JUDGMENT
R.L. Gnpta, J.
(1) The petitioner has filed a petition under Section 482 of the Code of Criminal Procedure (Code for short) for quashing criminal proceedings alleged to be pending in the Court of Additional Chief Metropolitan Magistrate, Delhi and filed by the respondent i.e. the Registrar of Companies u/Section 113(2) of the Companies Act, 1956. During the pendency of this petition the present application has been filed for stay of proceedings in the meanwhile.
(2) I have heard arguments advanced by the learned Counsel for theparties. The main contention on behalf of the petitioner is that when there is a proper challenge for quashing of proceedings under Section 482 of theCode, then till that petition is disposed off, this Court should stay theproceedings. He drew my attention to some authorities. The first case is that of Srinivas pal v. Union Territory of Arunachal pradesh . The accused in that case was charged with rash and negligent driving under Sections 279, 304A and 338 Indian Penal Code on 20.11.76.A delay of 9-1/2 years in taking cognizance was alleged. The Magistrate was alleged to have taken cognizance by invoking Regulation 32 of Assam Frontier (Administration of Justice) Regulation (1945) because the Criminal Procedure Code was not applicable at that time in the State of ArunachalPradesh. There the Magistrate took cognizance of the offence despite an objection by the accused and stated in his order that the reason why report could not be placed before the Court promptly merited detailed probing.Therefore, the appellant was charged and cognizance was taken by the Magistrate on 31.3.1986. It was in these circumstances, that the petition was filed under Section 482 of the Code wherein when the High Court refused to quash the proceedings, the same was done by the Supreme Court.In Surinder Mohan Vikal v. Ascharj Lal Chopra reported in 1978 Crl.L.J.,764, there was a complaint of defamation under Section 500 IPC. A plea was taken in that case that the complaint was time barred. The High Court when approached under Section 482 of the Code refused to quash theproceedings. The appeal was, however, allowed by the Supreme Court and the order of the Magistrate taking cognizance of the offence was quashed.Defamation complaint was preceded by a long chain of criminal prosecution of the complainant under Sections 406/420 Indian Penal Code in which he earned acquittal in almost 3 years. However, it may be noted that recently in K.M. Mathewv. State of Kerala and Another , a complaint was filed under Sections 500 and 34 Indian Penal Code against the Chief Editor of Malayala Manorama, and Printer and Publisher of the newspaper. the Magistrate took cognizance and issued summons against the accused persons.The appellant before the Magistrate requested to drop the proceedings against him on the ground that the complainant had not alleged that the Chief Editor was responsible for selection of the news item and publicationthereof. There was not even an averment in the complaint that the Chief Editor had perused the material or edited before its publication or that it was published with his knowledge or consent. This plea of the appellant was accepted by the Magistrate and proceedings were dropped against him.However, when a revision was filed against that order in the High Court by the complainant, the order of the Magistrate was set aside holding that the question of conviction or acquittal will arise only after recording evidence of the parties and there was no question of discharging the accused at an intermediate stage. In the background of the aforesaid facts when appeal was filed in the Supreme Court, it held that after the accused enters appearance before the Magistrate, it is open to him to plead before the Magistrate that the process against him ought not to have been issued.The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could betried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused. From the above rule of law laid down by the Supreme Court, it is clear that even the Magistrate has the power tohold, on an application of the accused when he enters appearance after being summoned, that no case is made out against him and the proceedings against him should be dropped. Similarly in the present case it can very well be pleaded even before the Court of the Additional Chief Metropolitan Magistrate that the complaint filed against the petitioner is barred by time.On behalf of the complainant it has been contended that the offence imputed to the petitioners was actually discovered on 6.11.1992 and if the knowledge of the offence was derived that day, the complaint was in time. In this respect the further case of the petitioner is that the Registrar of Companies in the facts and circumstances of the present case is not an aggrieved person.Even this point can be taken up before the Magistrate and if the Magistrate is satisfied that the complaint is either time barred or that the complainant is not an aggrieved person against them, the Magistrate can very well recall the order of summoning of the petitioners. It may also be noted in this case that even a copy of the complaint on the basis of which the petitioners are being prosecuted has not been filed on record. Therefore, otherwise also it is not possible to come to a definite conclusion at this stage that the complaint against the petitioners is barred by time or that the complainant is not an aggrieved person. Hower, if the petitioners think that they are entitled to the recall of the order of summoning by the Magistrate for any reason whatsoever, they are at liberty to apply before the Magistrate and if the Magistrate agrees with their view, he can certainly recall that order. It is not a fit case for grant of a stay. Petition is therefore, dismissed.
(3) Before parting with this matter I may note that it has been observed in many cases that a practice has developed by now that as soon as there is a summoning order, the aggrieved party approaches the HighCourt u/Section 482 of the Code for quashing. In such matters, the appropriate course is first to approach the concerned Magistrate for recall of the order.In that situation the High Court will have the advantage of the considered opinion of the Magistrate, and it can always exercise its inherent powers in fit feels that the Magistrate has gravely erred. But still it may be possible to visualize cases where already there has been a long delay and the proceedings remained pending before the Magistrate for quite sometime. In such cases it will be appropriate for this Court to interfere u/Section 482 of the Code in the interest of justice or to prevent an abuse of the process of theCourt. But to ask this Court to interfere at the very threshold of the prosecution does not appear appropriate because it practically amounts to shifting of the prosecution case from the competent Court of a Magistrate to this Court and especially when the Magistrate himself is empowered to recall the order of summoning.