TMI Blog2004 (8) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of summoning. Pursuant to the said order of the High Court the appellant herein filed an application purported to be under section 203 Cr.P.C. on 10.3.1993 and the learned trial Judge by his order dated 28.1.1995 after hearing the parties recalled the said summons. The said order of the learned Magistrate recalling the summons originally issued by him was challenged before the High Court on the ground that the Magistrate had no jurisdiction to recall a summons issued under section 204 of the Code. The High Court by the impugned order has allowed the revision petition holding that while the trial court was justified in taking cognizance of the offences punishable under section 420 read with 120B IPC it erred in recalling the conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces upon taking cognizance and issue of summons to the accused. When the accused enters appearance in response to the summons the Magistrate has to take proceedings under Chapter XX of the Code. It was further held that the need to try the accused arises only when there is an allegation in the complaint that the accused has committed the crime. Hence, if there is no allegation in the complaint involving the accused in the commission of the crime it is implied that the Magistrate has no jurisdiction to proceed against the accused. In that background this Court held that it is open to the accused served with summons to plead before the Magistrate that the process against him ought not to have been issued and if the Magistrate is satisfied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said view is based on the following facts : (a) The jurisdiction of the Magistrate to issue process arises only if the complaint contains the allegations involving the commission of a crime; (b) If the process is issued without there being an allegation in the complaint involving the accused in the commission of a crime it is open to the summoned accused to approach the court issuing summons and convince the court that there is no such allegation in the complaint which requires his summoning; (c) For so recalling the order of summons no specific provision of law is required; (d) The order of issuing process is an interim order and not a judgment hence it can be varied or recalled. We will examine the above findings of this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation, inquiry and the report of the Police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under section 203 of the Code. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 (supra) 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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