Very Strange That Instead Of Procuring Presence Of Accused, Magistrate Dismissed The Complaint: Allahabad HC [Read Order]

"It is very strange that instead of procuring presence of the accused, the learned Magistrate dismissed the complaint," the Bench of Justice KJ Thaker remarked while quashing the dismissal order.

The Bench observed that the non-presence of an accused should be sought to be procured by way of invoking procedure as per provisions of Section 87 (Issue of warrant in lieu of, or in addition to, summons) of the CrPC. However, in the present case, instead of following the procedure, the Magistrate dismissed the complaint.

Holding the impugned order to be perverse, the Bench observed,

"The learned Magistrate has the duty cast to see that there is no misuse of the Court proceedings. In this case, there is a clear misuse of process of law by the accused who even after coming to know that summons were issued against them and their revision were dismissed, did not appear before the Court below and strange enough the learned Magistrate dismissed that matter of the complainant at the stage of issuance of bailable warrant as accused had not appeared before it pursuant to the summons already issued. There was no question of affixing process fees and, therefore, the dismissal under Section 204 of Cr.P.C. is bad."

Background

A practising advocate had filed a complaint under Section 200 of CrPC before the Chief Judicial Magistrate, Moradabad in the year 2012, about commission of offences under Section 379 (Theft), 504 (Intentional insult with intent to provoke breach of the peace) and 505 (Statements conducing to public mischief) of IPC.

After recording of the complainant's statement and that of the witnesses, the Court issued summons to the accused, one Jaibhagwan Singh, Sub Inspector.

Against the summoning order, instead of appearing before the Court, the accused preferred a revision, which was rejected vide order dated 5.2.2018. Subsequently, the Judge even sent notices to the higher authorities to procure the presence of the accused but, in vain.

Thereafter, the complainant fell sick and the judge dismissed the Complaint under Section 204(4) of CrPC (payment of process fee), vide order dated 13.8.2018.

Findings

The Court observed that the Respondent appears to be a "head strong police officer" who have not appeared before the Court since 2012, despite service of summons and dismissal of revision challenging the summoning order.

It observed,

"It is very strange that the learned Judge whose order is under challenge did not pass orders for procuring the presence of the accused."

It observed that since the summons was already issued, the requirement of process fee under Section 204(4) of CrPC was already complied with.

In this backdrop the Court held that the Magistrate ought to have proceeded with the criminal case as the presence of the complainant was not at all necessary. It said,

"Once the process fees has been affixed, it is the duty of the police authority through the Court to procure the presence of the accused unless orders otherwise are passed.

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The order passed by the learned Judge below dismissing the case is absolutely cryptic. The stage was for appearance of the accused who was evading summons and was aware that summoning order was passed. The accused is shield by Superintendent of Police, Moradabad as after notice, no action is taken by him. The revision filed by the accused was also dismissed on 5.2.2018. All these factual aspect ought to have been taken care of by the Magistrate. At stage of seeking the presence of accused, the presence of the complainant was not at all necessary."

The Court has therefore ordered the Magistrate to forthwith deal with the accused and procure his presence, "even if it has to be procured by way of non bailable warrant to be served through Superintendent of Police."

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