Judgment:
Abhijit Sinha, J.
1. This application under Section 482 Cr. P.C. at the instance of eight of the ten accused of Complaint Case No. 140 (C)/2002 (Tr. No. 837/2004) presently pending in the Court of Shri Prem Chand Pandey, Judicial Magistrate. First Class, Buxar, is directed against order dated 13-7-2004 passed by Shri Gopal Jee, the learned Judicial Magistrate, IInd Class, Buxar, whereby he had taken congnizance of offences under Sections 148 and 323 I.P.C.
2. It appears that on the basis of the fardbeyan given on 13-5-1984 by one Sudama Singh (O.P. No. 2 herein) in respect of an alleged occurrence taking place earlier that day, Buxar (Town) P.S. Case No. 126/84 under various sections of the Penal Code and Section 27 Arms Act was registered wherein the police after due investigation submitted a final form on 19-11-1984 stating inter alia that a Title Suit and Criminal cases were going on between the parties. The police also recommended for prosecution of the informant under Sections 182/211 I.P.C. It further appears that the learned Court below having accepted the final form proceeded with the protest petition filed by the informant during the pendency of the investigation of the police case, as a complaint case and it was numbered as 326(C)/1984. However, the said complaint was dismissed for non-prosecution vide order dated 20-10-1986. It also appears that notwithstanding the dismissed of the complaint case, the said informant, after about 16 years filed another complaint petition on 29-1-2002 on the same set of facts which was numbered as 140 (C)/2002 and therein congnizance has been taken by the impugned order pursuant to an enquiry under Section 202 Cr. P.C.
3. It has been submitted on behalf of the petitioners that the instant complaint had been filed with ulterior motive to harass the petitioners. It has also been submitted that to entertain a complaint on the same set of facts which had been found to be false by the police in course of investigation and sixteen years after the dismissal of the complaint case was an abuse of the process of Court.
4. Admittedly, there is no bar in entertaining a second complaint petition by the same petitioners and on the same set of facts. What is of importance is to notice the language employed. The words 'whether'' or not there is sufficient ground for proceeding 'have been substituted for the words' ascertaining the truth or falsehood of the complaint in Section 202(1) Cr. P.C. The very scheme and purpose of these words was that at stage, it was not possible for the Magistrate to determine the truth or falsehood of the complaint, his only purpose was to see whether there was sufficient ground to proceed against the accused by summoning him. The only materials which the Magistrate may consider at this stage for arriving at the aforesaid satisfaction are (a) the complaint in writing, (b) the statement on oath of the complainant, (c) the statements of the witnesses of the complainant, if any, (d) the result of the enquiry or investigation, if any, made under Section 202, and (e) the statement made by the complainant under Section 161 Cr. P.C. if any. The object of the enquiry is, therefore, to see whether there is a prima facie case for issuing process against the accused and cannot be reduced to a trial to see whether the accused is guilty.
5. In the instant case it is an admitted position that Complaint Case No. 326(C)/ 1984 was not dismissed on merits but for non-prosecution. It is also an admitted position that complaint case No. 140(C)/2002 has been filed in respect of an occurrence taking place allegedly on 13-5-1984 and there is no explanation in the complaint for the delay of sixteen years and the fact of earlier police case and the complaint case has been suppressed purposely.
6. The learned Magistrate while taking cognizance appears to be remiss about the extraordinary delay in filing of the complaint petition and appears to have taken cognizance mechanically. The situation appears to be an abuse of the process of Court and cannot be sustained in law.
7. Accordingly, the application is allowed and the impugned order dated 13-7-2004 passed in Complaint Case No. 140(C)/2002 (Tr. No. 837/2004) is set aside.