Madras High Court
Sabarinathan ...Revision vs A.Godwin Jegadeeskumar on 9 March, 2022
Crl.R.C(MD)No.831 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH Court
DATED: 09.03.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.831 of 2021
Sabarinathan ...Revision Petitioner/Respondent/Petitioner
Vs.
A.Godwin Jegadeeskumar .... Respondent/Petitioner/Respondent
Prayer: This Criminal Revision Petition filed under Section 397, r/w.401 of
Cr.P.C. to call for the records pertaining to the order passed by the learned
Judicial Magistrate II, Madurai in Cr.M.P No.190 of 2019 in C.C No.502 of
2012 dated 07.05.2021 and set aside the same.
For Petitioner : Mr.K.Navaneetharaja
For Respondent : No Appearance
ORDER
This Criminal Revision Petition has been filed to set aside the order
passed by the learned Judicial Magistrate II, Madurai in Cr.M.P No.190 of 2019
in C.C No.502 of 2012 dated 07.05.2021.
2.Originally, the petitioner's mother lodged a complaint before the
respondent, when he was working as Inspector of police, Sellur Police Station,
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Crl.R.C(MD)No.831 of 2021
Madurai. But, he failed to take any action on her complaint. As such, she
lodged a complaint before the Assistant Commissioner of Police, Thallakulam
on 18.01.2011. Thereafter the respondent herein received a complaint and
issued CSR No. 40 of 2011. On receipt of the same, again the respondent failed
to take any action against the said CSR. On taking sworn statement from the
petitioner's mother, the trial Court has taken cognizance as against the accused
Nos.1 to 3, for the offences under Section 448, 323, 324 and 506(2), 120(b) r/w
34 IPC and as against the respondent, for the offence under Sections 217, 506(i)
IPC. Thereafter, issued summons to the respondent and the respondent filed a
petition for discharge, under Section 239 Cr.P.C and 197 Cr.P.C. The Court
below allowed the petition and discharged the respondent herein, on the ground
that no specific allegation as against the respondent, to attract the offence under
Sections 217, 506(i) IPC.
3.Though, notice served for the respondent, no one represented on behalf
of the respondent, through his counsel.
4.The learned counsel appearing for the petitioner raised a ground that in
summons case no discharge petition is maintainable, since the offence under
Sections 217 and 506(i) IPC, are punishable with an imprisonment for 2 years,
or fine, or both. In support of his contention he also relied upon the Judgment
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Crl.R.C(MD)No.831 of 2021
reported in 2004(7) SCC 338, in which, the Hon'ble Supreme Court of India has
held that
“11.We will examine the above findings of this Court in the background
of the scheme of the Code which provides for consideration of
complaints by Magistrates and commencement of proceedings before
the Magistrate which is found in Chapters XV and XVI of the Code;
12.Section 200 contemplates a Magistrate taking cognizance of an
offence on complaint to examine the complaint and examine upon oath
the complainant and the witnesses present if any. If on such
examination of the complaint and the witnesses, if any, the Magistrate
if he does not want to postpone the issuance of process has to dismiss
the complaint under Section 203 if he comes to the conclusion that the
complaint, the statement of the complainant and the witnesses has not
made out sufficient ground for proceeding. Per contra if he is satisfied
that there is no need for further inquiry and the complaint, the
evidence adduced at that stage has materials to proceed, he can
proceed to issue process under Section 204 of the Code.
13.Section 202 contemplates: postponement of issue of process : It
provides that if the Magistrate on receipt of a complaint if he thinks fit,
to postpone the issuance of process against the accused and desires
further inquiry into the case either by himself or directs an
investigation to be made by a Police Officer or by such other person as
he thinks fit for the purpose of deciding whether or not there is
sufficient ground for proceeding, he may do so. In that process if he
thinks it fit he may even take evidence of witnesses on oath, and after
such investigation, inquiry and the report of the Police if sought for by
the Magistrate and if he finds no sufficient ground for proceeding he
can dismiss the complaint by recording briefly the reasons for doing so
as contemplated under Section 203 of the Code.
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Crl.R.C(MD)No.831 of 2021
14.But after taking cognizance of the complaint and examining the
complainant and the witnesses if he is satisfied that there is sufficient
ground to proceed with the complaint he can issue process by way of
summons under Section 204 of the Code. Therefore what is necessary
or a condition precedent for issuing process under Section 204 is the
satisfaction of the Magistrate either by examination of the complainant
and the witnesses or by the inquiry contemplated under Section
202 that there is sufficient ground for proceeding with the complaint
hence issue the process under Section 204 of the Code. In none of these
stages the Code has provided for hearing the summoned accused, for
obvious reasons because this is only a preliminary stage and the stage
of hearing of the accused would only arise at a subsequent stage
provided for in the latter provision in the Code. It is true as held by this
Court in Mathew's case before issuance of summons the Magistrate
should be satisfied that there is sufficient ground for proceeding with
the complaint but that satisfaction is to be arrived at by the inquiry
conducted by him as contemplated under Sections 200 and 202, and
the only stage of dismissal of the complaint arises under Section 203 of
the Code at which stage the accused has no role to play therefore the
question of the accused on receipt of summons approaching the Court
and making an application for dismissal of the complaint
under Section 203 of the Code for a reconsideration of the material
available on record is impermissible because by then Section 203 is
already over and the Magistrate has proceeded further to Section
204 stage.
15.It is true that if a Magistrate takes cognizance of an offence, issues
process without there being any allegation against the accused or any
material implicating the accused or in contravention of provision
of Sections 200 & 202, the order of the Magistrate may be vitiated, but
then the relief an aggrieved accused can obtain at that stage is not by
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Crl.R.C(MD)No.831 of 2021
invoking Section 203 of the Code because the Criminal Procedure
Code does not contemplate a review of an order. Hence in the absence
of any review power or inherent power with the subordinate criminal
Courts, the remedy lies in invoking Section 482 of Code.
16.Therefore, in our opinion the observation of this Court in the case
of Mathew (supra) that for recalling an order of issuance of process
erroneously, no specific provision of law is required would run counter
to the Scheme of the Code which has not provided for review and
prohibits interference at inter-locutory stages. Therefore, we are of the
opinion, that the view of this Court in Mathew's case (supra) that no
specific provision is required for recalling an erroneous order,
amounting to one without jurisdiction, does not lay down the correct
law.
5.In the above case, it is held that if a Magistrate takes cognizance of an
offence, issues process without there being any allegation against the accused or
any material implicating the accused or in contravention of provision
of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the
relief an aggrieved accused can obtain at that stage is not by invoking Section
203 of the Code, because the Criminal Procedure Code does not contemplate a
review of an order. Therefore, there is no question of discharge in the summons
case that too operation of summon under Section 204 Cr.P.C.
6.In view of the above, this Criminal Revision Petition is allowed and the
impugned order passed by the learned Judicial Magistrate II, Madurai in Cr.M.P
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Crl.R.C(MD)No.831 of 2021
No.190 of 2019 in C.C No.502 of 2012 dated 07.05.2021, is set aside. The
learned Magistrate is directed to proceed with the trial, as against all the
accused persons and complete the trial within six months, from the date of
receipt of a copy of this order.
09.03.2022
Index :Yes/No
Internet:Yes/No
PNM
Note: In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the responsibility
of the advocate/litigant concerned.
To
1. The Judicial Magistrate II, Madurai.
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Crl.R.C(MD)No.831 of 2021
G.K.ILANTHIRAIYAN,J.
PNM
ORDER IN
Crl.R.C(MD)No.831 of 2021
09.03.2022
https://www.mhc.tn.gov.in/judis
