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Karamvir and ors. Vs. Lalita Prasad - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 79 of 1972
Judge
Reported in9(1973)DLT368
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 204(1B)
AppellantKaramvir and ors.
RespondentLalita Prasad
Advocates: P.P. Malhotra, Adv
Cases ReferredA. C. Aggarwal v. Raw Kali That
Excerpt:
.....that- the provisions of clause (i-b) are) merely directory in the sense that failure to attach a copy of the complaint with the summoneses doe? ' his lordship further observed that- thecourt's decision to issue a process cannot be deemed to have been necessarily and automatically invalidated by the omission of the ministerial officers to attach a copy of the complaint with the summonses, and the supply of such a copy to the accused on or before his appearance, though the copy was not attached with the summones, may cure the defect :at worst, adjournment would, generally speaking, place the accused, for all practical purposes, in the same position as if such a copy had originally accompanied the summones; if according to the madhya pradesh high court in air1958mp28 the courts failure to..........with the summons as required under section 204(1b) cr p. c. the petitioners appeared before the learned magistrate in response to the summons on 5th october, 1971. an objection was raised on behalf of the petitioners that the mandatory provisions of section 204(1b) cr. p. c. had not been complied with by the complainant inasmuch as copies of the. complaint were not sent along with the summons and that, thereforee, the complaint should be dismissed. the complainant thereupon filed additional copies of the complaint in court , on the same day, but the learned magistrate dismisssd the complaint on the ground that such copies of the complaint were not filed along with the complaint.(2) against this order of the learned magistrate, the respondent filed a revision petition in the court of.....
Judgment:

M.R.A. Ansari, J.

(1) The respondent Lalita Prasad filid a compaint against the petitioners herein in the Court of the Judicial Magistrate 1st Class, Delhi, under sections 323 and 504 J. P. C. along with the complaint, he filed only one copy of the complaint. Summons were issued to the petitioners herein without, however, sending a copy of the complaint Along with the summons as required under section 204(1B) Cr P. C. The petitioners appeared before the learned Magistrate in response to the summons on 5th October, 1971. An objection was raised on behalf of the petitioners that the mandatory provisions of section 204(1B) Cr. P. C. had not been complied with by the complainant inasmuch as copies of the. complaint were not sent along with the summons and that, thereforee, the complaint should be dismissed. The complainant thereupon filed additional copies of the complaint in Court , on the same day, but the learned Magistrate dismisssd the complaint on the ground that such copies of the complaint were not filed along with the complaint.

(2) Against this order of the learned Magistrate, the respondent filed a revision petition in the Court of Sessions and contended that the provisions of section 204(1B) Cr. P. C. were not mandatory but merely directory in nature and that. the failure on the part of the complainant to file sufficient number of copies of the complaint.along with the complaint could not justify the dismissal of the complaint, especially as he was ready to the additional copies of the complaint when the petitioner had appeared in the Court for the first time The learned Additional Sessions Judge accepted this contention and set aside the order of the learned Magistrate and directed him to proceed with the trial of the case in accordance with law after supplying copies.of the complaint to all the accused. 'Against this order of the learned Additional Sessions Judge, the petitioner have filed the present revision petition.

(3) The learned counsel for the petitioners relies upon the language of section 204(IB) Cr. P. C. in support of his contention that this provision was mandatory and non-compliance with this provision warrants the dismissal of the complaint. In support of this contention, the learned counsel has referred to two decisions of the Madbya Pradesh High Court and also a decision of the Supreme Court. In Chaturbhuj v. Nakarkhan, a single Bench of that Court held as follows :- 'Having regard to the wordings of Section 204, Clauses (1-A) and (1-B), it seems to me that tiling of the list of prosecution witnesses is essential unless the complainant is the.only witness in the case. It further appears that along with the summons or warrant issued under sub-secticin(1), copy of the complaint ought to be sent to the accused. It appears from the first proceeding dated 14th.March, 1971, that the learned Magistrate did not apply his mind to.the change in the new procedure brought about by the introduction of sun sections (1-A) and (1 B) in Section 204 of the Code of Criminal Procedure. He seems to have proceeded according to the old unameded provisions. This was not correct'' But finally the learned Single .juudge pasted the following .order : - 'The Magistrate shall comply with-provisions of Section 204 (1-A)and (1-B) after duly applying his.mind lothe:same.andthen shall proceed with the trial of the case in accordance with law.' It has to be noted that although the learned Judge expressed the view that the provisions of section 204(1-B) were mandatory he did not quash the proceedings pending in the trial Court on that ground, but only directed the Magistrate to proceed with the trial of the case after complying with the provisions of section 204(1 B) Criminal Procedure Code. The other decision of the Madhya Pradesh High Court relied upon by the learned counsel for the petitioner is the case of Tolaram Mulchund and another v Shop Inspector. The only portion of the judgment in this case which is sought to berelied upon by the learned counsel is the one in which the following observations were made :- 'It is now settled law that the ordinary meaning has to be adopted unless it leada to absurdity or it defeats the object of the piovision.' Those observations are hardly of any assistance in deciding the point at issue in this case. The decision of the Supreme Court relied upan by the learned counsel is the ease of A. C. Aggarwal v. Raw Kali That was a case under the Suppression of lmmoral Traffic in Women and Girls Act, 1956 and in the. context of the said Act, the Supreme Court was interpreting the word 'may' appearing in section 190(l)(b) Criminal Procedure Code and held that the word 'may' in that section in the context meant 'must', This decision is again hardly of any assistanca in resolving the controversy in the present case.

(4) The word 'shall' appears in various provisions of the Code of Criminal Procedure. But sometimes,, this is construed as marely directory in character and not mandatory. It depends upon the nature of the provision. The Punjab High Court. in Ram Narain v.Bishamber Naih. has construed the word 'shall' appearing in section 204(1.B) as being merely directory in nature and not mandatory. 1. D. Dua, J. (as his Loidship then was) stated the two rules which may be applied in determining whether a particular provision was directory or mandatory in the loHowing terms :- 'According to our system of law, provisions in criminal statut es meant for the protection of the accused persons. are to be considered dered to be imperative or mandatory, because the laws of this country protect the innocent to the greatest degree ; like wise when statutes provide for the doing of acts or for the exercise of power or authority, they are generally assumed to be mandatory or pre-emptory irrespective of the phraseology used, though manifest intention of the legislature may replace this assumption. A direction liko the above, if merely intended to guide the officer, in securing order and dispatch in the conduct of the official business or proceedings, on which rights of the parties interested cannot be injuriously affected, may be considered to be directory, but not where the mandate in a statute is intended for the protection of the citizen, by a disregard of which, his rights would be injuriously affected.' Applying the above two rules to section 204(I-B) Criminal Procedure Code his Lordship held that-

'The provisions of Clause (I-B) are) merely directory in the sense that failure to attach a copy of the complaint with the summoneses doe? not by itself campletely invalidate or nullify the issue of the process.'

His Lordship further observed that-

'THECourt's decision to issue a process cannot be deemed to have been necessarily and automatically invalidated by the omission of the ministerial officers to attach a copy of the complaint with the summonses, and the supply of such a copy to the accused on or before his appearance, though the copy was not attached with the summones, may cure the defect : at worst, adjournment would, generally speaking, place the accused, for all practical purposes, in the same position as if such a copy had originally accompanied the summones; section 57, Criminal Procedure Code, would thus, in my opinion, cure the defect.'

(5) I am in respectful agreement with the above observations of 1. D. Dua. J. (as his Lordship then was). Further, it has to be noted that under section 204(IB), a duty is cast on the Court which issues the summons to attach a copy of the comolaint along with the summins. If according to the Madhya Pradesh High Court in : AIR1958MP28 the Courts failure to attach copies of the complaint with the summons by the ministerial staff of the Court even in cases where the complainant had himself filed suffi;ieat number of copies along with the complaint would be a contravention of section 204(IB),surfly the complaint cannot be dismissed for the laches committed by the ministerial staff of the Court. It is no doubt true that in the present case the respondent had filed only one copy along with the complaint. But it was the duty of the court before issuing the summons to the petitioners to require the respondent to file suificient number of copies of the complaint. It would be open tothe Court not to issue the summons to the petitioners unless and until the respondent had filed the copies as directed by the Court. The respondent was, however, ready and willing to file additional copies of the complaint when the petitioners appeaed in Court at the very first time in response to the summons. in spile of such copies being available to be supplied immediately to the petitioners, the Iearned Magistrate dismissed the complaint. The order of the learned Magistrate, in my view, was wholly illegal and the learned Additional Sessions Judge was right is setting aside his order and directing him to proceed with the trial after supplying the copies of the complaint to the petitioners. I see no reason to interfere with the order of the learned Additional Sessions Judge. The revision petion is dismissed. The parties are directed to appear before the trial Court on 27th April 1973.


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