2004 (8) TMI 647 - SC - Indian Laws

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

Summary

Issues involved:
Jurisdiction of a Magistrate to recall a summons issued under section 204 of the Code of Criminal Procedure.

Detailed Analysis:

1. Background of the Case:
The case involves an appeal against the High Court's judgment that set aside the trial court's order and remanded the matter for disposal in accordance with the law. The complaint alleged cheating and fraud under various sections of the IPC, leading to the issuance of summons by the Metropolitan Magistrate. The appellant challenged the order of summons recall, arguing that the Magistrate lacked jurisdiction.

2. Legal Precedents and Interpretation:
The appellant relied on the judgment in K.M. Mathew v. State of Kerala & Anr., which allowed the court issuing summons to recall it if not in accordance with the law. However, the correctness of this judgment was questioned, leading to a referral to a larger bench. The court emphasized that the Magistrate's power to recall a summons is based on judicial discretion and does not require a specific provision.

3. Examination of Legal Provisions:
The court analyzed the provisions of the Code of Criminal Procedure, highlighting the stages of complaint consideration by the Magistrate under Sections 200, 202, and 203. It noted that the satisfaction of the Magistrate regarding sufficient grounds for proceeding is essential before issuing a summons under section 204. The Code does not provide for the summoned accused to intervene at the preliminary stage.

4. Review and Remedies:
The court clarified that if a Magistrate issues process without proper allegations or contravening provisions, the remedy for the accused lies in invoking Section 482 of the Code, not through a review under Section 203. The absence of review power or inherent power with subordinate criminal courts reinforces the need for adherence to the Code's scheme.

5. Conclusion and Judgment:
The court disagreed with the previous judgment's view that recalling an erroneous order of issuance of process does not require a specific provision. It emphasized that the Code does not allow for review or interference at interlocutory stages. Consequently, the court upheld the High Court's judgment, dismissing the appeal.

In summary, the Supreme Court analyzed the Magistrate's jurisdiction to recall a summons under section 204 of the Code of Criminal Procedure, emphasizing the procedural requirements and limitations under the Code. The court's detailed examination of legal provisions, precedents, and remedies led to the conclusion that recalling an erroneous order without jurisdiction requires adherence to the Code's scheme, ultimately affirming the High Court's decision in the case at hand.