Wp(Md)No.19651 Of 2017 vs The Assistant Commissioner Of … on 26 September, 2018
| Citation | (2004) 7 SCC 338 |
| Date of Judgment | 26 September ,2018 |
| Court | Madras High court |
| Case Type | Criminal Appeal No.91 of 2002 |
| Appellant | Mr.M.Subash Babu |
| Respondent | Mr.K.Chellapandian, |
| Bench | Bench N. Santosh Hegde, S.B. Sinha & A.K. Mathur |
| Referred | Section-106,209,392,394,75 of IPC |
FACTS OF THE CASE
The first respondent in this case filed a complaint against the appellant and other respondents under Sections of the Indian Penal Code, 1860, alleging that the defendants had tricked and robbed him. The learned Metropolitan Magistrate summoned the appellants in this case and other accused on 26.5.1992 after taking cognizance of the aforementioned complaint and issuing process in accordance with Section 204 of the Code of Criminal Procedure (the Code) for offences limited to Section 420 read with 120B of the Indian Penal Code, 1860.
The appellant and some of the accused filed a petition with the High Court after feeling wronged by the aforementioned order issuing the process, and the High Court in that petition instructed the petitioners to file an appeal with the trial court against the summoning order. The appellant in this case submitted an application purportedly under Section 203 of the Criminal Procedure Code on March 10, 1993, in accordance with the aforementioned High Court judgement. The learned trial judge recalled the summons in an order dated August 2, 1995, after hearing from the parties.
The High Court rejected the challenge to the aforementioned order of the learned Magistrate recalling the summons he had initially issued on the grounds that the Magistrate lacked authority to recall a summons issued under Section 204 of the Code. The trial court was justified in taking cognizance of the offences punishable under Section 420 read with 120B IPC, but the trial court erred in recalling the consequential summons issued because the said court lacked the authority to review its own order, the High Court held in the impugned order allowing the revision petition.
The appellant is before us in this appeal in violation of the aforementioned High Court injunction.
ISSUES
1) Whether the Magistrate recalls summons issued in accordance with Section 204 of the Indian Penal Code?
ARGUMENTS
When this appeal was scheduled for a preliminary hearing on November 13, 2002, knowledgeable lawyers representing the appellant cited this Court’s decision in K.M. Mathew v. State of Kerala & Anr. (1992) 1 SCC 217.
The preliminary hearing for this case was held in a court that questioned the validity of the decision in Mathew’s case (above), and as a result, it was referred to a bigger Bench in the case of Nilamani Routray v. Bennett Coleman & Co. Ltd. (1998 8 SCC 594). The issue in Mathew’s case (above), however, was not decided by the bigger Bench since the aforementioned Nilamani case (supra) was resolved outside of court. Consequently, on December 3, 2002, this Court ordered that the present appeal be brought before a three-judge bench in order to assess the accuracy of the legal standards set forth by this Court in Mathew’s case (above). In light of the foregoing, we are now presented with the appeal.
We are unable to concur with the law established by this Court in the aforementioned matter after hearing the experienced counsel for the parties and taking into account its judgement in the case of Mathew (supra).
JUDGEMENT
In the matter of Mathew (supra), it was decided that section 204 of the Code states that the procedures before the magistrate begin when notice of the offence is taken and an accusation is issued.
Furthermore, it was decided that only when the accusation of guilt is made in the complaint does a trial of the accused become necessary. Therefore, it is suggested that the Magistrate lacks jurisdiction to proceed against the Accused if there is no allegation in the Complaint implicating the Accused in the commission of the Crime.
In that instance, the court also ruled that the magistrate could only summon someone if there was sufficient reason to do so; as a result, summonses that had been issued in error might be recalled by the magistrate without the need for a special provision.
According to Section 200, a Magistrate who receives a complaint for an offence is required to examine the complaint and administer an oath to the complainant and any witnesses who may be present. If after such examination of the complaint and the witnesses, if any, the Magistrate determines that the complaint, the complainant’s statement, and the witnesses have not established sufficient grounds, he or she must dismiss the complaint under section 203.
Therefore, in our opinion, the statement made by this Court in the case of Mathew (supra) that no specific legal provision is necessary for recalling an incorrectly issued process order would be in conflict with the Code’s scheme, which does not allow for review and forbids interference at the inter-locutory stage. Because of this, we believe that the court’s conclusion in Mathew’s case (above), which held that no explicit clause is necessary for recalling an incorrect decision that amounts to one without jurisdiction, does not establish the proper rule of law.
Given the foregoing judgement, it is unnecessary for us to address the issue of whether or not issuing an order qualifies as an interim order.
For the reasons stated above we are in agreement with the judgment of the High Court impugned herein. This appeal fails and the same is dismissed.
REFERENCES
This Article is written by Chandrawati Chouhan of Rajasthan School of Law for Women, Jaipur , Intern at Legal Vidhiya.
