P.S. Safeer, J.
(1) This petition has come up in consequence of an order passed by Shri S C. Chaturvedi. Addl. Sessions Judge, Delhi on the 11th of December, 1972 in exercise of of the jurisdiction provided by section 438 of the Criminal Procedure Code, hereafter called 'the Code'.
(2) The learned Addl. Sessions Judge was dealing with the order passed by Shri Ram Chandra, Judicial Magistrate It class on the 30th of August, 1972 under section 204 of the Code by which he directed process to be issued against 5 out of 8 persons who had been 'imp leaded as the accused in a complaint filed by the present petitioner.
(3) It was contended before the learned Addl. Sessions Judge that the process should have been issued by the Magistrate against all the accused. It was found that the order declining to summon Hakim uddin and Abdul Sattar, did not give any reasons for not proceeding against them. The learned Addl. Sessions Judge reproduced the order passed by the Magistrate in paragraph 2 of the order passed , .him under section 438 of the Code. On a perusal of that order I am of the view that while passing the same, the Magistrate did not attend to the requirements of section 204 of the Code. The order passed Ob the 30th of August. 1972 by him may be quoted here :'- '30th August, 1972 Complainant is present with counsel. Arguments of the complainants counsel heard. On the basis of the evidence (sic) of furnished by the complainant, there are good grounds to proceed against Ayub, Bundi. Nasirudin, Rimzani and Khem Chand U/S 147/323/1491 P. C They be summoned for 18th October. 1972.' .While passing the afore quoted order the Magistrate exercised the authority provided by section 203 and section 204 of the Code. He virtually dismissed the complaint against those of the accused who were not summoned. At the same time he observed that on the basis of the evidence furnished by the complainant there were good grounds to proceed against five persons named in his order. Section 203 and 204, are :- ' 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 resalt 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 so doing.' S 204 (1) If in the opinion of a Magistrate taking cognizance of an offeree there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the second schedule, a summons should issue in the first instance he shall, issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a war rant should issue .in the first instance he may issue a warrant, or, if he thinks, a summons, for causing the accused to be brought or'..to appear at a certain time before such Magistrate or (if he-has not jurisdiction him self) some other Magistrate having jurisdiction. (1A) No summons or warrants shall be issued against. the accused under sub-section (1) untill a list of the prosecution witnesses has been filed, (IB) 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 arc payable, no process shall be issued until the fees are paid, and, if such fees are not paid whithin a reasonable time, the Magistrate may dismiss the complaint.'
(4) Being concerned with section 203 of the Code. the Supreme Court in Vadital Panchal v. Dattaraya Dulaji Ghadigaonkar, in paragraph 10 of the judgment, observed:-
'IT is manifestly clear from the provisions of S. 203 that the judgment which the Magistrate has to form must be passed on the statements of the complainant and his witnesses and the result of the investigation or inquiry.'
Similar observitions were made by the Supreme Court in Pramatho NathTolukdar (lnCr. A. No. 675 of 1961) and 2 Surendra Mohon Basu (In Cr. A. 77 of 1961) Appellants v. Saroj Ranjan Sarkar (in both appeals). Respondent 2, in paragraph 48, the Supreme Court observed :-
'HEmust apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding.'
(5) The afore quoted observation applies with equal force to sections 203 and , 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 apparrent 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 fail-, to appear inspire 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 non-compliance with the summons served. The summons however, will find its sanction in the order passed under section 204 of the Code. Such an order, howsoever wide the discretion may be, must be speaking order miking it mainfest 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 409 of the Code. The order must, thereforee, state the sufficient grounds which may have led to ihe formation of the opinion that a case had been made out for proceeding against the accused persons.
(6) Exercising the jurisdiction provided by Article 227 of the Constitution of India and section 439 of the Code, the Magistrate is directed _ to take into consideration all the material available before him and to pass a speaking order which may be giving his reasons and which may disclose that it has been passed in competent exercise of jurisdiction provided by sections 203 and 204 of the Code. With these observations. the petitioner is directed to appear before the Magistrate on the 18th of April, 1973.
(7) Declining the recommendation made by the learned Addl. Sessions Judge, the petition is disposed of.