Law: Criminal Procedure Code (V of 1898)

Section: 202, 204

  Criminal Procedure Code (V of 1898), Ss. 202 & 204-Issue of process--Magistrate making over complaint to police for report under S. 202 but without waiting for such report issuing process for appearance of accused-Magistrate, held, should not have summoned accused without first considering report of enquiring officer-Order set aside, The position appears to be incontrovertible that where the Magistrate after the perusal of the complaint and the statement of the complainant postpones the issue of processes for compelling the attendance of the persons complained against and directs an enquiry or investigation to be made by another Magistrate subordi nate to him or by police officer or by such other persons as he thinks fit for the purposes of ascertaining the truth or falsity of the complaint, he should not summon the accused person unless he has considered the report of the enquiring officer, for the simple reason that there is no material before him to dispel the doubt in his mind which initially prompted him to order enquiry before summoning them. It is no doubt true that the Magistrate had jurisdiction to summon the accused persons immediately on the receipt of the complaint and examination of the complainant on solemn affirmation. However, when he prima facie distrusts the truth of the complaint, he is empowered under section 202 of the Code of Criminal Procedure to direct an enquiry for ascertaining of the truth or falsehood of the complaint. It is, therefore, not a sound exercise of judicial discretion on his part to issue process before the doubt, which was at the root of the submission of the case for enquiry, was removed. It is obvious that where a Magistrate distrusting the truth of the com plainant directs an investigation under section 202, Cr. P. C. but instead of waiting for the report issues summons or warrants against the petitioners, the order is irregular, because no fresh materials were before him to remove the doubt which he initially entertained. Pulin Behari Ghose v. The King 53 C W N 653; Azizur Rehman and others v. The State and another P L D 1960 Dacca 631; Krishna Bala Dasi v. Niroda Bala Dasi A I R 1925 Cal. 989; Ram Pershad…