1991 (7) TMI 388 - HC - Indian Laws

Summary

Issues:
Challenge to order issuing process in Criminal Case No. 1004 of 1986 under Art. 227 of the Constitution read with S. 482 of the Criminal Procedure Code.

Analysis:
The complaint alleged that the petitioners, as Managing Directors and Senior Officers of a company, trespassed on the complainant's property, demolished his house, and carried away the debris. The complainant claimed the accused were motivated by his refusal to sell the property to them. The Magistrate issued process against the accused under sections 447, 379, and 427 of the Indian Penal Code, which was challenged in this petition.

The petitioner's counsel argued that cognizance can only be taken of an offense and not of the particulars of the offenders, citing a judgment of the Calcutta High Court. He contended that the policy of the Criminal Procedure Code indicates that an offense can be taken cognizance of only once, even during the trial, under Section 319 of the Code. The court agreed with this interpretation, emphasizing that the court takes cognizance of the offense itself, not just the particulars of the offenders.

The counsel further argued that allowing the Magistrate to take cognizance of the same offense a second time would prejudice the petitioners. He highlighted that the offenses alleged in two complaints were identical, and permitting the Magistrate to issue process in the second complaint without further examination of evidence would be an abuse of process. The court agreed, noting that invoking inherent powers under section 482 of the Code of Criminal Procedure was necessary to prevent such abuse.

The respondent's counsel argued that the petitioners, if found guilty in the trial of the first complaint, could still be proceeded against under Section 319 of the Code. However, the court held that the proceeding against the petitioners in Criminal Case No. 1004 of 1986 should be quashed to prevent potential prejudice and abuse of process.

In conclusion, the court made the rule absolute in terms of prayer (a) with no order as to costs, quashing the proceedings against the petitioners in Criminal Case No. 1004 of 1986.