2004 (8) TMI 647 - SUPREME COURT

Whether before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint?

Held that:- 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 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.

Therefore, in our opinion the observation of this Court in the case of Mathew (1991 (11) TMI 129 - SUPREME COURT OF INDIA) 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.

Thus it is not necessary for us to go into the question whether order issuing a process amounts to an interim order or not. We are in agreement with the judgment of the High Court impugned herein. This appeal fails