25 August 2004
Supreme Court
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ADALAT PRASAD Vs ROOPLAL JINDAL .

Case number: Crl.A. No.-000091-000091 / 2002
Diary number: 6548 / 2000
Advocates: RANJAN MUKHERJEE Vs B. KRISHNA PRASAD


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CASE NO.: Appeal (crl.)  91 of 2002

PETITIONER: Adalat Prasad                                                             

RESPONDENT: Rooplal  Jindal & Ors.                                               

DATE OF JUDGMENT: 25/08/2004

BENCH: N. Santosh Hegde, S.B. Sinha & A.K. Mathur  

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       This is an appeal by leave against the judgment of the High Court of  Delhi at New Delhi in Criminal Revision No.127 of 1995 whereby the High  Court allowed the said revision petition, setting aside the order of the trial  court dated 28.1.1995 and remanded the matter to the Court of Magistrate  for disposal in accordance with law. Brief facts necessary for the disposal of  this case are as follows :

       The 1st respondent herein filed a complaint under sections 120A,  120B, 405, 406, 415, 420, 463, 465 and 468 of the IPC against the appellant  and other respondents herein alleging that the respondents have cheated and  defrauded him. Taking cognizance of the said complaint on 26.5.1992 the  learned Metropolitan Magistrate summoned the appellants herein and other  accused by issuing process under section 204 of the Code of Criminal  Procedure (the Code) for offences confined to section 420 read with 120B  IPC.

       Being aggrieved by the said order of issuance of process the appellant  and some of the accused moved the High Court and the High Court in the  said petition directed the petitioners therein to move the trial court against  the order of summoning.  Pursuant to the said order of the High Court the  appellant herein filed an application purported to be under section 203  Cr.P.C. on 10.3.1993 and the learned trial Judge by his order dated  28.1.1995 after hearing the parties recalled the said summons.

       The said order of the learned Magistrate recalling the summons  originally issued by him was challenged before the High Court on the  ground that the Magistrate had no jurisdiction to recall a summons issued  under section 204 of the Code. The High Court by the impugned order has  allowed the revision petition holding that while the trial court was justified  in taking cognizance of the offences punishable under section 420 read with  120B IPC it erred in recalling the consequential summons issued because the  said court did not have the power to review its own order.  

       It is against the said order of the High Court as stated above, the  appellant is before us in this appeal.

       When this appeal came up for preliminary hearing on 13.11.2002  learned counsel appearing for the appellant relied on a judgment of this  Court in the case of K.M. Mathew v. State of Kerala & Anr. (1992 1 SCC  217) wherein it was held that it was open to the court issuing summons to  recall the same on being satisfied that the issuance of summons was not in  accordance with law. The court which heard this matter at the preliminary

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stage  doubted the correctness of the judgment in Mathew’s case (supra)  hence referred that case of Nilamani Routray v. Bennett Coleman & Co. Ltd.  (1998 8 SCC 594) to a larger Bench. However said case of Nilamani (supra)  got settled out of court hence the issue involved in Mathew’s case (supra)  was not decided by the larger Bench. Therefore on 3.12.2002 this Court  directed that the present appeal be placed before a 3-Judge Bench with a  view to consider the correctness of the law laid down by this Court in  Mathew’s case (supra). It is in this background this appeal has now come up  for our consideration.

       As noticed above it is the correctness of the view expressed by this  Court in Mathew’s case which is now to be considered by us.

       It was held in Mathew’s case (supra) that section 204 of the Code  indicates that the proceedings before the Magistrate commences upon taking  cognizance and issue of summons to the accused. When the accused enters  appearance in response to the summons the Magistrate has to take  proceedings under Chapter XX of the Code. It was further held that the need  to try the accused arises only when there is an allegation in the complaint  that the accused has committed the crime. Hence,  if there is no allegation in  the complaint involving the accused in the commission of the crime it is  implied that the Magistrate has no jurisdiction to proceed against the  accused. In that background this Court held that it is open to the accused   served with summons to plead before the Magistrate that the process against  him ought not to have been issued and if the Magistrate is satisfied with such   an argument, he may drop the proceedings on reconsideration of the  complaint on the ground  that there was no offence for which accused could  be tried. This Court further observed in Mathew’s case, such power is  Magistrate’s judicial discretion and no specific provision is required for the  Magistrate to drop proceedings or rescind the process. It also held that the  order of issuing process being an interim order and not a judgment, it can be  varied or recalled. The Court also held that the fact that the process  has been  already  issued is no bar to drop the proceedings,  if the complaint on the  very face of it does not disclose any offence against the accused.

It is thus seen that in Mathew’s case (supra) this Court held that after  issuance of summons under section 204 of the Code, it was open to the  Magistrate on being satisfied at the instance of the summoned accused to  reconsider its decision of issuing summons under section 204. This Court in  that case also held that the Magistrate issuing the summons  can do so only  on there being material to issue summons hence  summons erroneously  issued  can be recalled  by the Magistrate for which no specific provision is  required.  

Having heard the learned counsel for the parties and having  considered the judgment of this Court in the case of Mathew (supra) we are  unable to agree with the law laid down by this Court in the said case.  

If we analyse the reasons given by this Court in the said case of  Mathew then we notice that the said view is based on the following facts :

(a)     The jurisdiction of the Magistrate to issue process arises only if  the complaint contains the allegations involving the  commission of a crime;

(b)     If the process is issued without there being an allegation in the  complaint involving the accused in the commission of a crime  it is open to the summoned accused to approach the court  issuing summons and convince the court that there is no such  allegation in the complaint which requires his summoning;

(c)     For so recalling the order of summons no specific provision of  law is required;

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(d)     The order of issuing process is an interim order and not a  judgment hence it can be varied or recalled.

We will examine the above findings of this Court in the background  of the scheme of the Code which provides for consideration of complaints  by Magistrates and commencement of proceedings before the Magistrate  which is found in Chapters XV and XVI of the Code;

Section 200 contemplates a Magistrate taking cognizance of an  offence on complaint to examine the complaint and examine upon oath the  complainant and the witnesses present if any. If on such examination of the  complaint and the witnesses, if any, the Magistrate if he does not want to  postpone the issuance of process has to dismiss the complaint under section  203 if he comes to the conclusion that the complaint, the statement of the  complainant and the witnesses has not made out sufficient ground for  proceeding. Per contra if he is satisfied  that there is no need  for further  inquiry and the complaint, the evidence adduced at that stage has materials   to proceed,  he can proceed to issue process under Section 204 of the Code

       Section 202 contemplates: postponement of issue of process : It  provides that if the Magistrate on receipt of a complaint if he thinks fit, to  postpone the issuance of process against the accused and desires further  inquiry into the case either by himself or directs an investigation to be made  by a Police Officer or by such other person as he thinks fit for the purpose of  deciding whether or not there is sufficient ground for proceeding, he may do  so. In that process if he thinks it  fit he may even take evidence of witnesses  on oath,  and after such investigation, inquiry and the report of the Police if  sought for by the Magistrate and if he finds no sufficient ground for  proceeding he can dismiss the complaint by recording briefly the reasons for  doing so as contemplated under section 203 of the Code.

       But after taking cognizance of the complaint and examining the  complainant and the witnesses if he is satisfied that there is sufficient ground  to proceed with the complaint he can issue process by way of summons  under section 204 of the Code. Therefore what is necessary or a condition  precedent for issuing process under section 204 is the satisfaction of the  Magistrate either by examination of the complainant and the witnesses or by  the inquiry contemplated under section 202 that there is sufficient ground for  proceeding with the complaint hence issue the process under section 204 of  the Code. In none of these stages the Code has provided for hearing the  summoned accused,  for obvious reasons because  this is only a preliminary  stage and the stage of hearing of the accused would only arise at a  subsequent stage provided for in the latter provision in the Code. It is true as  held by this Court in Mathew’s case before issuance of summons the  Magistrate should be satisfied that there is sufficient ground for proceeding  with the complaint but that satisfaction is to be arrived at by the inquiry  conducted by him as contemplated under sections 200 and 202, and  the only  stage of dismissal of the complaint arises under section 203 of the Code  at  which stage the accused has no role to play therefore the question of the  accused on receipt of summons approaching the court and making an  application for dismissal of the complaint under section 203 of the Code  for   a reconsideration of the material available on record is impermissible  because by then Section 203 is already over and the Magistrate has  proceeded further to Section 204 stage.

It is true that if a Magistrate takes cognizance of an offence, issues  process without there being any allegation against the accused or any  material implicating the accused or in contravention  of provision of  Sections 200  & 202, the order of the Magistrate may be vitiated, but then  the relief an aggrieved accused can obtain at that stage is not by invoking  section 203 of the Code because the Criminal Procedure Code does not  contemplate a review of an order. Hence in the absence  of any review   power or inherent  power  with the subordinate  criminal courts, the remedy     lies  in invoking  Section 482 of Code.

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Therefore,  in our opinion the observation of this Court in the case of  Mathew (supra) that for recalling an order of issuance of process  erroneously, no specific provision of law is required would run counter to  the Scheme  of the Code which has not provided  for review  and prohibits  interference at inter-locutory   stages.  Therefore, we are of the opinion, that  the view of this Court  in Mathew’s case (supra) that no specific  provision   is required  for recalling an erroneous  order, amounting to one without  jurisdiction,  does not lay down the correct law.  

In view of our  above conclusion, it is  not necessary for us to go into  the question whether order issuing a process amounts to an interim order or  not.  

For the reasons stated above we are in agreement with the judgment of  the High Court impugned herein. This appeal fails and the same is  dismissed.