Allahabad High Court: Dr Kaushal Jayendra Thaker, J., while addressing a criminal revision observed that, Trial Court Judge should not insist on the presence of complainant at the stage of service of summons/warrants and/as their presence would not be required for any adjudicatory purpose.


Complainant a practising advocate complained to the Chief Judicial Magistrate, Moradabad about the commission of offences under Sections 379, 504 and 505 of the Penal Code, 1860.

Section 379. Punishment for theft.

Section 504. Intentional insult with intent to provoke breach of the peace.

Section 505. Statements conducing to public mischief

Summons were issued to the accused, but instead of appearing before the Court, he preferred a revision that was rejected.

Judge predecessor to the one who passed the order on 13-08-2018 had even sent notices to the higher authorities to procure the presence of the accused which went in vain.

The complainant fell sick and the Judge below dismissed the complaint under Section 204(4) of CrPC and hence the said Order is under challenge.

Section 204 (4) of CrPC:

When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.


Bench noted that,

it is very strange that the Judge whose order is under challenge did not pass orders for procuring the presence of the accused.

Further, it was observed that the order dated 13-8-2018 which is under challenge, goes to show that despite the fact that the accused lost before the appellate authority was successful in evading appearance and the complainant sought to be lodged by an advocate was dismissed.

“…instead of procuring presence of the accused, the Magistrate dismissed the complaint under Section 204 (4) of CrPC. Once the summons was already sent, there was no necessity of paying further court fees.”

Declaring the order to be perverse, Court stated that the Magistrate instead of dismissing the complaint should have sought the presence of the accused as per the provisions of Section 87 of the CrPC.

87Issue of warrant in lieu ofor in addition tosummons:

 A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—

(a)if, either before the issue of such summonsor after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summonsor

(b)if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

Hence, the Order in challenge is required to be set aside and quashed.

Order passed by the Judge below dimissing the case is absolutely cryptic.

Bench also added to its analysis that, the stage was for the appearance of the accused who was evading summons and was aware that the summoning order was passed. The accused is shield by the Superintendent of Police, Moradabad.

At stage of seeking the presence of accused, the presence of the complainant was not at all necessary.

Court directed that the presence of the accused be procured first and thereafter the presence of the complainant be insisted upon.

In the present matter, there is a clear misuse of the process of law by the accused who even after coming to know that summons were issued against them and there revision was dismissed, did not appear before the Court below and strange enough the Magistrate dismissed the matter of the complainant at the stage of issuance of the bailable warrant as accused had not appeared before it pursuant to the summons already issued.

Concluding its decision, bench stated that the Trial Court Judge should not insist on the presence of complainant at the stage of service of summons/warrants and/as their presence would not be required for any adjudicatory purpose.

Once the process fees has been affixed, it is the duty of the police authority through the Court to procure the presence of the accused unless orders otherwise are passed.

Compliance of the Order to be filed on or before 25-10-2020. [Rajbahadur Singh v. State of U.P., 2020 SCC OnLine All 1042, decided on 22-09-2020]

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