MANOHAR LAL SHARMA Vs. PREM LATA

JUDGEMENT

(1.) This order will dispose of Criminal Revision No. 449 of 1972 as well. A petition was filed before the Sessions Judge, Delhi by Manohar Lal Sharma against the order made under section 204 of the Criminal Procedure Code, hereafter called "the Code" on the 16th of September, 1972 by Mr. J.M Malik, Judicial Magistrate 1st Class, Delhi. Another petition against the same order was filed by Shri R L Taluja, Advocate. The contention raised was that the order had been passed by the Judicial Magistrate without applying his mind to the statement of the complainant and the evidence produced by him.

(2.) These petitions have come up before me in consequence of the order made by Shri N.C. Kochhar, Addl. Sessions Judge, on the 6th of December, 1972 in exercise of his jurisdiction under section 438 of the Code.

(3.) The order, assailed before the Addl. Sessions Judge, may be reproduced:- "Present: Complainant with his counsel. A prima facie case under section 500/502 Indian Penal Code is made out against the accused persons. Summons be issued to both the accused. Process fee and copies be deposited within two days. To come up for the presence of the accused on 18th October, 1972. 16th September. 1972. sd/- (J.M. Malik)" At the very out-set I have asked the counsel appearing for the respondent to interpret section 204 of the Code and persuade me that the order receives sanction from that provision. I have heard him also in respect of the precise controversy involved in these petitions. Sections 203 and 204 of the Code, may be reproduced here :- "S. 203. The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under section 202, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for go doing. S. 204. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appeals lobe one in which according to the foruth column of the second schedule, a summons should issue in the first instance, be shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to the 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 lime before sueh Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction. (IA) No summons or warrant shall be issued against the accused undersubsection (1) until alist of the prosecution witnesses has been filed (lB) 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. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) 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". The same material is available to the Magistrate at the time of deciding whether he has to proceed under section 203 or section 204 of the Code. Several persons may be accused of several offences. While applying his mind to the evidence adduced before him, the Magistrate will have to find out as to wbether he is to dismiss the complaint in respect of some of the offences and in respect of the accused and yet to proceed against other accused for some of the offence? under section 204 of the Code. He has to apply his judicial mind to all the evidence made available to him. While dealing with section 203 of the Code in Vadilal Panchal v. Dattatraya, in paragraph 10 it was observed :-