Criminal Procedure Code 1973

When the Order  of the Magistrate issuing process against the accused can be quashed or set aside

In coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability or conviction of the accused and establishment of a prima facie case against him.

The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry u/s 202 which culminates into an order u/s 204.

Thus 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 statement of 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 or the like.

The above mentioned principles have been propounded by their Lordships of the Apex Court in the subsequent judgments as well, some of which are mentioned below:

1. State of Haryana and others Vs. Ch. Bhajan Lal and others,

2. Janata Dal Vs. H.S. Chowdhary and Others,

3. Union of India and others Vs. B.R. Bajaj and others,

4. Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another,

5. State of Himachal Pradesh Vs. Shri Pirthi Chand and another,

6 State of West Bengal Vs. Narayan K. Patodia, The import of the law laid down by the Supreme Court is that the High Court is under a duty while exercising its power u/s 482 of the Code of Criminal Procedure to examine whether the allegations made in the complaint or the statements of witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or not or whether the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.


Cases Referred