Cr.P.C.202

In the case of Adalat Prasad v. Rooplal Jindal 2004 (4) Mah LJ 274 : (2004 Cri LJ 4874) the Apex Court has held that "a condition precedent for issuing process under Section 204 of the Code of Criminal Procedure is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 of the Code of Criminal Procedure that there is sufficient ground for proceeding with the complaint hence process is issued under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provisions of the Code. Therefore, the question of the accused on receipt of summons approaching the Court and making an application for dismissal of the complaint under Section 203 of the Code for a reconsideration of the material available on record and recalling of order is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage."

Apex Court in K.M. Mathew v. State of Kerala, (1992) 1 SCC 217 : (1992 Cri LJ 3779) has observed in paras 7, 8, 9 and 10 as under :

The High Court seems to be too technical in this regard, if one reads carefully the provisions relating to trial of summons cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.

It is open to the accused 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 be tried. 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.