LAWS(ALL)-1989-7-80

AWADH STRAIN PATHAK Vs. STATE OF U P

Decided On July 13, 1989
AWADH STRAIN PATHAK Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) S. R. Bhargawa, J. Heard the learned counsel for the revisionists and perused record. Revision is directed against summoning order under Section 204, Cr. P. C. Much has been argued and it has been contended that the complaint is wholly false and no case is made out. Magistrate has discretion to consider evidence for summoning the accused is sufficient or not. In revision evidence cannot be re appreciated. At any rate there can be no interference in the discre tion of the Magistrate

(2.) BUT it is not the purpose of the law that the accused of a different district should be made to personally attend the court of the Magistrate and humiliated. It is also not the purpose of law that at the time of appearance at the initial stage the complainant may have the occasion to see and recognise the accused and identify them during evidence. When the accused are of a different district they can claim that they are not at all known to the complainant and can claim identification during evidence of the complainant under Section 244, Cr. P. C. on the other hand, it should also be noted that the Indian Constitution guarantees fundamental right of liberty and there should be least interference with the liberty of the citizens. when in a complaint case accused appears before the Magistrate, he should not he forced to surrender nor remanded to judicial custody nor he should be expected to move a bail application. It is true that under Section 309, Cr. P. C. , a Magistrate has jurisdiction to remand an accused to judicial custody during trial or enquiry. BUT it is equally true that in complaint case there can be no question of Judicial remand for further investigation. At the same time when the accused appears in a complaint case on his own will and not under arrest, he can be let-of un his personal bond with or without surety under election Jo. Cr P. C. When a procedure more convenient to the accused is available, that procedure should be followed. ln complaint cases it should be noted by the Magistrate that order under Section 204 is passed by him ex parte. After appearance accused can claim discharge under Section 245 (2), Cr. P. C. If after hearing arguments of both the sides the Magistrate comes to the conclusion that the case is baseless or no offence is made out, the Magistrate can discharge the accused.