Issue and Quashing of Process

India– To ensure a fair trial, it is a mandate that the proper parties be impleaded. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi (Supreme Court of India, 2009) it was observed that it is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.

In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi (Supreme Court of India, 1976) the court stated in an illustrative manner that 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 statements of the 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 and the like.


Author: Vikrant Narayan Vasudeva
Photo by angus mcdiarmid/ CC BY-NC 2.0

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