JUDGMENT
P.S. Safeer, J.
(1) This order will dispose of Criminal Revision No. 449 of 1972 as well. A petition was filed before the Sessions Judge, Delhi by Manohar Lal Sharma against the order made under section 204 of the Criminal Procedure Code, hereafter called “the Code” on the 16th of September, 1972 by Mr. J.M Malik, Judicial Magistrate 1st Class, Delhi. Another petition against the same order was filed by Shri R L Taluja, Advocate. The contention raised was that the order had been passed by the Judicial Magistrate without applying his mind to the statement of the complainant and the evidence produced by him.
(2) These petitions have come up before me in consequence of the order made by Shri N.C. Kochhar, Addl. Sessions Judge, on the 6th of December, 1972 in exercise of his jurisdiction under section 438 of the Code.
(3) The order, assailed before the Addl. Sessions Judge, may be reproduced:- “Present: Complainant with his counsel. A prima facie case under section 500/502 Indian Penal Code is made out against the accused persons. Summons be issued to both the accused. Process fee and copies be deposited within two days. To come up for the presence of the accused on 18th October, 1972. 16th September. 1972. sd/- (J.M. Malik)” At the very out-set I have asked the counsel appearing for the respondent to interpret section 204 of the Code and persuade me that the order receives sanction from that provision. I have heard him also in respect of the precise controversy involved in these petitions. Sections 203 and 204 of the Code, may be reproduced here :- “S. 203. The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under section 202, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for go doing. S. 204(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appeals lobe one in which according to the foruth column of the second schedule, a summons should issue in the first instance, be shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to the column, a warrant should issue in the first instance, 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 lime before sueh Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction. (IA) No summons or warrant shall be issued against the accused undersubsection (1) until alist of the prosecution witnesses has been filed (lB) 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. (2) Nothing in this section shall be deemed to affect the provisions of section 90(3) 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”. The same material is available to the Magistrate at the time of deciding whether he has to proceed under section 203 or section 204 of the Code. Several persons may be accused of several offences. While applying his mind to the evidence adduced before him, the Magistrate will have to find out as to wbether he is to dismiss the complaint in respect of some of the offences and in respect of the accused and yet to proceed against other accused for some of the offence? under section 204 of the Code. He has to apply his judicial mind to all the evidence made available to him. While dealing with section 203 of the Code in Vadilal Panchal v. Dattatraya, in paragraph 10 it was observed :- “It is manifestly clear from the provisions of section 203 that the judgment which the Magistrate has to form must be based on the statements of the complainaht and his witnesses and the result of the investigation or inquiry.”
Similar observations were made by the Supreme Court in /. Pramathn Nath Talukdar (in Cr.A. No. 75 ’61) and 2. Surendra Mohan Basil (in Cr. A. No. 77161) v. Saroj Ranjan Sarkar. In paragraph 48, the Supreme Court, observed :- ” He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding.” The observations made by the Supreme Court make it clear that at the stage at which the Magistrate is to decide whether he is to act under section 203 or section 204 of the Code be is to apply his judicial mind to the material before him and has to come to judgment whether or not he is o issue process and if so against which of the accused and for which of the offences. In paragraph 5 of the judgment dated the 23rd of March, 1973 by which Crl. Revision No. 3 of 1973 was disposed of while dealing with both the provisions, I observed :- “The afore-quoted observations applies with equal force to sections 203 and 214 of the Code. The Magistrate has, while acting under either of them, to apply his mind to the material and then form the judgment whether he is to proceed or not against the accused. The opening words used in section 204 of the Code make it obligatory that the opinion of the Magistrate must be based on sufficient grounds, which must be apparent from the order which he may pass and be available for judicial scrutiny at the hands of the Courts of superior jurisdiction. Where an order is passed under section 204 of the Code summoning any person, in case such person fails to appear inspite of service be is liable to be arrested in consequence of a warrant which may then be issued to secure his presence. The foundation of issuance of a warrant would be the noncompliance with the summons served. The summons, however, will find its sanction in the order passed under section 204 of the Code. Such an order, however, wide the discretion may be, must be a speaking order making ii manifest that the discretion has been judicially exercised. An order passed under section 204 of the Code is open to scrutiny within the scope of section 439 of the Code. The order must, therefore, state the sufficient grounds which may have led to the formation of the opinion that a case had been made out for proceeding against the accused persons ”
In this case I find that the impugned order dated the 16th of September. 1972 suffers from arbitrariness It does not disclose that the judicial mind was applied, to the evidence available before the Magistrate. The order should have been a speaking order disclosing that the Magistrate had found sufficient grounds for proceeding against the two petitioners. In its prescat state, the order does not contain any material which may be open to any judicial scrutiny. The impugned order, therefore, is quashed. The complainant is directed to appear before the trial Court on the 10th of May, 1973. After hearing the complainant the trial court may pass an appropriate order bearing in mind the observations made herein. These two petitions are disposed of,
