Summoning or Issue of Process

Our Criminal Lawyers have discussed below the law relating to “Summoning” or “Issue of Process” as it is applied by Punjab and Haryana High Court at Chandigarh.

Section 204 in The Code Of Criminal Procedure, 1973: Issue of process.
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons- case, he shall issue his summons for the attendance of the accused, or
(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear
at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process- fees or other fees are payable, 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.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.

“Taking cognizance of an offence under 190(1) and issue of process under S. 204 are judicial functions and require a judicious approach” is a proposition based on sound logic as well as on fundamental principles of justice, as a person against whom no offence is disclosed cannot be put through any harassment by the issue of process. This section pertains to the procedure for eliciting such attendance. When the court wants to proceed against any person under S. 319 Cr.P.C. it must appear to it from the evidence that the person concerned has committed some specific offence. In order to safeguard the risk of false implication, it is manifest that some hard-test has been applied for proceeding under S. 319, unlike proceeding under S. 204 of the Code when it is initial stage of the case and chance of conviction is less. Summoning any person under S. 319 of Code, is similar to S. 204 in all respects, only distinction being that at stage of S. 204 of Code no other accused is before Court while at stage when S. 318 can be invoked, some accused are already facing trial. Mere fact that the trial court had earlier ordered an investigation under S. 156(3) and received a report under S. 173 will not mean that the complaint has been effaced and hence, the Magistrate will not be barred from proceeding under S. 200, S. 203 and S. 204. Where once Magistrate had made up his mind for postponement of issue or process and directed to second statement under S. 202 of Code then subsequently on memo filed by complainant the Magistrate cannot issue process against accused. Therefore summoning order issued against accused after he had decided to postpone issue of process would be liable to be quashed. The delay in submission of charge-sheet by the State is not condoned by mere issue of process by Magistrate. The character of full dress trial, which can only take place after issuing of process and appearance of accused, is partaken by enquiry at the stage of issuing process. S. 204 is not applicable at the time of appearance of accused or when accused is brought before the Magistrate.

Court is bound to pass order either under S 203 or 204 of Code after recording statement under S. 200 and 202 of Code. In event of non compliance with process, it would be Court’s function to compel attendance of witness. It would be an error on Court’s part to decline its aid or not exercise its power to compel attendance when express resort has been made to Court. In case of issue of process after a year of filling complaint, since time spent by Magistrate was not in ordinary course of business of Court, such belated process was liable to be quashed. This section alone authorizes a Magistrate to issue process to an accused, whether he takes cognizance on a police-report or on a private complaint or on any knowledge or information other than these two. The section applies in both instances where the Magistrate takes cognizance of an offence under the Indian Penal Code as well as where he takes cognizance of an offence under any other law. Provisions of S. 87 of Code shall not be deemed to be affected by provisions of S. 204, wherein Court’s power for issuing a warrant, in lieu of or in addition to summons is preserved intact and such power may be exercised after recording its reasons in writing. Perusal of S. 87 would show that it empowers the Court to issue warrants against anyone in any situation where the Court is authorized to issue summons, while S. 204 is confined to issuance of processes against an accused at the commencement of proceedings. Instance where the Magistrate takes cognizance of offence under S.190 of Code in accordance with law and issues process against person and such person makes a grievance that he has been proceeded against without any evidence, then his grievance won’t be against taking cognizance of offence but against issue of process under S. 204 of Code. Magistrate is empowered to dismiss complaint by withdrawing process – Mere wrong quoting of provision would not disentitle the Magistrate from exercising powers vested in him. Process under S.204 against accused persons cannot be issued by the Chief Judicial magistrate who was cited as witness in complaint. If the Magistrate thinks that there is no case against the accused where the accused is already under arrest or on bail, he may discharge him or cancel the bail bond as the case may be. For taking cognizance by the Magistrate limitation is computed by considering the date on which the complaint is filed in the Court and not the date on which the process is issued.

If the Magistrate in the first instance issues non-bailable warrants against the accused in complete disregard of provision of Section 204(1) then the accused would be entitled to the grant of anticipatory bail during the pendency of the case. Even when personal attendance of accused in criminal case has not been exempted or when a warrant is issued to the accused in a complaint case under S. 204(1)(b) and the accused appears before the Magistrate after being served with summons or warrant or having come to know of the same, the Magistrate is not empowered to take him into custody and then grant judicial remand necessitating a bail application and a bail order under S. 437. The Magistrate may order the accused to be produced before the Court for inquiry or trial if he believes that there is sufficient ground for proceeding. Once summary order has been passed by the Magistrate in exercise of his judicial discretion against accused on being satisfied from material on record that prima facie a case exists against him, High Court cannot interfere with exercise of such discretion by Magistrate or Judge with respect to the merits or demerits of the case. The High Court cannot consider even the question of falsity or genuineness of allegations. Once the Magistrate has decided to follow the procedure for the trial of warrant cases, it is mandatory for him to follow the same procedure till the end of the trial. He cannot subsequently alter the procedure to the one applicable to the trial of summons cases merely because the procedure of the trial of warrant cases is more elaborate and, as such more advantageous from the accused’s perspective. A case is exclusively triable by a Court of Session and of whose cognizance has already been taken by a Magistrate; the procedure laid down in Ss. 204, 207 to 209 of the new Code is to be followed. Even where the case is a police case and the accused has been arrested and remanded to custody, the judicial proceedings against him cannot be considered as having commenced until the Magistrate has decided to act upon the charge-sheet and orders the accused to be produced from custody on a particular date to stand his trial.

Magistrate is not debarred from acting under S. 390(1)(b) by narration of same facts in affidavits, without containing any new material. Since there was no additional material before Magistrate on basis of which he had summoned the accused, the Magistrate is not required to follow procedure of complaint case. The magistrate does not have the power to invoke the provisions of S 204, Cr.P.C for the issue of process unless the charge-sheet is filed against the accused. “Initiation of proceedings”, dealt with in Chapter XIV, must precede “commencement of proceeding” covered by chapter XVI of Code and commencement of proceeding before Magistrate under Chapter XVI cannot be there without initiation of proceedings under Chapter XIV, hence it would not be proper on part of High Court in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI of Code, and in holding that complaint under FERA Act was barred by law and proceedings were liable to be quashed. In case no formal complaint has been made by the applicant or anyone else the Magistrate cannot issue summons to examine the applicant and the witnesses. The Magistrate can summon only an accused in the court and no other person for purpose of identification. If the offence is registered under S. 436, I.P.C. and the accused is summoned, the complaint cannot be dismissed for non-appearance of complainant under S. 204. It is not necessary for the complainant to be present on all dates of hearing in summons cases, since process has already been initiated after taking cognizance against accused whose presence would be required and not complainant who should be present on the date when complaint would be dismissed. Exercise of option to procure presence of accused through summons by Court under S. 204 in non-bailable case does not curtail or abridge powers of Court to consider of S. 437 of Code. In case the Magistrate after issuing process under S. 204 had gone back to position under S. 202, it was considered that he had committed irregularities in proceedings but these irregularities would not cause prejudice to the accused if he was given a chance to show that complaint was not maintainable against him, or that charges were groundless. In case the complaint was made in writing but not signed and on the same day the Magistrate had examined complainant under S. 200 and obtained signature of complainant on same day it was held that non-signing of complaint was a mere technical irregularity and did not go to root of matter and order of issuance of process would be proper. Specific allegations in complaint with respect to violation of provisions of Karnataka Agricultural Produce Marketing (Regulation) Act – Omission to mention offences by Magistrate would not be fatal and the prayer for quashing of proceedings is liable to be rejected. At the stage when prima facie a case was being looked into there wasn’t any scope for the Magistrate to call upon the accused persons and to participate in the hearing, particularly when accused had chosen not to appear prior to the stage of filing of final report. Section 204 cannot be so construed so as to fetter the power of Magistrate to issue summons to a new witness under S 244(2), Cr.P.C. The scope of Ss. 204 and 246 is completely distinct and both play in their own spheres.