( 1 ). Short question of law arising in this petition is whether the magistrate has the powers to procure the attendance of the accused through warrants of arrest while taking cognizance of a summons case without giving a finding that the accused has either absconded or will not obey the summons. Answer is emphatic no as it lies in the provisions of Section 204, Cr. P. C relating to "issue of process" itself.

( 2 ). Facts giving rise to aforesaid proposition of law are, put briefly, as under:

( 3 ). Complaint for the offence punishable under Section 22a of the Minimum Wages Act was filed against the petitioner in 2000. The offence carries a sentence of fine to the maximum limit of Rs. 500/- and therefore is a summons case. Vide order dated 23. 10. 2000 the learned Metropolitan Magistrate, while taking cognizance summoned the accused through bailable warrants for a sum of Rs. 5,000/ -. Said order reads as under:

"23. 10. 2000 present: Sh. O. P. Arya, complainant accused be summoned with bailable warrant in the sum of Rs. 5,000/- with one surety through SHO concerned. Dasti for 3. 8. 01. "

( 4 ). Section 204, Cr. P. C provides the procedure for issuing processes for procuring attendance of the accused while taking cognizance of the offence. Procedure laid down is 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 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) 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. "

( 5 ). Bare perusal shows that the law enjoins upon the Magistrate to issue summons for attendance of the accused if it is a summons case and if it is a warrant case he may issue warrant and if he thinks fit he may issue summons for causing appearance of the accused. As is apparent even in warrants case appearance of the accused can be ordinarily procured through summons though the Magistrate has the discretion to issue a warrant. Word shall projects the mandatory nature of the provision so far as process in a summons case whereas work may in relation to a warrant case shows the discretionary power of the Magistrate.

( 6 ). Section 87 of Cr. P. C vests the discretion in the Court which is empowered to issue the summons for appearance of any person to issue warrant of his arrest but in that case as the provision would show certain conditions are necessary to exist. Section 87 provides as under: 87. Issue of warrant in lieu of, or in addition to, summons A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest

(A) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

(B) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for