ASHOK KUMAR v. STATE OF RAJASTHAN — 1999 DIGILAW 322 (RAJ)

Judgment D. C. DALELA, J. ( 1 ) ONE Ratanchand filed a complaint before the learned ACJM No. 3, Jaipur City, Jaipur, for taking action, against the accused-petitioners, for having committed offences u/ss 420, 467, 468, 471, 384, 453 and 120b, IPC. The learned Magistrate forwarded the complaint to the Police Station concerned, u/s. 156, Cr. P. C. A case was registered with the police. After the necessary investigation, the police found that the accused-petitioners have prima facie committed offences u/ss. 147,341 and 323, IPC and, therefore, a charge-sheet (challan) was submitted before the learned Magistrate. The learned Magistrate, on the same date, received the challan from the police, against the accused-petitioners. He took cognizance against them, for offences u/ss. 147,341 and 323, IPC. The substance of accusation was read over to them. They pleaded not guilty. The learned Magistrate proceeded to summon the prosecution witnesses, for the evidence. Now, the case is fixed for recording of the evidence on 17-2-1999. Feeling aggrieved thereby, this petition u/s. 482, Cr. P. C. has been preferred by the petitioners. ( 2 ) I have heard the arguments of both the sides. ( 3 ) THE main grievance of the accused-petitioners, seems to be that the learned Magistrate has taken cognizance and proceeded with the trial, summoning the prosecution witnesses, without any opportunity being given to them, to show that no case is made out against them. ( 4 ) IN the case of K. M. Mathew v. State of Kerala and Anr. . Honble The Supreme Court has observed as under:"if one reads carefully the provisions relating to trial of summons cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been 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. " ( 5 ) EVIDENTLY, it is open to the accused-petitioners to move the Magistrate concerned to show that cognizance ought not to have been taken, and thereupon, the Magistrate is competent to drop the proceedings, if he is satisfied that there is no offence, for which, the accused-petitioners could be tried. The Magistrate is competent to drop the proceedings, and the order of taking cognizance and proceedings of the trial would not come in his way. In the present matter in hand, the case is triable as a summons-case, section 258, Cr. P. C. provides that in any summons-case, instituted otherwise than upon a complaint, the Magistrate, for the reasons to be recorded by him, stop the proceedings at any stage, without pronouncing any judgment. Therefore, evidently, if the Magistrate finds that on reconsideration of the complaint and material on record, there is no offence, for which, the accused could be tried, he is empowered to stop the proceedings u/s. 258, Cr. P. C. ( 6 ) HAVING regard to the above decision of Honble. The Supreme Court and the I provisions of law, I am of the opinion that the accused-petitioners should approach the concerned Magistrate and move an application, to drop the proceedings, by raising all the objections, which they want to raise, and upon doing so, the learned Magistrate may consider the matter, and if he finds that the proceedings require to be dropped, he may do so. ( 7 ) ACCORDINGLY, it is directed that the accused-petitioners may move the learned Magistrate concerned, for dropping/stopping the proceedings, by taking all the objections, which they want to take. In case, such an application is moved before the learned Magistrate, he shall consider the matter, and if he is satisfied that there is no offence, for which, the accused-petitioners could be tried, he is competent to drop/stop the proceedings. ( 8 ) WITH such directions, the petition is disposed of. Order accordingly. .