This section relates to the procedure for affecting such attendance. The order issuing the process is an interim order and can be varied or recalled. The fact that the accused has already been summoned is no bar to drop the proceedings if the complaint does not disclose any offence against the accused.
The Magistrate issues summons for appearance of the accused under this section. However, before issuance of summons to the accused, the Magistrate must make sure that there exists a prima facie case. He need not inquire into detailed discussion and merits of the case at this stage.
This section does not require the Magistrate to record reasons for issuing process because the very issuance of such process implies that he has applied his mind to the facts of the case and formed an opinion that there is sufficient ground for proceeding with the case.
Sub-section (1) provides that no summons or warrant, as the case may be, shall be issued against the accused until a list of prosecution witnesses has been filed by the complainant. This provision is mandatory being intended to safeguard the interest of the accused person. Commenting on the mandatory nature of this provision the Full Bench of the High Court of Jammu and Kashmir, in Abdullah Bhatt v. Ghulam Mohammad has inter alia observed:
“This provision serves two-fold purpose. One, to apprise the accused at the earliest opportunity of the persons who are likely to give evidence against him, and second, to scuttle any attempt on the part of the complainant subsequently to improve the state of evidence by made-up witnesses.”
Sub-section (2) provides that the names of witnesses can be given in the complaint itself or and in that case no separate list of witnesses need be filed. ‘The complainant may also provide an additional list of witnesses after filing complaint. With a view to enabling the accused to know in advance the evidence which the complainant is likely to produce against him, the Court must insist on a list of witnesses being filed before the issuance of process.
Sub-section (3) requires that where the complaint has been filed in writing, every summons or warrant issued in respect of such complaint shall accompany a copy of the complaint so that the accused may know the precise charges or allegations against him. But the accused cannot refuse to accept the summons even though the copy of the complaint is not supplied to him along with the summons. This clearly indicates that the provision contained in 204 (1) is directory and not mandatory.
Sub-section (4) enables a Magistrate to dismiss a case for default of payment of process fees within a reasonable time. But in case of a cognizable offence, the Magistrate has no power to dismiss the complaint on the ground of non-deposit of the process fees.
The order of the Magistrate issuing process against the accused- under this section may be quashed or set aside on the following grounds:—
(1) Where the facts stated in the complaint make out no case against the accused or the complaint does not disclose essential ingredients of an offence which is alleged against the accused.
(2) Where allegations made are patently absurd or improbable.
(3) Where the discretion exercised by the Magistrate in issuing the process appears to be capricious or arbitrary or is based on the evidence or material which is wholly irrelevant or inadmissible
(4) Where the complaint suffers from some fundamental legal defect such as want of sanction etc.
(5) Where the allegations disclose that the dispute is of a purely civil nature.
In Punjab National Bank v. Surendra Prasad Sinha, the Supreme Court held that before issuing the process the Magistrate should find out whether concerned accused should be legally held responsible for the offence charged.
In the instant case, the Bank adjusted the amount of securities deposited by the guarantor towards the debt after the expiry of limitation period. Thereupon, the guarantor filed a complaint against the officers of the bank under Sections 109/114/409, IPC and the Magistrate issued process
against all the officers of the Bank.
The Supreme Court found that there was no prima facie case against the accused and the complaint was lodged merely to cause harassment to the accused for vendetta and therefore quashed the complaint.
In Deva Nand Upadhyay v. Union of India, there was allegation of cheating and accepting illegal gratification against appellant. He did not appear in response to summons and consequently a non-bailable warrant of arrest was issued against him for securing his presence.
The order rejecting application for dispensing with his personal appearance was dismissed on the ground that a non-bailable warrant of arrest had already been issued against him. The High Court of Patna dismissed the appeal and held that order of rejection of application for dispensing with personal appearance of the appellant was proper.
It has been held by the High Court of Jharkhand that one process was issued under Section 204, the Magistrate has no jurisdiction to recall or review the order issuing the process and dismiss the complaint.
The Supreme Court in Poonam Chand Jain v. Fazru observed that order issuing process could not be reviewed or reconsidered by Magistrate. Any order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order.
As the High Court in the instant case had not considered the legality of the order directing issuance of process by the Special Court keeping in view the law laid down by the Apex Court, the case was remitted to the High Court to record positive findings on the relevant issue.