- Bookmark
- Share
- CaseIQ
Babu Ram v. State Of Uttar Pradesh
Factual and Procedural Background
This revision challenges an order dated 29-4-1976 of the Additional Sessions Judge, Bulandshahr, which set aside a Magistrate's order dated 1-11-1975 dismissing a complaint. On 4-8-1975 O.P. No. 1 (Prem Pal) filed a complaint under Sections 436, 504 and 506 I.P.C. The Magistrate took evidence under Section 202 Cr.P.C., examined some witnesses, and on 4-8-1975 passed an order summoning the applicants for trial under Section 436 I.P.C., fixing 1-11-1975 for appearance. On 1-11-1975 O.P. No. 1 did not appear and the office reported that O.P. No. 1 had not taken steps to have the accused summoned. The Magistrate dismissed the complaint under Section 204 Cr.P.C. O.P. No. 1 moved in revision; the Additional Sessions Judge allowed the revision by order dated 29-4-1976, set aside the Magistrate's dismissal, and directed the Magistrate to proceed from the stage on which the order dated 4-8-1975 was passed. The applicants sought this further revision before the present Court.
Legal Issues Presented
- Whether the Magistrate was legally authorized to dismiss the complaint under Section 204(4) Cr.P.C. for non-deposit of process fees when the offence charged was under Section 436 I.P.C.
- Whether the Magistrate could dismiss the complaint for non-appearance of the complainant on the date fixed (1-11-1975) in a case under Section 436 I.P.C.
- Whether, having examined only some witnesses and having summoned the accused under Section 436 I.P.C., the Magistrate complied with the requirements of Section 202 Cr.P.C. in a case triable exclusively by the Court of Session.
- Whether the Additional Sessions Judge erred in directing the Magistrate to proceed from the stage subsequent to the order dated 4-8-1975, despite the Magistrate not having fully complied with Section 202 Cr.P.C.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court reviewed the orders below and the statutory provisions relied upon. It noted that the Magistrate dismissed the complaint under Section 204(4) Cr.P.C. on two grounds: (a) the complainant's non-appearance on the date fixed, and (b) that the complainant had not taken steps to have the accused summoned (characterized by the Magistrate as non-deposit of process fees). The Court analyzed these grounds as follows:
- Section 204(4) Cr.P.C. permits dismissal where process fees are payable and not paid within a reasonable time. In the present case the offence charged (Section 436 I.P.C.) is cognizable, and the law does not require the complainant to pay process fees for summoning the accused. Therefore the Magistrate had no authority to dismiss the complaint on the ground of non-payment of process fees.
- No statutory provision was shown that permitted dismissal of the complaint for the complainant's non-appearance on the date fixed in a case under Section 436 I.P.C.; hence dismissal on that ground was not justified.
- The Additional Sessions Judge was correct to set aside the Magistrate's dismissal of 1-11-1975. However, the Sessions Judge's direction that proceedings be resumed from the stage after the order dated 4-8-1975 was improper because on 4-8-1975 the Magistrate had only examined some of the complainant's witnesses and had already summoned the accused.
- For cases triable exclusively by the Court of Session (as with an offence under Section 436 I.P.C.), Section 202 Cr.P.C. requires that the complainant be called to produce all his witnesses and be examined on oath before the Magistrate decides to summon the accused. The Magistrate's partial examination of witnesses (including examining some as court witnesses) and summoning the accused without requiring production of all witnesses was contrary to Section 202 Cr.P.C.
- Accordingly, the Sessions Judge's direction to proceed from the post-4-8-1975 stage effectively perpetuated a procedural error; the correct course is to require the Magistrate to examine all witnesses produced by the complainant and, only if satisfied that a prima facie case exists, to summon the accused.
Holding and Implications
Holding: The revision is allowed in part. The order of the Additional Sessions Judge dated 29-4-1976 setting aside the Magistrate's order dated 1-11-1975 is maintained, but the Sessions Judge's direction that proceedings be continued from the stage subsequent to the order dated 4-8-1975 is set aside. The Magistrate is ordered to comply with Section 202 Cr.P.C.: he must examine all witnesses produced by O.P. No. 1 and, only if satisfied that a prima facie case is made out against the applicants, summon them. The stay order dated 16-7-1976 is vacated. The petition is partly allowed.
Implications: The direct effect is that the Magistrate's dismissal of the complaint is nullified and the Magistrate must re-conduct proceedings consistent with Section 202 Cr.P.C. There is no discussion in the opinion of broader legal implications or the setting of any new precedent beyond the application of the cited statutory provisions to the facts of this case.
1. This revision is directed against an order dated 29-4-76 passed by Additional Sessions Judge Bulandshahr in a case arising out of complaint filed against the applicants under Sections 436, 504 and 506 I.P.C
2. O.P No. 1 (Prem Pal) filed a complaint against the applicants under Sections 436, 504 and 506 I.P.C on 4-8-1975. The Magistrate took evidence under S. 202 Cr. P.C and summoned the applicants for trial under S. 436 I.P.C fixing 1-11-1975 for their appearance. On 1-11-75 O.P No. 1 did not appear in Court. It was also brought to the notice of the Court by the office that O.P No. 1 had not taken steps for summoning the accused applicants.
3. The Magistrate, therefore, dismissed the complaint under S. 204 Cr. P.C O.P No. 1 went up in revision and his revision was allowed by Additional Sessions Judge Bulandshahr, vide order dated 29-4-76. Through this order, order dated 1-11-75 passed by the Magistrate dismissing the complaint was set aside and the Magistrate was directed to proceed with the case from the stage on which order dated 4-8-1976 was passed. The applicants felt aggrieved with this order and have now come up in revision to this Court.
4. I have heard the learned counsel for the parties at sufficient length and have also gone through the orders passed by the Court below. The order passed by the Magistrate shows that he had dismissed the complaint under S. 204(4) Cr. P.C on the ground that O.P No. 1 had not appeared in court on the date fixed and also on the ground that O.P No. 1 had not taken steps for summoning the applicants. Section 204(4) provides that where any process fee is payable under any law, no process shall be issued until the fees are paid and if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. In this case, as stated above, the applicants had been summoned for trial under S. 436 I.P.C Offence under S. 436 I.P.C is a cognizable offence. In a case under S. 436 I.P.C the law does not provide that the complainant has to pay any process fees for summoning the accused. It was, therefore, not at all necessary for O.P No. 1 to have paid any process fees for summoning the applicants in the case. The Magistrate was, therefore, not authorized under law to dismiss the complaint for non-deposit of any process fees by O.P No. 1. The Magistrate could not also have dismissed the complaint for non-appearance of O.P No. 1 on 1-11-1975. No provision of law has been shown under which the learned Magistrate could have dismissed the complaint because of the non-appearance of O.P No. 1 in this case, which was a case under S. 436 I.P.C The learned Additional Sessions Judge was, therefore, absolutely correct when he set aside the Magistrate's order dated 1-11-75 dismissing the complaint under S. 204 Cr. P.C I, however, find that while restoring the complaint the learned Additional Sessions Judge directed the Magistrate to proceed with the case from the stage subsequent to the passing of the order dated 4-8-75. This direction of the learned Additional Sessions Judge, to my mind, was neither proper nor in accordance with law. On 4-8-75 some witnesses produced by O.P No. 1 were examined and then an order was passed summoning the applicants for trial under S. 436 I.P.C If a case triable exclusively by the Court of Session is instituted on a complaint, the law as contained in S. 202 Cr. P.C enjoins that the accused should be summoned only when the Magistrate has called upon the complainant to produce all his witnesses and examined them on oath. The case before us was undoubtedly a case triable exclusively by the Court of Session. It was, therefore, not at all proper on the part of the Magistrate to have examined some witnesses of the complainant only and then summoned the accused. I find that the Magistrate had examined some witnesses as Court witnesses also. This was not in accordance with law at the stage on which they were examined. The complainant should have been called upon to produce all his witnesses and then the Court should have found out whether a prima facie case against the accused was made out or not. If the Magistrate felt that a prima facie case was made out against the accused, then and then only he should have summoned the accused. The summoning of the accused applicants in this case was not proper as full compliance of the provisions of S. 202 Cr. P.C had not been done. In view of this the order passed by the Additional Sessions Judge that the Magistrate should proceed with the case from the stage subsequent to the passing of the order dated 4-8-75 was not proper. Instead the Magistrate should have been asked to examine all the witnesses produced by the complainant and thereafter if he felt satisfied that a prima facie (case) was made out against the applicants, then he should have summoned them. The summoning of the applicants without full compliance of the provisions of S. 202 Cr. P.C was not at all proper.
5. In the result, I allow the revision in part and maintain the order of the Court below setting aside the Magistrate's order dated 1-11-75. The other part of the order is set aside and the Magistrate is ordered to proceed with the case after complying with the provisions of S. 202 Cr. P.C as mentioned above. He should first examine all the witnesses produced by O.P No. 1 and if he feels satisfied that a prima facie case is made out against the applicants then he should summon them. Stay order dated 16-7-1976 is vacated.
6. Petition partly allowed.
Alert