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TMI Blog2004 (8) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... aint under sections 120A, 120B, 405, 406, 415, 420, 463, 465 and 468 of the IPC against the appellant and other respondents herein alleging that the respondents have cheated and defrauded him. Taking cognizance of the said complaint on 26.5.1992 the learned Metropolitan Magistrate summoned the appellants herein and other accused by issuing process under section 204 of the Code of Criminal Procedure (the Code) for offences confined to section 420 read with 120B IPC. Being aggrieved by the said order of issuance of process the appellant and some of the accused moved the High Court and the High Court in the said petition directed the petitioners therein to move the trial court against the order of summoning. Pursuant to the said order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench. However said case of Nilamani (supra) got settled out of court hence the issue involved in Mathew's case (supra) was not decided by the larger Bench. Therefore on 3.12.2002 this Court directed that the present appeal be placed before a 3-Judge Bench with a view to consider the correctness of the law laid down by this Court in Mathew's case (supra). It is in this background this appeal has now come up for our consideration. As noticed above it is the correctness of the view expressed by this Court in Mathew's case which is now to be considered by us. It was held in Mathew's case (supra) that section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking cognizance and issue of summons to the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Magistrate on being satisfied at the instance of the summoned accused to reconsider its decision of issuing summons under section 204. This Court in that case also held that the Magistrate issuing the summons can do so only on there being material to issue summons hence summons erroneously issued can be recalled by the Magistrate for which no specific provision is required. Having heard the learned counsel for the parties and having considered the judgment of this Court in the case of Mathew (supra) we are unable to agree with the law laid down by this Court in the said case. If we analyse the reasons given by this Court in the said case of Mathew then we notice that the said view is based on the following facts : (a) The jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the evidence adduced at that stage has materials to proceed, he can proceed to issue process under Section 204 of the Code 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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