USHA Vs. B GOBINATH

JUDGEMENT

(1.) ON receipt of summons, the petitioner filed discharge petitions in C. M. P. No s : 162, 165, 166, 164, 163 and 161 of 2003 on various grounds and the same were dismissed by the learned judicial Magistrate as not maintainable. Aggrieved over the said order, the petitioner/accused has preferred these Criminal Revision Cases.

(2.) LEARNED counsel for the respondent would contend that as per the judgment of the Hon'ble Supreme Court in Adalat Prasad Vs. Rooplal Jindal and others, reported in 2004 (7) SCC 338, the discharge petitions filed by the revision petitioner at this stage are not maintainable and therefore, the order of the learned Judicial Magistrate, Neyveli need not be interfered. In the said judgment, their lordships of the Hon'ble Supreme Court have held as follows:- "14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. 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 case (1998 (8) SCC 594) that 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 on 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. 15. 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 provisions of Section 200 and 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 the Code. "