Hatia Swain vs Chintamani Mishra

V. Gopalaswamy, J.—This Misc. Case is filed u/s 482, Cr.P.C. for quashing the order dated 8-12-1987 passed by the learned Sub-divisional Judicial Magistrate, Puri, in 1CC No. 138 of 1987 taking cognizance against the petitioner and others under Sections 448, 427, 323, 506 read with Section 34, I.P.C.

The learned counsel for the petitioner challenged the order taking cognizance against the petitioner and others on the ground that the learned Magistrate has not given reasons for taking cognizance against the petitioner.

So the question that arises for consideration is whether the Magistrate is required to give reasons for issuing process u/s 204, Cr.P.C.

In this context reference to the relevant provisions of Sections 203 and 204, Cr.P.C. is considered relevant and material and hence extracted below :

"203. Dismissal of complaint.-- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) u/s 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

Issue of process.-- (1) If in the opinion of a Magistrate taking congnizance of an offence there is sufficient ground for proceeding, and the case appears to be--

(a) a summons-case, he shall issue his summons for the attendance of the accused,

or

(b) a warrant-case, 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 time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.

XX XX XX XX XX"

Hence on a careful comparison of the provisions of Sections 203 and 204, Cr.P.C, it is seen that, as held by the Allahabad High Court in Ratan Singh v. Kusum, (1984) 1 Crimes 690 : (1984 All LJ 298), whereas Section 202 provides that while dismissing a complaint the Magistrate has to record briefly the reasons for doing so, Section 204 which provides for issuing of process, does not lay down that in that event the Magistrate has to record the reasons. Thus while summoning the accused u/s 204, Cr.P.C. the Magistrate is only to form an opinion that he is to take cognizance of the offence and that there is sufficient ground for proceeding against the accused. When Section 204 does not require recording the reasons, the order of summoning the accused need not be a speaking order.

The learned counsel for the petitioner cited the decision Udby Bir Singh Vs. Shakumtla Devi etc., . In that case the complaint petition was filed against six accused persons and the Magistrate passed a composite order discharging three accused persons while issuing process u/s 204, Cr.P.C. against the remaining three accused persons. As it was a composite order it was incumbent on the Magistrate that he should distinguish the case of the three discharged persons from that of the other three persons summoned by him giving out the reasons for treating the two sets of accused differently. The facts of that case are quite different and, therefore, the decision cited does not apply to the present case.

J. P. Gupta v. Union of India, 1981 Lab IC 641 (Pat) is another decision cited by the learned counsel for the petitioner. In that case the petitioners challenged the legality of the order passed by the respondent Chief Judicial Magistrate/Sub-divisional Judicial Magistrate summoning them to stand trial for the offence u/s 23 of the Contract Labour (Regulation and Abolition) Act (37 of 1970) (hereinafter referred to as ''the Act''). Under the Act whosoever will employ contract labour in contravention of the notification issued u/s 10 of the Act shall be liable for conviction u/s 23. In the petition of complaint there is no allegation that the petitioner had employed contract labour in any process or operation, which was prohibited by the notification. Hence it was observed that the learned Chief Judicial Magistrate/Sub-divisional Judicial Magistrate before issuing summons should have applied their mind to the question as to whether a prima facie case was made out on the allegations made in the petition of complaint against the accused persons or against any one of them. When the complaint petition itself does not disclose that an offence, of which cognisance was taken, is committed, the taking of such cognizance is patently illegal. The said decision does not deal with question whether the Magistrate is required to give reasons for issuing process u/s 204, Cr.P.C. So the said decision is in no way helpful to the petitioner in the present case.

In this context, reference may be made to the decision in Swarn Anand and Others Vs. Chief Judicial Magistrate and Another, , wherein it was held thus (at p. 357) :

"In case the Magistrate does not pass an order of discharge u/s 203, Cr.P.C. in that case he has merely to form an opinion if there is sufficient ground for proceeding against the accused persons. It does not require him to give any reasons for his so doing. An order summoning the accused has merely to state the opinion of the Magistrate. He need not state grounds for his satisfaction."

This view of the Allahabad High Court receives support from the authority reported in Hafizar Rahman Vs. Aminal Hoque, wherein it was held :

"It is not necessary that the opinion of the'' Magistrate that there is sufficient ground for issuing process against certain accused persons u/s 204 should be based on evidence in the case nor that the reasons for such an opinion should be recorded. Consequently when the sworn statements. the reports of the enquiring officers under-Section 202 of the Code and the petitions of the complainant are before the Magistrate, it must be presumed that he had perused these documents and, the other papers on the record and that after having done so. he was of the opinion that there was sufficient ground for proceeding against some of the accused persons other than those in respect of whom process had originally been issued."

Hence relying on the above referred decisions of the Allahabad High Court and the Calcutta High Court. I hold that on a consideration of the relevant materials, if the Magistrate is of opinion that there is no sufficient ground for proceeding, he is empowered to dismiss the complaint u/s 203. Cr.P.C.. but in that case, he shall briefly record his reasons for so doing and such recording of reasons is mandatory. But if the Magistrate summons the accused u/s 204, Cr.P.C.. an order summoning the accused has merely to state the opinion of the Magistrate. He need not state the reasons for such an opinion.

In the present case on a perusal of the impugned order, it is seen that the learned Magistrate perused the complaint petition, the initial statement of the complainant and the case diary of the connected C.R. Case No. 573 of 1987 and then finding that there are sufficient materials against the accused persons that they had taken part in the alleged occurrence and that a prima facie case under Sections 448, 427. 380. 323. 506/34.I.P.C. is made out against them took cognizance thereunder and issued summons to the accused. Hence I find that the order passed by the learned Magistrate summoning the accused is quite legal and suffers from no such infirmity which justifies the interference of this Court in exercise of its revisional jurisdiction.

In the result. I find no merit in the Cri. Misc. Case and the same is. therefore dismissed.