to surface because complainant knows that he is being examined on oath by the Magistrate. Generally the complaints are drafted by lawyers or their clerks at the say of the complainant and such formulated conversation is presented before the Magistrate when the complaint is filed. Therefore, in that context also such examination is the best way of surfacing the truth on record. In such examination the complainant in all probability tells the truth and truthful version of the incident which enables the Magistrate to consider by application of judicial mind whether process is to be issued or not.
18. This aspect is to be kept in mind in this case also because the allegations quoted in the complaint which have been presented before the Court are substantially in contradiction with the substance of the version of the complainant on oath recorded by the Magistrate. In complaint, respondent No. 1 has stated in paragraph 3 that the present petitioner entered in his house and with violence dragged respondent No. 1, his wife, daughter, son from the house to road. In the substance of the examination on oath, the complainant stated before the Magistrate that respondent No. 1 -original complainant- his wife, daughters and son were dragged by police and not by the present petitioner. In the complaint he alleged that complainant took away his belongings from the house through hamals but in his examination he also said that the present petitioner also took up some of the articles. These discrepancies are going to the root and, therefore, the learned C.J.M. should have considered them initially, if not, after the application was submitted praying for discharge. But the learned Magistrate has not considered it and, therefore, this Court has to take the cognizance of that in pursuance of the submissions advanced on behalf of the petitioner.
19. While considering material which has been placed before him, the Magistrate is obliged to consider them keeping in view the normal human experience and by informing himself about the human behaviour in normal course of human transactions. The probabilities have to be considered. The common course of human conduct has also to be considered while considering such material. The learned Magistrate was required to keep it in mind that when, as alleged by the complainant, the present petitioner threatened him in the police station and when he was to get the said house demolished at the hands of municipal council’s staff members and police personnel, why a person who retired as DIG should go personally to the scene of incident and expose himself to all sort of risk. Ordinarily, naturally, and normally, he will not, when he was intending to get that work done through the police personnel and staff members of the Municipal Council, Alibag. Such a person was not expected to enter in this scuffle and to pick up the articles from the house of respondent No. 1 – the original complainant – by himself when he was having the Municipal Council’s staff members and police personnel at his command. A white color person would not rush in the scuffle exposing him to all sort of eventualities including getting injured in the scuffle. Normal human behaviour does not indicate that. A Magistrate or Judge cannot seclude himself from knowledge of normal human conduct and behaviour while he is performing the judicial performance of considering the material on record or appreciating the evidence, as the case may be. The learned C.J.M. was obliged to keep in view seriously all these things when he was called on to consider them seriously. He has failed to do so.
20. The Magistrate, the Judge is bound to consider or appreciate the allegations, material or the evidence in view of the language used in penal provisions of the law concerned.
21. Section 504 speaks of offences in relation to “insult” and “provocation” and again “breach of peace”. The plain language of the section if read, shows that whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence shall be punished with imprisonment of either description of a term which may extend to two years, or with fine, or with both. Therefore, in a complaint the complainant should allege that the words, gestures were made by the accused with the intention of insulting the complainant. Not only that, they were sufficient enough to give provocation to complainant to such an extent which would make him to commit the breach of public peace or commit any other offence. The utterances or the gestures should be sufficient enough to bring home these important ingredients of Section 504 IPC. It is only thereafter the offence under Section 504 could be spelled out. It is necessary, because at least in India many words are, abuses are, gestures are made casually without really meaning anything from it. Even abuses are used between friends without thereby meaning anything. Number of words are used and uttered without meaning anything, in casual behaviour, by number of persons in common humanly transactions. Unfortunately, the brother of the wife has been in common parlance called by a word which otherwise means an abuse. Therefore, it is necessary to note the exact context in which the utterances were used and gestures were made. Therefore, it becomes the duty of the complainant to make out a case that the accused uttered such words with intention to insult him and those words were sufficient enough to cause provocation to such an extent which would make him to commit the breach of public peace or to commit any other offence. The Magistrate is to consider whether such allegations are made in the complaint or whether such a case has been made out in the examination taken on oath by him in view of Section 200 of the Code.
22. In the present case, the complaint, the substance of the examination recorded by the Magistrate does not make out a case for an offence punishable under Section 504 of IPC. In fact the process should not have been issued initially for such an offence and surely the present petitioner should have been discharged from the allegation of commission of that offence when the learned C.J.M. was called on to do the adjudication on this point.
23. Section 506 revolves around the definition given in Section 503 of IPC which reads:-
“Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.”
Here the allegations have been hurled at random in a scattered way. No ingredients as indicated by Section 503 defining criminal intimidation has been brought in picture either by the complainant or the substance of the examination recorded by the magistrate in view of Section 200 of the code. The intention is very much lacking which is the soul of the definition of criminal intimidation. The intention can be gathered by the words uttered, sentences uttered and the act which follows such utterances. It can be gathered by surrounding circumstances also. How a person is expected to give such threats, intimidation to another in the presence of police personnel? He would not do so when he happens to be a retired top ranking police officer at least. But in the complaint such allegations have been made and the learned C.J.M. has not given due consideration to it as law requires. Therefore, in fact initially the process should not have been issued for that offence and when the learned C.J.M. was called on to adjudicate, he should have discharged the present petition from the allegation of commission of such an offence.
24. Section 425 of IPC defines “mischief” which reads :
“Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes it value or utility, or affects it injuriously, commits “mischief”.
Explanation 1- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2 – Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.”
26. In the present case, even as per the allegations of the complainant- respondent No. 1 – the said house was demolished by Municipal Council, Alibag and not by the present petitioner and in fact a notice was issued to respondent No. 1 in that context. Not only that, he was called on for hearing twice. But respondent No. 1 – the original complainant – absented himself. Therefore, how it can be even inferred that the present petitioner demolished the said house? The said house has been demolished by Municipal Council, Alibag and that too through its staff members under police protection. When that was so, what was the need for the present petitioner to go inside the house and to snatch out the articles belonging to the complainant as alleged by him. But, even in respect of these allegations, the complainant’s version its contradictory and discrepant as shown by the documents executed by him. The notice, the complaint, the substance of examination, the plaint all make out different pictures.
26. When according to the allegation of the complaint, Petitioner threatened the respondent No. 1 in police station and told him to accept some money and to go anywhere, when that was the attitude of petitioner why he should normally go to the spot and snatch out the articles belonging to respondent NO. 1 – the original complainant – and put them through hamals in the truck. A person who has been alleged to have animosity would not do such obliging act. The flippantness of the allegation was prima facie noticeable but the learned Magistrate has failed to notice it and to give due weightage to it. The learned Magistrate should have discharged the present petitioner from the charge of committing that offence.
27. The discussion above, leads to perusal of definition of Section 451 which reads:
“Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine, and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.”
As indicated by above discussion, the present petitioner was entitled to be exonerated from the charge of offence indicated by Sections 427, 504, 506 of IPC. When that was so, the allegations made in the complaint are lacking the important ingredients indicated by provisions of Section 451 and that of committing the house-trespass with the intention of committing any other offence. The trespass has to be with the intention of committing the offence. If not, it should be a criminal and culpable trespass. Otherwise the alleged trespass would assume the nature of civil trespass.
28. That leads to consideration of the offence indicated by Section 452 and 453. Section 452 is for house-trespass which has been committed after having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in bear of hurt, or of assault, or of wrongful restraint. The complainant could not make out any case for assault, criminal intimidation, wrongful restraint. He could not make out the case that the present petition had made the preparation for committing those offences. When that was so, how an offence could be spelled out for being punished in view of Section 452 of IPC? There was no case made out for commission of any offence as indicated by discussion above. No case was made out for preparation or for showing the intention. The complainant did not make out a case for lurking house trespass or trespass or house breaking. Therefore, Section 452 and 453 were not at all attracted.
29. The learned Chief Judicial Magistrate when required to give consideration to all these aspects by a specific prayer made by the present petitioner, was obliged to consider all these important facets of the matter and was required to come to a correct conclusion which was consistent with legal provisions. When the complainant did not make out a case for any offence for which the present petitioner was to face a trial, it was necessary for the learned Chief Judicial Magistrate to consider it seriously for coming to a conclusion whether he should proceed with the trial further or should discharge the present petitioner, the accused.
30. Unfortunately, these days there is spate of litigation in every Court. The inflow of complaints, prosecutions is on increasing trend. There is no corresponding disposal of the cases. Unfortunately, the tendency is growing to vindicate personal grievances by filing the lis in the Courts and settling the score. Unfortunately, it puts the unbearable burden on judiciary as a whole, judicial system as a whole and finally on public exchequer. The arrears of pending cases has already assumed fearsome significance. The experience is telling that the means for disposal are very much inadequate. The cupboards are finding themselves insufficient to accommodate the files. In such situations all the Courts are now required to give a serious consideration whether flippant, unnecessary, prosecutions should be permitted to be continued in the Court for wiping out the arrears of pending cases. Lok Adalats have also been established as alternative remedy for disposal of the cases. Therefore, whenever possible the Courts should give a serious consideration for wiping out unnecessary litigation while reassessing the situation at relevant intervals, stages, suo moto, whenever moved by the litigants. Maximum encouragement should be given for amicable settlement of the disputes and suits prosecutions. Therefore, keeping in view the observations of the Supreme Court in Madhavrao Scindia’s case and Satish Mehra’s case (supra) and other number of cases, the cases which are not fit to be continued, the litigations which are not fit to be continued should be wiped out by taking courageous bold steps suo moto. When that is so, the Magistrates and Judges should not feel any hesitation in adjudicating whenever called on by the litigants, being specially moved by the applications at various stages.
31. In the present case, the learned C.J.M. Alibag has failed to do it when he was specially moved by the present petitioner in this context. When a prayer was made, when the material was placed before the learned C.J.M. with a prayer to discharge the present petitioner, the learned C.J.M. Alibag should have allowed that application and should have discharged the present petitioner. Unfortunately, that has not been done by him and, therefore, this Court finds no hesitation in exercising the jurisdiction conferred on it by provisions of Section 482 of the Code and Articles 226 and 227 of the Constitution of India.
32. Thus, the petitioner is allowed. The petitioner stands discharged and exonerated from the said prosecution. He need not attend the said court as the said prosecution has been quashed. The bail bond, if any, furnished by the petitioner, stand cancelled. No order was to costs. Rule stands made absolute.