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2005 DIGILAW 1585 (RAJ)

Babulal v. Aanpurna Sarees

2005-05-27

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the order dated 20.01.2004 passed by Additional Chief Judicial Magistrate, Balotra (for short the trial Court hereinafter) in Criminal Case 588/2002 whereby on an application filed by accused-non-petitioners, the trial Court dismissed the complaint filed by petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act hereinafter), even after taking cognizance of offence, discharged the accused-non-petitioners. Aggrieved by the order impugned, the petitioner-complainant filed the instant revision petition. 2. I have heard learned Counsel for the parties. Perused the order impugned and the record of the trial Court. 3. The facts giving rise to the instant revision petition are that the petitioner filed a complaint against non-petitioners under Section 138 of the Act on 09.05.2002. The trial Court recorded the statement of complainant, and after perusal of statement and the documents filed by the complainant, came to the conclusion that prima facie offence under Section 138 of the Act is made out against non-petitioners and took cognizance of offence and issued the process against them under Section 204 of the Code by issuing bailable warrants. During pendency of the proceedings, non-petitioners filed an application under Section 204 of the Code seeking quashing of the complaint. By order impugned, the trial Court dismissed the complaint on the ground of limitation. 4. It is contended by learned Counsel for the petitioner that once the trial Court took cognizance of offence by order dated 23.09.2002, thereafter, it was not opened for the trail Court to review or recall its order and dismissed the complaint. Chapter XV of the Code provides the procedure that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Section 201 of the Code provides the procedure by Magistrate not competent to take cognizance of the case. Section 201 of the Code provides the procedure by Magistrate not competent to take cognizance of the case. Section 202 of the Code provides that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct 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. Section 203 of the Code provides that if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. Section 204 of the Code provides that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-(a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. Sub-section (2) of Section 204 of the Code provides that no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. Chapter XVI of the Code relates to commencement of proceedings before Magistrates. Section 204 of the Code reads as under:- "204. Sub-section (2) of Section 204 of the Code provides that no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. Chapter XVI of the Code relates to commencement of proceedings before Magistrates. Section 204 of the Code reads as under:- "204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. (3) Ina proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87." Thus, it is clear that if in the opinion of the Magistrate taking cognizance of an offence, there exists sufficient ground of proceeding, and the case appears to be triable by him, process has to be issued against the accused for their appearance before the Magistrate. However, Sub-section 2 of Section 204 provides that no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. Thus, after considering the statement of the complainant and his witnesses on oath, if the Magistrate is of the opinion that there is no ground for proceeding, he shall dismiss the complaint, if the stage of Section 203 of the Code is crossed. The Magistrate taking cognizance finds that there is sufficient ground for proceeding, he may issue the process against the accused to summon them. The Magistrate taking cognizance finds that there is sufficient ground for proceeding, he may issue the process against the accused to summon them. Once the trial Court takes cognizance of offence and issues process under Section 204 of the Code, then the Magistrate has no jurisdiction to revert the provisions of Section 203 of the Code. The only provision in the Code for Magistrate to dismiss the complaint is Section 203 of the Code and once that stage has been crossed, cognizance of offence has been taken and process has been issued against the accused, then the Magistrate cannot recall or review the order taking cognizance and dismiss the complaint. The application filed by non-petitioners under Section 204 of the Code was misconceived inasmuch as after the Magistrate having been satisfied that there exists sufficient ground for proceeding against non-petitioners and taking cognizance of offence and issued the process, then under Section 204 of the Code, Magistrate has no jurisdiction to dismiss the complaint. 5. In Adalat Prasad vs. Rooplal Jindal & Ors., JT 2004 (7) SC 243, the Honble Supreme Court held as under:-"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." This view has been reiterated by Three Judges Bench of Honble Supreme Court in Subramanim Sethuraman vs. State of Maharashtra & Anr., 2004 CrLJ 4609 , wherein the Honble Supreme Court held that there being no provision under the Code for review of an order made by the same Court. 6. In Poonam Chand Jain & Anr. 6. In Poonam Chand Jain & Anr. vs. Fazru, 2005 CrLJ 100 , relying on Larger Bench decisions of Honble Supreme Court in Adalat Prasad vs. Rooplal Jindal, and in Subramanim Sethuraman vs. State of Mahrashtra (Supra), the Apex Court held that issuance of process under Section 204 of the Code is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory order, cannot be reviewed or reconsidered by the Magistrate, there being no provision under the Code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. 7. In view of the settled legal position, I am of the considered opinion that the trial Court fell in error in reviewing its earlier order taking cognizance dated 23.09.2002 by order impugned dated 20.01.2004 and, therefore, the order impugned is not sustainable and deserves to be set aside. 8. Consequently, the revision petition is allowed. Order impugned dated 20.01.2004 passed by Additional Chief Judicial Magistrate, Balotra in Cr. Case No. 588/2002 is hereby set aside that of order dated 23.09.2002 is restored. Stay petition also stands disposed of . Record of the trial Court be returned forthwith.