Legal provisions regarding Commencement of Proceedings before Magistrate under section 204 of the Code of Criminal Procedure, 1973.
(1) If the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceedings, and the case appears to be:—
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ADVERTISEMENTS:
(a) A summons-case, he shall issue his summons for the attendance of the accused; or
(b) A warrant-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 no jurisdiction himself) some other Magistrate having jurisdiction.
Even in a summons case he may issue a warrant after recording his special reasons for doing so under Section 87. As per Section 204(5) of the Code, nothing in Section 204 shall be deemed to affect the provisions of Section 87.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
ADVERTISEMENTS:
(3) 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.
(4) 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.
Section 204 of the Code applies not merely where the cognizance is taken on a complaint, but also when cognizance is taken on a police report, submitted to the Magistrate either under Section 172 or after an inquiry under Section 202 of the Code made by the police.
The petition of complaint, the sworn statement of the complainant and the report of the inquiring officer are sufficient materials for the purpose of issuing process under Section 204 of the Code.
ADVERTISEMENTS:
When the Magistrate does not dismiss the complaint under Section 203 and is of opinion that there is sufficient ground for proceeding, he has to commence the proceeding against the accused by issuing process under Section 204 of the Code.
For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied about is whether there is ‘sufficient ground for proceeding’ and not whether there is ‘sufficient ground for conviction’. He is not to enter into the merits and demerits of the case.
He need not give his reasons for issuing process. He need not enter into the merits and demerits of the case. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The Magistrate has been given an undoubted discretion in the matter of issue of process and the discretion has to be judicially exercised by him.