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2022 DIGILAW 1468 (ALL)

Moti Lal v. State of U. P.

2022-09-14

SAMEER JAIN

body2022
JUDGMENT : 1. Heard Sri Ratnesh Kumar Jaiswal, learned counsel for the applicants and Dr. S.B.Maurya, learned AGA-I, for the State. 2. The instant application has been moved on behalf of the applicants with the prayer to quash the entire criminal proceedings of Complaint Case No. 4 of 2019, under Section 498-A IPC and Section 3/4 Dowry Prohibition Act, pending in the court of Additional Civil Judge (Junior Division) Court No.5, Mirzapur as well as summoning order dated 30.9.2021. 3. The brief facts of the case for the purposes of present application are that opposite party no.2 is the wife of applicant no.3 and applicant no.1 is her father-in-law while applicant no.2 is her cousin father-in-law. Opposite party no.2 moved an application under Section 156(3) Cr.P.C. against the applicants on 11.10.2018 which was treated by the court below as a criminal complaint and after recording the statement of opposite party no.2 under Section 200 Cr.P.C. and her witnesses under Section 202 Cr.P.C. summons were issued against the applicants on 30.9.2021 under Section 498-A IPC and Section 3/4 Dowry Prohibition Act. 4. Learned counsel for the applicants submitted that he is pressing the instant application on the sole ground that without compliance of mandatory provisions of Section 204 (2) Cr.P.C. summons were issued against the applicants, therefore, summoning order dated 30.9.2021 is bad. 5. He draws the attention of the Court on the order sheet of the case which is annexed as Annexure-5 to the affidavit filed in support of the present application and submitted that the summoning order against the applicants was passed on 30.9.2021 and a week time was given to opposite party no.2 to provide the list of her witnesses. He further submitted that the order sheet dated 27.10.2021 shows that 26.11.2021 was the next date fixed and it was asked to opposite party no.2 to do pairvi, i.e., to provide the list of her witnesses and similar order was passed on 26.11.2021 and thereafter order sheet dated 16.12.2021, 14.2.2022 and 5.4.2022 shows that opposite party no.2 did not do any pairvi in this regard but in spite of that summons were issued and on 5.4.2022 bailable warrants were also issued against the applicants. 6. 6. Learned counsel for the applicants next submitted that as per Section 204 (2) Cr.P.C. no summons or warrants shall be issued against the accused under section 204(1) Cr.P.C. until a list of prosecution witnesses has been filed and, therefore, he submitted that provisions of Section 204(2) Cr.P.C. is mandatory and no summons could be issued to applicants unless opposite party no.2 filed the list of her witnesses and, therefore, the entire proceedings as well as summoning order passed against the applicants is bad. 7. Per contra, learned AGA submitted that there is no illegality in the summoning order issued against the applicants as provisions of Section 204 (2) Cr.P.C. is directory in nature and if the court below without complying the same issued summons to the accused persons, then it does not vitiate the proceedings. He further submitted that the list of witnesses at any time can be provided by opposite party no.2, the complainant. 8. Learned AGA further submitted that applicants cannot said that due to non providing the list of witnesses by opposite party no.2 great prejudice would cause to them and, therefore, the instant application is liable to be dismissed. 9. I have heard learned counsel for both the parties and perused the record of the case. 10. Admittedly, applicants were summoned under Section 204(1) Cr.P.C., under Section 498-A IPC and Section 3/4 Dowry Prohibition Act although, it appears that summons were issued to them without filing the list of prosecution witnesses by opposite party no.2, the complainant. Therefore, the question arises whether on this ground proceedings pending against the applicants can be vitiated and summoning order would become illegal. 11. Section 204 Cr.P.C. deals with the issue of process and runs as follows: "(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. (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) In a 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." 12. As per Section 204 (2) Cr.P.C. unless a list of prosecution witnesses has been filed, no summons or warrants shall be issued against the accused under Section 204 (1) Cr.P.C. 13. Although, in Section 204 (2) Cr.P.C. the word "shall" is used but it does not mean that whenever there is a word "shall" has been used under any Act in respect of a provision then the provision will be mandatory one. 14. The Apex Court in the case of Bachanan Devi and another Vs. Nagar Nigam, Gorakhpur and another reported in 2008 (12) SCC 372 observed as: "14. "…..Mere use of word 'may' or 'shall' is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue." 15. The Apex Court in the case of Dilip Kumar Basu Vs. State of W.B. and others reported in 2015 (8) SCC 744 again observed that mere use of word "may" or "shall" is not conclusive and it has to be decided according to the object and scheme of the Act and the contest and back ground against which the word has been used. 16. State of W.B. and others reported in 2015 (8) SCC 744 again observed that mere use of word "may" or "shall" is not conclusive and it has to be decided according to the object and scheme of the Act and the contest and back ground against which the word has been used. 16. Therefore, from the above judgments of the Apex Court, it is apparent that on the basis of mere word "may" or "shall", it cannot be conclusively held that "may" means directory and "shall" denotes mandatory provision rather it depends upon various factors, namely, object and scheme of the Act, the context and background against which the word "may" and "shall" has used and purpose and advantageous sought to be achieved by using these words. 17. No doubt, in Section 204(2) Cr.P.C. the word "shall" has been used by legislature but whether word 'shall' used in section 204(2) Cr.P.C. is mandatory or directory it can be decided only after considering the legislative intent coupled with the fact that whether any prejudice was caused to the accused by its violation. If any prejudice can be caused to accused by violation of section 204(2) Cr.P.C. then the provision is mandatory. 18. The legislative intent behind the provision of section 204(2) Cr.P.C. is only to provide the list of witnesses to the accused so as he can effectively defend himself during trial and this requirement can very well be fulfilled by the complainant at the time of appearance of accused before the trial court pursuant to the summons issued to him. Therefore, from the legislative intent provision of Section 204(2) Cr.P.C. appears to be non-mandatory. 19. Further, as complainant can provide the list of the witnesses to the accused at the time of his appearance before the trial court, therefore, it can not be said that non-compliance of the provisions of Section 204(2) Cr.P.C. causes prejudice to him as after obtaining the list of witnesses from complainant accused can effectively defend himself during trial. Therefore, from this angle too provision of Section 204(2) Cr.P.C. appears to be directory in nature. 20. The Apex Court in the case of Rosy and another Vs. State of Kerela, reported in 2000 (2) SCC 230 in para-20 deduced certain principles with regard to Sections 200, 202 and 204 Cr.P.C. as under: "20. Therefore, from this angle too provision of Section 204(2) Cr.P.C. appears to be directory in nature. 20. The Apex Court in the case of Rosy and another Vs. State of Kerela, reported in 2000 (2) SCC 230 in para-20 deduced certain principles with regard to Sections 200, 202 and 204 Cr.P.C. as under: "20. Hence, what emerges from the above discussion is : I. (a) Under Section 200 Magistrate has jurisdiction to take cognizance of an offence of the complaint after examining upon oath the complainant and the witnesses present; (b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses. (c) In such case Court may issue process or dismiss the complaint. II. (a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by other person authorised by him. (b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the court of Sessions, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204 (2) before issuance of the process, (c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. if he fails to raise such objection at the earliest stage, he is precluded from raising such objection later." 21. From the perusal of the above judgment of the Apex Court it is undoubtedly clear that mere non-compliance of the provisions of Section 204(2) Cr.P.C. would not vitiate further proceedings unless and until prejudice is caused or likely to be caused by not following the provisions. 22. Admittedly, the trial of the case is at initial stage and even till date applicants could not appear before the court concerned pursuant to the summoning order passed against them and therefore, if list of prosecution witnesses would be provided by opposite party no.2, the complainant, on their appearance before the court concerned then from any corner it cannot be said, it would cause prejudice to them. 23. As already observed, provision of Section 204(2) Cr.P.C. is directory in nature and by non filing the list of witnesses by opposite party no.2 does not cause any prejudice to the applicants, therefore, on the basis of non-compliance of Section 204 (2) Cr.P.C. neither proceedings pending against the applicants can be vitiated nor summoning order can be quashed. 24. A Single Bench of this Court in Criminal Revision No. 2379 of 2018 in the case of Surendra Kumar Tiwari Vs. State of U.P. and another, decided on 10.8.2018 also discussed the issue in detail and in paragraph-9 observed as under: "9. This court finds itself fully in agreement with the view taken by the Bombay High Court in the above-mentioned Pramila Mahesh Shah's case in respect of the provision of Section 204 (2) and (3), that these are the provisions which are directory in nature and that the court would have to see whether breach of these provisions would cause any prejudice, which is required to be adjudged on the basis of the stage of proceedings in a particular case. At the initial stage if it is found that the accused has been summoned without providing him a copy of complaint and list of witnesses being relied upon by the complainant, the same can be directed to be provided to him within a reasonable time by the complainant as soon as the accused appears before court and that merely because the list of witnesses and a copy of complaint have not been provided as mentioned in the above provisions would by itself not vitiate the proceedings depending upon the stage of the proceedings................... " 25. Therefore, from the above discussions, I find no merit in the argument advanced by learned counsel for the applicants and the instant application is, accordingly, dismissed. 26. However, it would be appropriate to direct the trial court to provide a list of witnesses within a period of four weeks from the date of passing this order so as to applicants may contest the matter on merits.