AMRIK SINGH Vs. ASHOK KUMAR

JUDGEMENT

(1.) "Whether a Magistrate, after having taken cognizance and issued process in terms of Sec.204 Cr.P.C. against an accused on a private complaint, can, on the application of the accused, drop the proceedings - is the question involved in this petition. The facts shortly put are that the petitioner herein filed a complaint against the accused -respondent for commission of offence U/S 420 RPC in the court of Chief Judicial Magistrate Doda on 20.7.2001. Learned C.J.M. took cognizance for the offence U/S 420 RPC and issued the process for appearance of the accused. Trial Court directed the complainant to produce his evidence. However, before the trial court could record the evidence of the complainant, the accused moved an application on 18.3.2002 seeking dropping of the proceedings on the ground that the dispute involved was of a civil nature. Learned C.J.M. allowed the prayer of the accused, and dismissed the complaint and discharged them. The complainant -petitioner questioned the legality of the order of the learned C.J.M. before the learned Addl. Sessions Judge Doda, however he by his order dated 24.8.2004 dismissed the revision petition and upheld the order of the trial court, hence the petitioner is challenging the order of the trial court as well as that of the Sessions Court by way of the present petition.

(2.) THE contention of learned counsel for the petitioner is that the trial court was not legally competent to dismiss the complaint without recording evidence. According to Mr. Thakur the order of the trial court whereby the complaint has been dismissed, after having issued the process, amounts to reviewing of its own order for which the trial court had no power under any of the provisions of the Code of Criminal Procedure. He submits that the order of the learned Sessions Judge is also erroneous in law On the other hand the contention of Mr. Wazir learned counsel for the accused -respondent is that process was issued against the accused for the fence U/S 420 RFC. The procedure to be followed for trial of the said offence was the procedure prescribed for trial of warrant cases on a private complaint. He argues that in terms of sub -sec.2 of sec.253 Cr.P.C. trial court was competent to hear the accused and could for reasons to be recorded drop the proceedings and discharge the accused.. According to Mr. Wazir the orders of the trial court and the Sessions Court are perfectly legal and do not call for any interference.

(3.) THE question whether a Magistrate possesses the power to drop the proceedings midway came up for consideration before a two Judges Bench of the Supreme Court in case titled K.M. Mathew vs. State of Kerala, reported in AIR 1992 SC 2206. Their lordships observed as under: - "If one reads carefully the provisions relating to trial of summons cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates that the proceedings before the Magistrate commence upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."