IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. M. No.22350-M of 2009 Date of Decision:10.2.2011 Sukhwinder Kaur .... Petitioner Versus State of Punjab and others .... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Vipin Mahajan, Advocate for the petitioner. Ms. Gurveen H. Singh, Addl. A.G. Punjab. Mr. Veneet Sharma, Advocate for respondents No.2 to 4. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J.(Oral) The present petition has been filed under Section 482 Cr.P.C. for quashing of order dated 22.8.2008 passed by learned Addl. Sessions Judge, Gurdaspur, vide which it has been directed that accused persons be heard before summoning order is passed in Criminal Complaint No.385/2007 filed by the petitioner under Section 376/34 IPC against respondents No.2 to 4. The allegations as alleged in the complaint are that on 21.10.2007 at around 4.30 P.M. when the complainant was alone in the house all the accused persons in drunkard condition entered the petitioner's house and committed rape upon on her. However, the respondents-accused herein filed a revision petition before the learned Addl. Sessions Judge, Gurdaspur. The learned Additional Sessions Judge, Gurdaspur, disposed of the Revision Petition by giving a direction to the learned trial Court to hear the accused party before summoning order is passed and in case they are summoned, they must be given reasonable time to furnish the bail bonds. The learned Judicial Magistrate, accordingly, had no choice but to pass the following order: “Present: Complainant with counsel. Consideration on summoning of accused Crl. M. No.22350-M of 2009 -2- is not made. As per the orders of learned A.S.J., dated 22.8.2008, this Court has been directed to hear the accused persons before summoning them. Accordingly, let notice to accused/respondent be issued for 13.3.2009. Sd/- Tejinder Singh JMIC 27.1.2009” Section 204 of the Code of Criminal Procedure reads as under: “(1) If the opinion of a Magistrate taking cognizance of an offence there is sufficient grounds proceeding, and the case appears to be- (a)a summon-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. (2) No summons or warrant shall be issue against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (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. (5) Nothing in this section shall be deemed to affect the provision of Section 87.” It is evident from the perusal of the said Section that there is no provision to hear the respondents-accused before summoning order is issued by the Magistrate. In fact respondents herein have no locus standi to Crl. M. No.22350-M of 2009 -3- challenge the complaint till summons or process is issued to them. No cause of action has yet arisen to enable the respondents to challenge the said complaint. It is only after the trial court issues summons or process that the respondents-accused can challenge the same in accordance with law. The said legal position is not disputed. The order dated 22.8.2008 passed by learned Addl. Sessions Judge, Gurdaspur, is therefore patently illegal. The revision petition filed by the respondents-accused, itself was not maintainable in the absence of cause of action to file the same at that stage. Accordingly, order dated 22.8.2008 passed by learned Addl. Sessions Judge, Gurdaspur, is set aside. Since, the order dated 22.8.2008 passed by learned Addl. Sessions Judge, Gurdaspur, is quashed being an illegal order, the order dated 27.1.2009 passed by the learned Judicial Magistrate Ist Class, in pursuance to the same is also set aside. The learned Judicial Magistrate Ist Class, shall now proceed to pass appropriate orders in accordance with law after taking into consideration the complaint and other evidence before it. However, nothing observed here-in-above shall be construed as an expression on the merits of the case. 10.2.2011 ( NIRMALJIT KAUR ) rajeev JUDGE