Babu Ram and Another vs State of U.P.

V.N. Varma, J.—This revision is directed against an order dated 29th April, 1976 passed by Additional Sessions Judge, Bulandshar in a case arising out of complaint filed against the applicants under Sections 436, 504 and 506 IPC.

O.P. No. 1 (Prem Pal) filed a complaint against the applicants under Sections 436, 504 and 506 IPC. On 4th August, 1975 the Magistrate took evidence u/s 202 Code of Criminal Procedure and summoned the applicants for trial u/s 436 IPC fixing 1st November, 1975 for their appearance. On 1st November, 1975 O.P. No. 1 did not appear in Court. It was also brought to the notice of the Court by the office that O.P. No. 1 had not taken steps for summoning the accused applicants. The Magistrate, therefore, dismissed the complaint u/s 204 Code of Criminal Procedure. O.P. No. 1 went up in revision and his revision was allowed by Additional Sessions Judge Bulandshahar, vide order dated 29th April, 1976. Though this order, dated 1st November, 1975 passed by the Magistrate dismissing the complaint was set aside and the Magistrate was directed to proceed with the case from the stage on which order dated 4th August, 1975 was passed. The applicants felt aggrieved with this order and have now come up in revision to this Court.

I have heard the learned Counsel for the parties at sufficient length and have also gone through the orders passed by the court below. The order passed by the Magistrate shows that he had dismissed the complaint u/s 204(4) Code of Criminal Procedure on the ground that O.P. No. 1 had not appeared in court on the date fixed and also on the ground that O.P. No. 1 had not taken steps for summoning the applicants. Section 204(4) provides that where any process fee is payable under any law, 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. In this case, as stated above, the applicants had been summoned for trial u/s 436 IPC. Offence u/s 436 IPC is a cognizable offence. In a case u/s 436 IPC the law does not provide that the complainant has to pay any process fees for summoning the accused. It was, therefore, not at all necessary for O.P. No. 1 to have paid any process fees for summoning the applicants in the case. The Magistrate was therefore, not authorised under law to dismiss the complaint for non-deposit of any process fees by O.P. No. 1. The Magistrate could not also have dismissed the complaint for non-appearance of O.P. No. I on 1st November, 1975. No provision of law has been shown under which the learned Magistrate could have dismissed the complaint because of the non-appearance of O.P. No. 1 in this case, which was a case u/s 436 IPC. The learned Addl. Sessions Judge was, therefore, absolutely correct when he set aside the Magistrate''s order dated 1st November, 1975 dismissing the complaint u/s 204 Code of Criminal Procedure I, however, find that while registering the complaint the learned Additional Sessions Judge directed the Magistrate to proceed with the case from the stage subsequent to the passing of the order dated 4th August, 1975. This direction of the learned Additional Sessions Judge, to my mind, was neither proper nor in accordance with law. On 4th August, 1975 some witnesses produced by O.P. No. 1 were examined and then an order was passed summoning the applicants for trial u/s 436 IPC. If a case triable exclusively by the Court of Sessions is instituted on a complaint, the law as contained in Section 202 Code of Criminal Procedure enjoins that the accused should be summoned only when the Magistrate has called upon the complainant to produce all his witnesses and examined them on oath. The case before us was undoubtedly a case triable exclusively by the Court of Session. It was, therefore, not at all proper on the part of the Magistrate to have examined some witnesses of the complainant only and then summoned the accused. I find that the Magistrate had examined some witnesses as Court witnesses also. This was not in accordance with law at the stage on which they were examined. The complainant should have been called upon to produce all his witnesses and then the Court should have found out whether a prima facie case against the accused was made out or not. If the Magistrate felt that a prima facie case was made out against the accused, then and then only he should have summoned the accused. The summoning of the accused applicants in this case was not proper as full compliance of the provisions of Section 202 Code of Criminal Procedure had not been done. In view of this the order passed by the Additional Sessions Judge that the Magistrate should proceed with the case from the stage subsequent to the passing of the order dated 4th August, 1975 was not proper. Instead the Magistrate should have been asked to examine all the witnesses produced by the complainant and thereafter if he felt satisfied that a prima facie was made out against the applicants, then he should have summoned them. The summoning of the applicants without full compliance of the provisions of Section 202 Code of Criminal Procedure was not at all proper.

In the result, I allow the revision in part and maintain the order of the Court below setting aside the Magistrate''s order dated 1st November, 1975. The other part of the order is set aside and the Magistrate is ordered to proceed with the case after complying with the provisions of Section 202 Code of Criminal Procedure as mentioned above. He should first examine all the witnesses produced by O.P. No. 1 and if he feels satisfied that a prima facie case is made out against the applicants then he should summon them. Stay order dated 16th July, 1976, is vacated.