K.K. Suri vs V.N. Mehta
1973 Latest Caselaw 289 Del

JUDGMENT

P.S. Safeer, J.

(1) This petition raises the grievance that the petitioner was denied full opportunity to adduce evidence at the stage at which he was examining witnesses for urging that the charge be framed against the accused.

(2) In the course of the arguments I was referred to the various stages of the proceedings before the trial Court and perused the order passed on the 24th of September, 1973 summoning the accused in exercise of the jurisdiction provided by section 204 of the Criminal Procedure Code, hereafter called "the Code".

(3) After collecting the evidence in the manner prescribed by section 202 and postulated in section 203 of the Code the trial Court reaches a stage when it has to apply its mind for determining whether action is to be taken under section 203 or section 204 of the Code. (The provisions are then reproduced.)

(4) Section 203 of the Code gives the power to the trial Court to dismiss the complaint where after considering the statement on oath, if any, made by the complainant and the evidence produced by him or the result of any investigation or inquiry made under section 202 of the Code in its judgment there is no ground for proceeding against the accused.

(5) Section 204 of the Code, on the other hand, gives the jurisdiction that if in its opinion sufficient ground is made out for proceeding against the accused the Court may issue the summons to the accused to stand trial.

(6) I am affirmed in the view that there arises a stage in the proceedings at which the trial Magistrate has to bear in mind the provisions contained in sections 203 and 204 of the Code at one and the same time and has then to decide as to under which and to what extent action is to be taken.

(7) No order made by any Court even in exercise of competent jurisdiction can be held judicial if it suffers from patent arbitrariness. I am persuaded that the principle of natural justice that no person shall be condemned unheard is at par with the juridical principle that where without applying the mind to the record an order is passed in colourable exercise of statutory power it shall not be deemed to be a judicial order. There is no warrant in section 204 of the Code that the trial Magistrate acting within its scope can pass an arbitrary order summoning the accused. The order passed under that provision would be open to be examined by the superior Courts which its arbitrariness will not permit. The Court exercising revisionary jurisdiction is not to dive into the mind of the trial Magistrate in case of an unreasoned order. The jurisdiction provided by section 439 of the Code is exceptional and is to be exercised where substantive illegality has caused miscarriage of justice.

(8) As expressed in Udey Bir Singh V. Smt. Shakuntia Devt 1973. Rajdhani L.R. 412 =1973 P.L.R. 271 a Magistrate may pass a composite order while acting under section 203 and 204 of the Code. Where a complaint is against several persons and it is alleged that they have committed several offences then exercising the jurisdictions provided by the two provisions complaint may be dismissed in respect to some of the persons and that too with regard to particular offences. The Court may still in the same order express its opinion based on sufficient grounds that there was a case for summoning some of the persons in respect of certain offences.