- (1.) In the present petition, applicant, who is an. informant has filed a complaint in Case No. 2397 of 2012 under Sections 34, 379, 411, 417, 418, 420, 467, 468, 471 and 477 I.P.C., P.S. Sihani Gate, District Ghaziabad, process has been issued against the respondent Nos. 2 and 3, who were named as an accused in the complaint. The order of summoning was questioned by respondent Nos. 2 and 3 in this Court in which initially a stay order was passed, subsequently, the same was dismissed on 31.5.2012. Having failed to obtain any relief from this Court, an application was filed under Section 245(2) Cr.P.C. seeking discharge from the trial. The informant filed his objection to the said application. The grievance of the applicant is that the application has been entertained without accused surrendering before the Court in this behalf. The applicant has come up before this Court against the order passed by this Court on 13.11.2012 whereby he has entertained the application under Section 245(2) Cr.P.C.
(2.) I have heard the learned counsel for the parties. The issue involved in this case is as to whether the Court can entertain an application of an accused, who has not surrendered before the Court after the process was issued. In order to appreciate this controversy under Section 204 of the Cr.P.C. is quoted below: 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 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 issued 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 or for 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 provisions of Section 87.
(3.) A close scrutiny of the provision envisages that once the Magistrate has taken cognizance of the offence he is required to issue summons or warrants for causing the accused to be brought before the Court. In case where the process is issued on the basis of complaint copy of the same is required to be supplied to the accused. The presence of the accused before the trial Court after the issuance of the summons is mandatory. In respect of cases initiated on the police report there is one more condition required to be complied with under Section 207 Cr.P.C. The Magistrate is required, without any delay to furnish a copy of the police report alongwith all the documents to the accused free of cost which has been collected during the course of investigation. It is on the supply of the documents that the trial can proceed. Unless the accused appear before the Court the trial cannot be initiated. What is important here is that trial without the presence of the accused cannot be permitted. It is essential that accused must remain present before the Court, before the trial can be initiated.;