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High Court Of Delhi
CHAMAN LAL - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 107 of 1973
Decided On : 05/22/1973
CRIMINAL PROCEDURE CODE - SECTION 204 - ISSUE OF PROCESS - ONLY MAGISTRATE TAKING COGNIZANCE CAN ISSUE PROCESS - EXCEPTION UNDER SECTION 200(C) NOT APPLICABLE - ORDER DIRECTING ISSUE OF PROCESS BY SUCCESSOR MAGISTRATE QUASHED.
Fact of the Case:
A complaint was filed against the petitioners under Section 323/504 of the Indian Penal Code. The Magistrate who took cognizance of the complaint examined the complainant and four other witnesses under Section 202 Cr. P. C. Subsequently, the case was transferred to another Magistrate, who directed the issue of process to the accused. The petitioners challenged the order of the successor Magistrate, arguing that only the Magistrate who takes cognizance of the complaint can issue process to the accused.
Finding of the Court:
The court held that only a Magistrate who takes cognizance of a complaint under Section 204 Cr. P. C. can issue the process unless the case comes under any of the exceptions to Section 200 Cr. P. C. In the present case, there was no order of transfer of the case by the Magistrate who took cognizance to the successor Magistrate. Therefore, the successor Magistrate had no right to direct the process to issue to the accused.
Issues: Whether a successor Magistrate can issue process to the accused without taking cognizance of the complaint and recording the sworn statement of the complainant and/or the witnesses of the complainant.
Ratio Decidendi: The court relied on the provisions of Sections 192, 200(c), and 204(1) of the Cr. P. C. to hold that only a Magistrate who takes cognizance of a complaint can issue process to the accused. The court also referred to the Supreme Court decision in Rajendra Nath Mahato v. Deputy Superintendent of Police, where it was held that only a Magistrate who takes cognizance of a complaint under Section 204 Cr. P. C. could issue the process unless the case comes under any of the exceptions to Section 200 Cr. P. C.
Final Decision: The court set aside the order of the successor Magistrate directing the issue of process and directed the Chief Judicial Magistrate to transfer the complaint to another Magistrate for further proceedings.
( 1 ) THE facts leading to the revision petition brieffy are as follows :- Before Shri K. K. Chowdhury, Judicial Magistrate Ist Class, Delhi, Madan Lal gave a complaint against Chanan Lal and Ved Parkash (Petitioners) on 14-9-71 alleging the commission of offences punishable under Section 323/504 Indian Penal Code. The police had already filed a challan in May, 1971, against yet another Chanan Lal, nephew of Mohan Lal (complainant ). There was also a private complaint filed by Sohan Lal, uncle of Chanan Lal (Petitioner) against Mohan Lal (complainant) and two others under Section 323 I. P. C. All these complaints are said to relate to the same occurrence, which happened on 28th of March, 1971.
( 2 ) SHRI B. N. Chaturvedi took cognizance of the complaint and examined the complainant besides four others witnesses under Section 202 Cr. P. C. The last of them was examined on 15-2-72. Subsequently it was posted on various dates for arguments and for orders; it was finally posted by Shri B. N. Chaturvedi to 11 -5-78. Shri B. N. Chaturvedi had not directed the issue of process. On 11-5-1972 the successor Magistrate (Shri M. S. Rohilla) directed the issue of process to the accused; the order sheet reads as follows:
"file received today. Present complainant along with his counsel. Preliminary arguments heard. Orders passed. Accused persons be summoned for 27-5-72 on P. F. deposit under Section 323/504 I. P. C. "the revision petition is directed against the said order of issue of process.
( 3 ) ON the ground that under Section 204 of the Cr. P. C. it is only a Magistrate who takes cognizance of the complaint who can issue the process to the accused but not a succeeding Magistrate who has not himself taken the cognizance and recorded the sworn statement of the complainant and/or of the witnesses of the complainant.
( 4 ) IT is, necessary, before adverting to the terms of Section 204 Cr. P. C. to notice the following provisions. Sections 192, 200 (c) and 204 (1) of the Cr. P. C. read as follows :
SEC. 192 (1 ). Any Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him. (?) Any District Magistrate may empower any Magistrate of the first class who has taken cognizance of any case, to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial, and such Magistrate may dispose of the case accordingly. "sec. 200 (c)
"when the case has been transferred under Section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate whom it is so transferred shall not be bound to reexamine the complainant. "sec. 204 (1)
"if in the opinion of Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the second schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column) a warrant should issue in the first instance, 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 not jurisdiction himself ). Some other Magistrate having jurisdiction. (IA) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. (IB) Exactly the same question was considered by the Supreme Court in Rajendra Nath Mahato v. Deputy Superintendent of Police (A 1. R. 1972 Supreme Court 470 ). AN. Ray J. (as he then was) speaking for the Supreme Court held that only a Magistrate who takes cognizance of a complaint under Section 204 Cr. P. O. , could issue the process unless the case comes under any of t
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