Ramesh vs A. Ramanujam

The interesting question that arises in this petition is : Whether in the proceedings initiated in a private complaint, one of the accused is entitled to

the copy of the complaint, even when the other accused persons do not appear before the Court ? :

The facts that are relevant to dispose of the present petition are these : The complainant who is the respondent herein filed a complaint against a

partnership firm (A1) and two others, including the petitioner (A3) being a partner of the partnership firm, for the offence punishable u/s 138 of the

Negotiable Instruments Act. On receipt of summons, the petitioner appeared before the lower Court on 19-9-1997. The second accused Mrs.

Brinda Vaidyanathan did not appear on that date. However, a petition u/s 317 of the Code of Criminal Procedure was filed on her behalf of the

same was allowed. The bearing was adjourned to 26-9-1997 for her presence. At this juncture, the petitioner filed an application in Crl. M.P. No.

3792 of 1997 in the Calendar Case No. 5208 of 1997 before the lower Court requesting to furnish a copy of the complaint to him. This petition

was dismissed by the lower Court on the ground that the copies will be furnished only after the second accused Brinda Vaidyanathan appears

before the Court, that too after verification with the second accused whether the copy of the complaint was sent along with the summons and the

same was received by her. This order is challenged in this petition.

Mr. Ravi Anantha Padmanabhan, learned counsel appearing for the petitioner would contend that in view of Rule 7 of the Criminal Rules of

Practice and Section 204(3) of the Code of Criminal Procedure, every summons issued u/s 204(1) of the Code of Criminal Procedure shall be

accompanied by a copy of the complaint and if not done, atleast on the date of first appearance, the accused shall be furnished with such a copy of

the complaint and as such, the Court need not wait till the other accused appears before the Court.

Section 204 of the Code of Criminal Procedure falls under Chapter XVI. Under this section the Magistrate taking cognizance of the offence,

shall issue summons in a summons case for the attendance of the accused and a warrant or, if he thinks fit, a summons in a warrant case for causing

the accused to appear before him. Section 204(1) of the Code of Criminal Procedure would apply to both the private complaint as well as police

report, which reads as follows :

Section 204, 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.

But, in a private complaint, when it is taken on file, it is mentioned in Section 204(3) of the Code of Criminal Procedure, that every summons or

warrant issued u/s 204(1) of the Code of Criminal Procedure shall be accompanied by a copy of such complaint, which reads as follows :

Section 204(3) : In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be

accompanied by a copy of such complaint.

The word ''shall be'' indicates the importance of sending the complaint along with summons or warrant to be served upon the accused. This is the

specific stand taken by the petitioner, both in the application filed before the lower Court as well as before this Court, that he only received the

summons and the copy of the complaint did not accompany the summons. On the basis of that he requested the trial Court to furnish the copy of

the complaint atleast in the Court on his appearance on the first day, so that he may know what the accusation is, against him.

Rule 7 of the Criminal Rules of Practice would provide that the accused shall be furnished with the copy of the complaint even on the first occasion

when he appears before the Court.

Rule 7 of the Criminal Rules of Practice reads thus :

7(7). Accused summons to be signed by Magistrate :-

Magistrate shall themselves sign summonses to accused persons.

In a proceeding instituted upon a complaint made in writing, the accused shall be furnished with a copy of such complaint as early as practicable

and not later than the first occasion when he appears in Court.

Note 1 : The copy of the complaint may be sent with the summons or warrant issued to the accused u/s 204 of the Code.

Note 2 : Complaints in this rule will include Police report in non cognizable cases and other complaints by departmental offices P. Dis No.

677/1965 High Court, Madras.

According the the learned counsel for the petitioner the failure of the Magistrate in sending the copy of the complaint along with summons to the

accused could be definitely an irregularity and of course this irregularity could be cured atleast by furnishing the copy of the complaint, when it is

asked for by the accused on his appearance.

The impugned order would say that the copy of the complaint could be furnished to the accused only after the appearance of the other accused

so that it could be verified with the other accused whether the copy of the complaint was received by him along with summons or not. In my view,

the reason adduced by the Magistrate does not sound well. Rule 7 of the Criminal Rules of Practice would specifically say that the accused shall be

furnished with the copy of the said complaint not later than the first occasion when ''he'' appears before the Court.

Therefore, as per this rule, when it is reported to the Court by the accused that the copy of the complaint did not accompany the summons, as

per the provisions u/s 204(3) of the Criminal Procedure Code, the Court should have furnished him with a copy of such complaint immediately on

his appearance, irrespective of the appearance of the other accused. The Court need not also wait for the appearance of the other accused in

order to verify whether the provisions u/s 204(3) of the Code of Criminal Procedure have been complied with or not. Even assuming that the other

accused would come and say that she was served with the copy of the complaint along with summons, that would not make the Court to infer that

this accused also must have been served with the copy of the complaint in a similar way.

The law does not provide that the accused who is to face the trial before the Court has to wait till the other accused comes and appears before

the Court, in so far as the private complaint is concerned. If such a condition is put, there may be occasions where the summons is not duly served

on the other accused and in such event the Court, at the instance of the complainant has to take coercive measures for causing appearance of the

other accused before the Court. This may consume a longer course and it cannot be said as to when the other accused would appear before the

Court. If the copy of the complaint is not furnished to the accused till then, it would not only spoil the right of the accused, who appears before the

Court, for a speedy trial, but also he may not be able to get the services of the lawyer with reference to the accusations made against him or it will

be difficult to seek legal opinion as to what course he has to adopt, to face the complaint filed against him.

Therefore, the lower Court shall have to send the copy of the complaint u/s 204(3) of the Code of Criminal Procedure to each of the accused

and if any one of the accused complains that he/she has not received the copy of the complaint, the Magistrate, as per Rule 7 of the Criminal Rules

of Practice shall arrange to furnish the copy of such complaint, even on the first day when he/she appears before the Court, although the other

accused do not appear before the Court on the said date for some reason or the other.

In a private complaint the accused is not entitled to the documents, but definitely he is entitled to the copy of the complaint the moment he

received the summons, for attending the case as an accused to face the trial before the Court. This view of mine gets support from the decision in

Municipal Committee, Amritsar v. Labhu Ram reported in 1970 CLJ 553 (Punj & Hary) in which it is held as follows (at pp. 555-56 of Cri LJ) :

It is true that in a proceeding instituted on a complaint in writing, a copy of such complaint has to accompany the summons or warrant issued to

the accused with a view to enforce his appearance in Court but then it cannot be said that a complainant is bound either by virtue of an express

provision of law or by necessary implication to furnish to the accused, copies of documents produced by him along with the complaint or relied by

him in support thereof.

The above said view of mine is also supported by the other authorities cited both by the learned counsel for the petitioner as well as the learned

Government Advocate who was asked to render assistance in this case, which are as follows : In Brahma Panda and Another Vs. Chairman of

Howrah Municipality, the Division Bench would hold thus (para 4) :

We are unable to agree with him that the summons ceased to be summons simply because it was not accompanied by copy of the complaint. The

petitioners should have attended the Court in obedience to the summons and then brought to the notice of the learned Magistrate that the summons

was not accompanied by a copy of the petition of complaint as required by Section 204(1-B) of the Code of Criminal Procedure ........... It cannot

be said that the jurisdiction of the learned Magistrate was affected simply because the summons was issued without a copy of the complaint. -

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If the petitioners attended the Court of the learned Magistrate and asked for a copy of the complaint, they would have known what the details of

the offences were.

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When the petitioner attend the Court of the learned Magistrate, the learned Magistrate will certainly direct the copies of the complaint to be given

to the petitioners.

In Jagannath Sahu Vs. State and Another, the relevant observations are as follows :

The provisions of Section 204(1-B) are merely directory. They will not per se vitiate the proceedings. It would not, however, mean that the

Magistrate can with impunity disregard the statutory directions contained in sub-sec. (1-B). It is his duty to see that before the accused proceeds

with the case, a copy of the complaint petition is supplied to him. Merely explaining to the accused the particulars of the offence before the posting

of the case, for hearing, is not enough. It cannot be said that no prejudice would be caused to the accused by such omission. It is the duty of the

Magistrate to supply the complaint copy before proceeding with the trial.

In T. T. V. Dhinakaran v. The Enforcement Officer, Enforcement Directorate Shastri Bhavan, Madras (1997) 1 MLW (Cri) 111 this Court has

held as follows :

Sub-section (3) of Section 204, Cr.P.C. has specifically spelt out the process or summons when it was issued under this Section. These all would

mean and are intended that when the accused receives the summons or process, he must be able to know what are all the averments, allegations

and the circumstances and substratum of the complaint pertaining to his commission of offence in detail inclusive of a list of prosecution witnesses.

In Ram Narain Vs. Bishamber Nath and Another, the relevant portion reads as thus (para 8) :

The Court''s decision to issue a process cannot be deemed to have been necessarily and automatically invalidated by the omission of the

ministerial officers to attach a copy of the complaint with the summonses, and the supply of such a copy to the accused on or before his

appearance, though the copy was not attached with the summonses, may cure the defect, at worst, adjournment would, generally speaking, place

the accused, for all practical purposes, in the same position as if such a copy had originally accompanies the summonses; Section 537, Criminal

Procedure Code, would thus in my opinion, cure the defect.

Thus, the conjoint reading of Section 204(3) of the Code of Criminal Procedure and Rule 7 of Criminal Rules of Practice would drive to bring

to an inescapable conclusion that these provisions are meant for the protection of the accused persons and this would enable the accused to know

about the nature of the accusation to which he would be answerable before the Court. The Courts of Justice in this country have been given a

privileged position, a position which carried with it the corresponding responsibilities. It is therefore incumbent on their part to perform their judicial

functions with the proper sense of responsibility. Failure on their part to apply their mind to the cases they are called upon to decide, cannot but

create an unhappy impression.

Therefore, the lower Court, in the light of the provisions under S. 204(3) of the Code of Criminal Procedure read with Rule 7 of the Criminal

Rules of Practice should have immediately furnished the copy of the complaint to the petitioner, especially when the non-compliance of the

provisions u/s 204(1) of the Code of Criminal Procedure was complained of. The non-appearance of the other accused cannot be a valid ground

in a case of this nature, arising out of a private complaint, for rejecting the prayer seeking the furnishing of the copy of the complaint as it amounts

to deprival the valuable right of the accused.

In view of the above discussion, I am of the opinion that the accused is entitled to the copy of the complaint either u/s 204(3) of the Code of

Criminal Procedure or on its failure, atleast under Rule 7 of the Criminal Rules of Practice, even when the other accused do not appear in the cases

arising out of private complaint.

In fine, the impugned order is liable to be set aside and the same is therefore set aside. The learned Magistrate is directed to furnish a copy of

the complaint on the appearance of the petitioner.

With the above direction, this petition is allowed. Consequently, Cri. M.P. Nos. 5061 and 5062 of 1997 are disposed of.

Petition allowed.