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Report No. 41

Chapter XVII

Commencement of Proceedings Before Magistrates

17.1. Scheme of Chapter.-

This Chapter consists of two sections, one dealing with the issue of process, and the other with the power to dispense with the personal attendance of the accused at the commencement of proceedings before the Magistrate.

17.2. Section 204(1.-issue of summons or warrant.-

Section 204(1) refers to the Second Schedule and to the division made in the fourth column of that Schedule between cases where a summons is to issue in the first instance and cases where a warrant is to issue. While in the former case the Magistrate has to issue a summons (unless he proposes to issue a warrant under section 90), in the latter case, "he may issue a warrant, or, if he thinks fit, a summons for causing the accused to be brought or to appear" before the Magistrate.

17.3. Omission of 4th column in 2nd Schedule recommended.-

An analysis of the fourth column of the Second Schedule shows that a summons is to issue in the first instance for every summons case with the exception of the following thirteen offences under the Indian Penal Code, namely.-

(i) Offence under sections 153, 357, 374, 417, 434, 448, 482, 508 or 509, punishable with one year's imprisonment,

(ii) offence under sections 138 or 225B, punishable with 6 months' imprisonment,

(iii) offence under section 292, punishable with 3 months' imprisonment, and

(iv) offence under section 510, punishable with imprisonment for not more than 24 hours.

On the other hand, a warrant is to issue in the first instance in every warrant case except in regard to offences under the following sections of the Indian Penal Code.-

(i) section 326 (imprisonment for life),

(ii) section 376 (10 years' imprisonment),

(iii) section 325 (7 years' imprisonment),

(iv) section 335 (4 years' imprisonment),

(v) sections 161, 162, 164, 165, 167, 324, 344, 347, 348, 484, 485 and 487 (3 years' imprisonment), and

(vi) sections 169, 177, 189, 217, 223, 225A, 229, 270, 295, 338, 342, 345, 346 and 355 (2 years' imprisonment)

These few exceptions do not appear to be based on any logical principle or practical consideration. The law may well be simplified by omitting the fourth column from the Second Schedule and by relating su.-section (1) of section 204 about issue of process to summons cases and warrant cases.

17.4. Simplification of su.-section (1).-

A suggestion has been received that if the case is one relating to an offence punishable with imprisonment of less than three years, a summons should issue in the first instance. There are not many offence under the Indian Penal Code which are punishable with imprisonment which may extend to two years, and even in these cases, the Magistrate has full discretion under section 204 to issue a summons in the first instance. This provision is sufficient for all practical purposes, and we recommend that su.-section (1) of section 204 be simplified as follows.-

"(1). If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a summon.-case, he shall issue his summons for the attendance of the accused. If the case appears to be a warran.-case, he may issue a warrant, or if he thinks fit, 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 himself) some other Magistrate having jurisdiction."

17.5. Section 205.-

Section 205 empowers a Magistrate to dispense with the personal attendance of the accused whenever he issues a summons for the appearance of the accused. It may be noticed that the power is not confined to summon.-cases, but extends also to warran.-cases where the Magistrate issues a summons in the first instance. The Courts have taken the view that the power to dispense with the personal attendance of the accused under this section is limited to the first issue of process and that it cannot be exercised at any later stage. If the Magistrate finds it necessary at a later stage to dispense with the personal attendance of the accused, he will have to act under and in accordance with the provisions of section 540A. The two complementary provisions appear to be adequate and do not require any change.

Code of Criminal Procedure, 1898 Back

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