IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34220 of 2009 MOHAMMAD SHAHABUDDIN @ BABLU, SON OF MOHAMMAD SAMSHUDDIN, RESIDENT OF VILLAGE BITHUNA, P.S. UBHAW, DISTRICT BALIA (U.P.) ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. SAKEEL AHMAD, SON OF LATE MOHAMMAD TEJAN, RESIDENT OF MOHALLA NAYA KILLA, P.S. SIWAN (NAGAR), DISTRICT SIWAN. ----- OPPOSITE PARTIES ----------- 2 7.11.2009 In this case I am not calling upon the opposite party no. 2 as the question involved does not concern the opposite party but the matter is between the petitioner and the Court. The brief facts are that a complaint case was filed for lodging of a First Information Report. On investigation final form was submitted exonerating the petitioner. Notice was issued to the informant to appear and thereafter the final form was accepted. The complainant filed complaint-cum-protest petition and cognizance has been taken by the Court on the basis of the complaint-cum-protest petition. While taking cognizance, the Court below has directed to issue warrant of arrest against all the accused persons as cognizance was taken under Sections 120(B) and 304(B) of the Indian Penal Code. Section 204 of the Code of Criminal Procedure reads as follows: - 2 - 204. Issue of process.-(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) 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. It would be apparent that the Court has the power to either issue summons or to issue warrant in an offence not being a summons case. Summons and warrants have been defined 2(w) and 2(x) of the Code. Summons case means a case relating to an offence and not being a warrant case, whereas a warrant case is a case relating to an offence punishable with death, imprisonment for life or for a term exceeding two years. From a bare reading of Section 204, together with the object and reasons, it is clear that a summons has to be issued in all summons cases and warrant in all warrant-cases, except where the Magistrate orders to issue summons as provided under Section 204(1)(b) of the Code. It has been held in the case of Ram Harsh Das Vs. State of Bihar reported in 1998(1) PLJR 502. “Issuance of warrant in a warrant-case is a rule and issuance of summons is - 3 - exception which is to be made by the Magistrate if there is reason or ground to do so.” Learned counsel for the petitioner submits that once the final form/charge sheet has been submitted and accepted by the Court below, the Court has power to issue summons. Therefore, after considering the provisions of Section 204 of the Code of Criminal Procedure and that the facts, I find no illegality in the order, and as such I am not inclined to interfere in the order. This application is dismissed. Sanjay ( Sheema Ali Khan, J. )