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2004(6) Supreme 371
SUPREME COURT OF INDIA
(From Delhi High Court)
N. Santosh Hegde, S.B. Sinha & A.K. Mathur, JJ.
Adalat Prasad -Appellant
versus
Rooplal Jindal & Ors. -Respondents
Criminal Appeal No. 91 of 2002
Decided on 25-8-2004
Counsel for the Parties :
For the Appellant : Ranjan Mukherjee, Advocate.
For the Respondents : B.K. Satija and Satish Vig, Advocates.
Held : Therefore what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew s case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under sections 200 and 202, and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 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. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew s case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law. (Paras 15 to 17)
Based on the provided legal document, the key legal principles are as follows:
A Magistrate, having issued process under section 204 of the Criminal Procedure Code (Cr.P.C.), does not have the authority to recall or review the order of issuance of process on an application by the person summoned. The order of issuing process is an interim order, and the authority to recall it is limited and does not include a general review power (!) (!) .
The essential condition for issuing process under section 204 is that the Magistrate must be satisfied, either through examination of the complainant and witnesses or via an inquiry under section 202, that there are sufficient grounds to proceed with the complaint. This satisfaction is a prerequisite and is based on the materials available at that stage (!) (!) .
The process of issuing summons is a preliminary stage, and the Magistrate's satisfaction for proceeding is only at this initial phase. The stage for hearing the accused and reconsidering the grounds for proceeding arises later, typically under section 203, which involves a different procedural context (!) (!) .
Once process has been issued, the accused cannot approach the court to seek dismissal of the complaint or to reconsider the issuance of process through an application under section 203, because that stage is already completed, and the process issuance is not subject to review or reconsideration by the Magistrate at this point (!) (!) .
If an order of process issuance is found to be without jurisdiction or erroneous, the remedy for the aggrieved party is not through a review within the same proceedings but through invoking the inherent or inherent powers of the court, such as under section 482 of the Cr.P.C. This is because the procedural scheme does not provide for a review of interlocutory orders like the issuance of process (!) (!) .
The view that a Magistrate can recall or rescind an order of process solely on the basis of a subsequent application or without specific legal provisions is not supported by the procedural scheme. The issuance of process is a significant step that cannot be reversed or reviewed at the interlocutory stage without proper legal authority (!) (!) .
The Court emphasizes that the issuance of process under section 204 is a preliminary and interim step, and the proper course for challenging the process or the proceedings is through appropriate legal remedies outside of the review process, such as invoking inherent powers of the court (!) .
These principles collectively clarify that the authority to recall or review a process issuance under section 204 of the Cr.P.C. is limited, and proper legal procedures must be followed for any challenge to such orders.
JUDGMENT
Santosh Hegde, J.-This is an appeal by leave against the judgment of the High Court of Delhi at New Delhi in Criminal Revision No. 127 of 1995 whereby the High Court allowed the said revision petition, setting aside the order of the trial court dated 28.1.1995 and remanded the matter to the Court of Magistrate for disposal in accordance with law. Brief facts necessary for the disposal of this case are as follows:
2. The 1st respondent herein filed a complaint under sections 120A, 120B, 405, 406, 415, 420, 463, 465 and 468 of the IPC against the appellant and other respondents herein alleging that the respondents have cheated and defrauded him. Taking cognizance of the said complaint on 26.5.1992 the learned Metropolitan Magistrate summoned the appellants herein and other accused by issuing process under section 204 of the Code of Criminal Procedure (the Code) for offences confined to section 420 read with 120B IPC.
3. Being aggrieved by the said order of issuance of process the appellant and some of the accused moved the High Court and the High Court in the said petition directed the petitioners therein to move the trial court against the order of summoning. Pursuant to the said order of the High Court the appellant herein filed an application purported to be under section 203 Cr.P.C. on 10.3.1993 and the learned trial Judge by his order dated 28.1.1995 after hearing the parties recalled the said summons.
4. The said order of the learned Magistrate recalling the summons originally issued by him was challenged before the High Court on the ground that the Magistrate had no jurisdiction to recall a summons issued under section 204 of the Code. The High Court by the impugned order has allowed the revision petition holding that while the trial court was justified in taking cognizance of the offences punishable under section 420 read with 120B IPC it erred in recalling the consequential summons issued because the said court did not have the power to review its own order.
5. It is against the said order of the High Court as stated above, the appellant is before us in this appeal.
6. When this appeal came up for preliminary hearing on 13.11.2002 learned counsel appearing for the appellant relied on a judgment of this Court in the case of K.M. Mathew v. State of Kerala & Anr. (1992 1 SCC 217) wherein it was held that it was open to the court issuing summons to recall the same on being satisfied that the issuance of summons was not in accordance with law. The court which heard this matter at the preliminary stage doubted the correctness of the judgment in Mathew s case (supra) hence referred that case of Nilamani Routray v. Bennett Coleman & Co. Ltd. (1998 8 SCC 594) to a larger Bench. However said case of Nilamani (supra) got settled out of court hence the issue involved in Mathew s case (supra) was not decided by the larger Bench. Therefore on 3.12.2002 this Court directed that the present appeal be placed before a 3-Judge Bench with a view to consider the correctness of the law laid down by this Court in Mathew s case (supra). It is in this background this appeal has now come up for our consideration.
7. As noticed above it is the correctness of the view expressed by this Court in Mathew s case which is now to be considered by us.
8. It was held in Mathew s case (supra) that section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking cognizance and issue of summons to the accused. When the accused enters appearance in response to the summons the Magistrate has to take proceedings under Chapter XX of the Code. It was further held that the need to try the accused arises only when there is an allegation in the complaint that the accused has committed the crime. Hence, if there is no allegation in the complaint involving the accused in the commission of the crime it is implied that the Magistrate has no jurisdiction to proceed against the accused. In that background this Court held that it is open
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