JUDGMENT 1. - This miscellaneous petition is directed against the order dated 6-2-93, passed by the Additional Chief Judicial Magistrate, Jaitaran, by which the learned Additional Chief Judicial Magistrate dismissed the application under Section 204 Cr.P.C,, filed by the petitioners, and proceeded with the matter. 2. Complainant Dana Ram, on 12-2-80, filed a complaint in the Court of the Additional Chief Judicial Magistrate, Jaitaran, against the present petitioners. The learned Magistrate, by its order dated 7-8-80, took cognizance against the petitioners for the offences under Sections 147, 427 & 447 1.P.C. and issued summons. The service on the respondents could not be effected and when the service was effected an application under Section 204 Cr.P.C. was moved on behalf of the petitioners for dropping the proceedings. The learned Magistrate dismissed the application filed by the petitioners under Section 204 Cr.P.C. on the ground that as no revision against the order dated 7-8-80 has been filed by the petitioners and the case remained pending for 11 years and the cognizance has been taken after taking into consideration the relevant facts on record, therefore, there is no change in the circumstances after taking the cognizance. 3. It is contended by the learned counsel for the petitioners that the order taking cognizance was passed ex-parte and, therefore, when an application under Section 204 Cr.P.C. was moved before the learned Magistrate, bringing it to the knowledge of the Court the relevant material to show that no case is made- out against the accused-petitioners then it was necessary for the learned Magistrate to have considered the case of the petitioners on merit and should not have dismissed the application only on the ground of delay or on the ground that the cognizance was taken after considering the relevant material on record. The learned Public Prosecutor, on the other hand, has supported the order passed by the Court below. 4. I have considered the submissions made by the learned counsel for the parties. 5. The learned Public Prosecutor, on the other hand, has supported the order passed by the Court below. 4. I have considered the submissions made by the learned counsel for the parties. 5. The order taking cognizance is an ex-parte order, which is passed by the trial Court on the basis of the material available on record, without giving any opportunity of hearing to the accused and, therefore, when the accused puts in appearance in response to the summons issued by the learned Magistrate and raise an objection that the allegations made in the complaint and the evidence collected by the Investigating Agency or by the Court, do not constitute any crime involving the accused and satisfy the Court that if the relevant material would have been taken into consideration, the process against them could not have been issued and if such thing is brought to the notice of the Court then the Court is required to consider the arguments advanced by the accused and he is competent to drop the proceedings. If it is satisfied on reconsideration of the complaint and the material available on record that no offence for which the summons have been issued, has been made-out, on the basis which the accused could be tried, it can, then, drop the proceedings. It is the judicial discretion vested in the Court and no specific provisions are required for the Magistrate to drop the proceedings and issue the process. The order issuing process is an interim order. Merely because the process have already been issued, it cannot act as a bar to drop the proceedings if the complaint and the evidence collected, on the very face of it do not disclose any offence against the accused. No person can be tried without a prima facie case against him and the Magistrate cannot refuse to reconsider the case, only on the ground that the cognizance has already been taken and no fresh material is available on record. The view, taken by me, is based on the judgment of the Hon'ble Supreme Court rendered in : K.M. Mathew v. The State of Kerala and another, UT 1991 (4) SC 464 . 6. In this view of the matter, the order, passed by the Magistrate, deserves to be quashed. 7. In the result, miscellaneous petition, filed by the petitioners, is allowed. 6. In this view of the matter, the order, passed by the Magistrate, deserves to be quashed. 7. In the result, miscellaneous petition, filed by the petitioners, is allowed. The order dated 6-2-93, passed by the learned Additional Chief Judicial Magistrate, Jaitaran, is set-aside and the learned trial Court is directed to re-consider the case of the petitioners and dispose of the application under Section 204 Cr.P.C., filed by the petitioners, in accordance with law in the light of the observations made above, after giving an opportunity of hearing to the petitioners.Petition allowed. *******