A single judge bench of Justice Ilesh J. Vora of Gujarat HC dismissed the special criminal application filed by the accused contending violation of section 204(2) of Cr.P.C against him. This court held that question of prejudice is of paramount importance in case of breach of procedural laws and in this case no prejudice is caused to the accused.
Facts:
The applicant by this application under Articles 226 and 227 of the Constitution of India, has challenged the order of cognizance dated 03.09.2021, passed by the learned Judicial Magistrate First Class, Mangrole, Dist.: Surat, in CC No. 3393 of 2021, taking cognizance of the offence under Section 138 of the Negotiable Instrument Act (N.I. Act, for short).
The case of the applicant accused is that, as no list of witnesses were filed along with the complaint, no process could have been issued against him in violation of Section 204(2) of Cr.P.C. Learned Counsel appearing for accused submitted that no summons shall be issued against the applicant accused under Section 204(1) until a list of prosecution witnesses has been filed. He further submitted that the said provision is mandatory in nature and complainant having not furnished the list of witnesses, the issue of process against the applicant accused is improper and illegal. Additionally, there was no disclosure as to the witnesses whom the complainant would be examining is also improper and illegal and therefore, the order of issuance of summons passed below Exh. 1 is required to be quashed and set aside.
Observations of the Court
The court after perusal noticed that copy of the complaint lodged before the Court is not produced before this Court. In regard to section 204(2) of Cr.P.C the court is of the opinion that the object of the provision is to give sufficient notice to the accused of the allegations which are made against him on which he sought to be prosecuted and also of the nature of the evidence which the prosecution proposes to adduce against the accused. They also referred Premila Mahesh Shah Vs. Employees State Insurance and another, (2002) Cri. L.J 2454 in which it was held that non-compliance of the provision of Section 204(2) of the Cr.P.C does not affect the jurisdiction of the Magistrate, either to issue process or to try the case. The procedural laws are handmade of justice and the question of prejudice is of paramount consideration in respect of breach of procedural provisions. Therefore, even if it was to be held that the provisions of Section 204(2) are mandatory, that, by itself, would not vitiate the issue of process or the jurisdiction of the Court and where the matter is at the initial stage, directions can be given to furnish the copy of the list witnesses, if any, before the proceedings actually commenced.
On the case on hand, the trial is yet to commence and therefore, the applicant accused failed to show that what kind of prejudice caused to him by non-compliance of the provision of Section 204(2) of the Cr.P.C. He had also not filed the copy of the complaint. Moreover, Section 145 of the NI Act, which is parimateria to Section 254(2) of Cr.P.C also empowers the Magistrate to issue summons and examine any witness, on the application of the prosecution and/or complainant. The same is not confined only to the witnesses enlisted in the complaint or furnished by way of separate list.
Decision:
The present application is dismissed because no impropriety or illegality can be said to have been committed by the learned Magistrate in taking cognizance of the offence under Section 138 of N.I. Act, so as to warrant any interference.
Case: Nagraj Infracon Pvt. Ltd Thro Rameshbhai P. Patel (Jakhadiya R.P.) vs Shivam Petroleum, A Proprietary Firm Thro Dilipsinh D. Surma
Citation: R/SPECIAL CRIMINAL APPLICATION NO. 11248 of 2022
Coram: Justice Ilesh J. Vora
Dated: 16.11.2022
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