JUDGMENT
R.R. Yadav, J.
1. Instant Misc. Petition has been filed for quashing the order dated 15.3.96 passed by the learned Civil Judge (Jr. Division) cum-Judicial Magistrate, Sujangarh arising out of Final Report No. 8/95 submitted by Police Station, Sandwa and subsequently the same final report was registered as Complaint Case No. 129/95 Budha Ram v. Shanker Lal relating to the offences under Section 354, IPC and Section 3(1)(xi) of the SC/S (Prevention of Atrocities) Act, 1989.
2. Mr. K.L. Thakur, learned Public Prosecutor raised a preliminary objection that since summoning of the accused or taking of a cognizance is an interlocutory order, therefore, neither revision lies nor proceedings under Section 482, Cr.P.C. can be initiated.
3. In my considered opinion, the aforesaid argument of the learned Public Prosecutor is mis-conceived, inasmuch as, the phraseology of Sub-section (2) of Section 397, Cr.P.C. and Section 482, Cr. P.C. enjoin that although against the Interlocutory order, no revision lies within the meaning of Sub-section (2) of Section 397, Cr.P.C. yet such orders can always be challenged under Section 482, Cr.P.C. which clearly provides that nothing in this Code of Criminal Procedure shall be demed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to; any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In fact, power of this Court under Section 482, Cr.P.C. is residuary in nature and its applicability can be extended even to interlocutory orders. Irrespective of the fact that no revision lies against an interlocutory order under Sub-section (2) of Section 397, Cr.P.C. yet the petition under Section 482 Cr.P.C. is maintainable.
4. It goes without saying that the order issuing the process or taking cognizance is an interlocutory order but that does not mean that since it is an interlocutory order, therefore, the proceedings cannot be dropped under Section 482, Cr.P.C. even if it is found by the High Court that the material collected by the investigating officer or statements recorded by the learned Magistrate on the face of it, do not disclose any offence against the accused. In my humble opinion, no person can be tried without a prima facie case against him, therefore, the preliminary objection raised by the learned Public Prosecutor is hereby over- ruled and I propose to decide the case on merit.
5. It is made clear that since, the orders of taking cognizance are passed ex parte by the learned trial courts on the basis of the materials available on record without giving an opportunity of hearing to the accused-persons, therefore, when the accused-persons put in appearance in response to the summons issued by the learned trial Courts and raised an objection that the allegations made in the complaint or evidence collected by the investigating agency or the statements recorded by it, do not constitute a crime involving them and satisfy to the learned Magistrate that if the relevant materials would have been taken into consideration, the process against them would not have been issued in such a situation, learned trial Courts itself are empowered to drop the proceedings against such accused-persons. I am of the opinion, that if such things are brought to the notice of the learned trial Courts then it would be under legal obligation to consider such arguments advanced on behalf of such accused-persons. If it is so demonstrated before the learned Magistrates that no offence is made out then they would be competent to drop the proceedings against such accused-persons. But before bringing such factual position before the learned trial Courts, accused-persons are not entitled to question the orders of taking cognizance or summoning orders passed by the trial Courts. After raising such factual position before the trial courts if the accused-persons are not satisfied they are entitled to initiate proceedings under Section 482 Cr.P.C. After initiation of such proceedings High Court would examine whether no prima facie case against such accused-persons exist and order passed by the learned trial Court amounts abuse of the process of the Court. In case, it is found by the High Court that the conditions enumerated above do exist it can pass any order as it thinks fit to secure the ends of justice not otherwise.
6. A Close scrutiny of the order impugned in the present case leads towards an irresistible conclusion that there is prima facie case against the accused- petitioner. In the present case, the evidence on record is sufficient to take cognizance as well as to summon the accused-petitioner. Although in the present case, police has submitted final report but on protest petition the learned Magistrate has examined Budha Ram, Mangi Lal, Purna Ram and Smt. Udi before taking cognizance and issuing summouns against the accused-petitioner which is eminently just and proper. In the present case, taking congnizance and summoning of the accused do not amount abuse of the process of the Court. Therefore, in the peculiar facts and circumstances of the present case, I do not consider just and proper to quash the order passed by the learned Magistrate taking congnizance and summoning of the accused. In fact in the present case, it would a futile exercise to permit the accused-petitioner to raise and argue before the learned Magistrate that no prima facie case exists against him on the basis of the material available on record.
7. It is next contended by the learned counsel for the petitioner that instead of issuing summons to the accused- petitioner, the learned Magistrate has issued non-bailable warrant against him at the first instance which is highly improper and the same deserves to be quashed.
8. Learned Public Prosecutor Mr. K.L. Thakur vehemently opposed the aforesaid argument advanced by learned counsel for the petitioner and submitted that under Section 204, Cr.P.C. if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appeals to be a summons case, he is under legal obligation to issue summons for the attendance of the accused and in case, it is found to be a warrant case, he can only issue a warrant either bailable or non- bailable.
9. I am not satisfied with the aforesaid argument of learned Public Prosecutor. It is true that if the case appears to be a summons case, a Magistrate has no option except to issue summons for the attendance of the accused but in the present case, there is a serious dispute between the parties with regard to a case triable as a warrant case. According to learned Public Prosecutor, invariably in each case, ‘triable as a warrant case’, the Magistrate has to issue either bailable or non-bailable warrant and issuing summons in such cases would be without jurisdiction. In order to resolve and adjudicate the controversy between the parties effectively, Sub-section (1)(b) of Section 204 Cr.P.C. is quoted below, which reads thus.
204. 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)….
(b) a warrant case, he may issue a warrant or if he thinks fit, a summon 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.
10. In my humble opinion, Sub-section (1)(b) of Section 204 Cr.P.C. enjoins that a learned Magistrate in his discretion may issue a warrant either bailable or non-bailable where the case is trialble as a warrant case but this does not mean that the learned Magistrate, in such cases, cannot issue summons. In fact, the Phraseology used under the aforesaid Section clearly indicates that if a Magistrate thinks fit in a particular warrant case then in his discretion ordinarily, at the first instance, instead of issuing bailable or non-bailable warrants, he can issue summons to an accused-person to procure his attendance in his Court. Discretion of a Magistrate may differ from case to case and before issuing bailable or non-bailable warrants or summons, the learned Magistrate has to apply his judicial ming to the facts and circumstances of each case.
11. In the present case, the police has submitted a Final Report and on Protest Petition, the accused-petitioner has been summoned on the basis of ex parte cognizance, therefore, it was a fit case, in which, instead of issuing non-bailable warrant, the learned Magistrate ought to have issued summons to the accused-petitioner.
12. In such a situation, I think it just and proper to maintain the impugned order passed by the learned Magistrate taking cognizance and summoning of the accused-petitioner but quash the non-bailable warrant issued by him at the first Instance to procure the attendance of the accused-petitioner. Although it is made clear that if the accused-petitioner fails to appear in response to summons issued by the learned Magistrate at the first instance, he shall be at liberty to issue bailable or non-bailable warrant in his discretion to compel the attendance of the accused-petitioner in his Court.
13. As a result of the aforesaid discussion, the present Criminal Misc. Petition is partly allowed. The order impugned passed by the learned trial Magistrate taking cognizance and summoning of the accused-petitioner is maintained with a direction that the learned trial Magistrate would re-call non-bailable warrant issued against the accused-petitioner and in place «of it, he should issue fresh summons to the accused-petitioner to procure his attendance but if the accused-petitioner fails to appear in response to summons; issued by him then he shall be at liberty to issue bailable or non-bailable warrant in his discretion to compel the attendance of the accused-petitioner in his Court.