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2005 DIGILAW 545 (RAJ)

Ishwar Lal v. State of Raj.

2005-02-17

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-Both these criminal revision petitions under Section 397/401 CrPC are directed against the order dated 4.2004 passed by Additional Chief Judicial Magistrate No. 3, Udaipur (for short the trial Court hereinafter) in Criminal Misc. Cases No. 1313/2003 and 1314/2004 whereby the trial Court dismissed the application filed by the accused-petitioner under Section 204(2) CrPC. Aggrieved by the order impugned dated 4.2004, accused-petitioner has filed the instant criminal revision petitions. 2. The matter came up before this Court on 12.2005 and at the request of Counsel for the petitioner, it was adjourned to 16.2.2005. On 16.2.2005, no one appeared on behalf of petitioner and the matter was adjourned to today. Today also, no one appears for the petitioner. 3. I have heard learned Counsel appearing for the contesting respondent No. 2 and carefully gone through the revision petitions and the order impugned. 4. Facts giving rise to the instant revision petitions are that respondent No. 2 filed a complaint against the petitioner for the offence under Section 138 of the Negotiable Instrument Act, 1881 (for short `the Act hereinafter) before the trial Court. The trial Court took cognizance of offence on 29.2003 against the petitioner and issued the process. The petitioner appeared before the trial Court on 11.2003 and was enlarged on bail. The matter was posted to 9.1.2004. On 9.1.2004, the complainant-respondent No. 2 and his Counsel were present before the trial Court, however, accused-petitioner failed to appear and remained absent. His personal exemption was sought through his Counsel. The Counsel appearing for the accused-petitioner also expressed the wishes of the petitioner to compromise the matter and, therefore, a long date was sought. The matter was posted to 4.2004 for compromising the matter and reading over the substance of the charge. On 4.2004, the complainant and his Counsel were present, however, accused-petitioner again absented from the Court. His exemption from personal appearance before the Court was sought through his Counsel, which was allowed. An application under Section 204(2) CrPC was filed by the Counsel appearing for the petitioner. The matter was adjourned. That application came to be dismissed by the trial Court on 4.2004. The substance of charge was read over to the petitioner through his Counsel, who denied the charge and sought trial. The matter was posted to 15.2004 for recording of statement of complainant. On 15.2004, the respondent-complainant made statement in examination in chief . The matter was adjourned. That application came to be dismissed by the trial Court on 4.2004. The substance of charge was read over to the petitioner through his Counsel, who denied the charge and sought trial. The matter was posted to 15.2004 for recording of statement of complainant. On 15.2004, the respondent-complainant made statement in examination in chief . However, at the request of the Counsel appearing for the accused-petitioner, the matter was adjourned for cross-examination of the complainant. Despite several opportunities, the accused-petitioner did not cross-examine the complainant. The order dated 4.2004 came to be challenged by way of the instant revision petitions, which were filed before this Court on 5.2004. After filing of the instant revision petitions, on several occasions, the matter was adjourned. Before the trial Court, adjournment is being sought on behalf of the petitioner for cross-examining the complainant on the ground that a revision petition challenging the order dated 4.2004 has been filed before this Court. 5. It is contended by the learned Counsel for the respondent that respondent has already produced his evidence and does not want to produce any more evidence except the complainant whose statement in examination in chief had already been completed and it is the petitioner, who is not cross-examining him despite complainant being present before the Court for cross-examination and, therefore, no occasion arises for filing the list of witnesses. Section 204(2) of the Code of Criminal Procedure ( for short `the Code hereinafter) 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. In the instant case, summons and process were issued by order dated 29.2003. Thereafter, the accused-petitioner himself appeared and on several occasions, the matter was adjourned at the request of the petitioner. The complainant made statement before the trial Court on 15.2004 and since then the matter has been adjourned on several occasions at the request of the accused-petitioner and complainant has not been cross-examined. In the instant case, the summon has already been issued, served and complied by the petitioner. Therefore, it is not open for the petitioner to seek quashing of the proceeding on the ground that a list of witnesses was not filed, more so proceeding cannot be quashed. Only summoning or issuance of process can be postponed. In the instant case, the summon has already been issued, served and complied by the petitioner. Therefore, it is not open for the petitioner to seek quashing of the proceeding on the ground that a list of witnesses was not filed, more so proceeding cannot be quashed. Only summoning or issuance of process can be postponed. The stage of issuing the summon or the process had already been crossed and, therefore, this point no more survives. In compliance of the summons, the accused appeared before the Court and the statement of complainant has already been recorded. In the circumstances, in my view, the trial Court was justified in dismissing the application filed by petitioner under Section 204(2) of the Code by the order impugned. More so, the order dated 29.2003 taking cognizance and issuing process is not permissible for the Magistrate to recall or review. 6. In Adalat Prasad vs. Rooplal Jindal & Ors., JT 2004 (7) SC 243, Honble Supreme Court has 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 and 202, the order of 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." 7. The view taken by the Honble Supreme Court has been reiterated by a Three Judge Bench of Honble Supreme Court in Subramanium Sethuraman vs. State of Maharashtra & Anr., 2004 CrLJ 4609 , which reads as under:- "Issuance of process under Section 204 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, same 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." 8. 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." 8. In this view of the matter, I do not find any error, illegality or perversity in the orders impugned. Hence, both the revision petitions lack merit and are hereby dismissed accordingly.