Research › Search › Judgment

Allahabad High Court · body

2002 DIGILAW 410 (ALL)

NAZEER AHMAD v. STATE OF U. P.

2002-03-18

R.K.DASH

body2002
R. K. DASH, J. ( 1 ) HEARD Sri Govind Krishna, learned counsel appearing for the petitioner and Shri Surendra Singh, learned Additional Government Advocate representing the State. ( 2 ) THERE are in total four accused persons namely, Insaf Ali, Jainullah, Lallah Shah and Abid Hasan, facing trial under Section 135 of the Customs and Excise Act. A mini truck bearing registration No. D. B. L. 6353 carrying goods of foreign origin was detained and the truck along with the goods were seized. The Driver and other persons present in the vehicle gave their statements to the Customs Officer, which have been brought in evidence and marked as exhibits through P. W. 1. It would appear from the order of the learned trial Court (Annexure 2) that petitioner was the owner of the aforesaid truck and the seized goods were loaded in the said truck from his house. ( 3 ) ON a petition being moved by the prosecution under Section 319, Cr. P. C. , learned Court below by order dated 23-4-1999 arraigned the petitioner as an accused and issued process against him to face the trial. Pursuant to summons, the petitioner entered appearance and filed a petition to recall the said order. Upon hearing, the learned trial Court accepted the petitioners prayer and by order dated 16-9-1999 recalled the aforesaid order. Aggrieved thereby the prosecution moved in revision and the learned VIII Additional Sessions Judge quashed the order dated 16-9-1999 and put his seal of approval to the order whereby the petitioner was summoned as accused and it is that order of the revisional Court which is under challenge in the present proceeding. ( 4 ) AS an interim measure while staying further proceeding of the Court below, a report was called for from the Trial Judge (Special Chief Judicial Magistrate, Meerut) explaining as to how and under which provision of law he could review/recall his own order passed under Section 319, Cr. P. C. In response to the notice he submitted his report stating inter alia that on the basis of the law laid down by the Supreme Court in K. M. Mathew, (1992)1 SCC 217 , and also of this Court in Kailash Chaudhari, 1993 All Cri C 664 : (1994 All LJ 174) he reviewed his own order. P. C. In response to the notice he submitted his report stating inter alia that on the basis of the law laid down by the Supreme Court in K. M. Mathew, (1992)1 SCC 217 , and also of this Court in Kailash Chaudhari, 1993 All Cri C 664 : (1994 All LJ 174) he reviewed his own order. ( 5 ) LEARNED counsel appearing for the petitioner has strenuously urged that the order dated 16-9-1999 passed by the trial Court being based on appreciation of materials on record supported by judicial pronouncements, the same ought not to have interfered with by the revisional Court. He has further urged that merely because the petitioner was the owner of the truck in question that alone cannot be a ground to fasten him with criminal liability without there being any material to show his involvement either directly or indirectly in carrying the foreign goods. ( 6 ) PER contra, learned Additional Government Advocate would urge that in view of the statements of co-accused persons to the Custom Officer implicating the petitioner in the alleged incident, learned trial Court was perfectly justified in summoning the petitioner as a co-accused that the said order being based on reasons, the Court below lacked jurisdiction to recall/review the same. ( 7 ) IT stands admitted that after commencement of the trial the prosecution examined one officer of the custom department as P. W. 1. As would appear from his statement, copy whereof at Annexure 7, co-accused persons made their statements to him and since he is not a police officer and their being no objection by the defence, those statements were marked as exhibits. The order dated 23-4-1999 would show that the co-accused persons in their statements stated that the petitioner was the owner of the truck in question and the seized foreign goods were loaded in his truck from his house. ( 8 ) TAKING all those into account the learned trial Court found that there is prima facie evidence against the petitioner and accordingly in exercise of power conferred by Section 319, Cr. P. C. issued summons to him to face the trial along with other co-accused persons. The order arraying the petitioner as accused being final in nature, the learned Court below had no jurisdiction to recall/review the same. P. C. issued summons to him to face the trial along with other co-accused persons. The order arraying the petitioner as accused being final in nature, the learned Court below had no jurisdiction to recall/review the same. Unfortunately, influenced by the order of the Commissioner releasing the truck in favour of the petitioner the learned Magistrate recalled the said order and for doing so he relied upon the decision of the Supreme Court in K. M. Mathew, (supra) and of this Court in Kailash Chaudhari (supra ). The facts of K. K. Mathew are quite distinguishable. In that case arising out of complaint, cognizance was taken under Section 504/34, I. P. C. against K. K. Mathew, Chief Editor of Malyalam Manorama and others. A move was made by K. K. Mathew before the learned Magistrate to drop the proceeding against him. His prayer was accepted and proceeding was accordingly dropped so far he was concerned. The complainant challenged the order of the Magistrate in the High Court in revision. Upon hearing, the Court allowed the revision and set aside the order of the learned Magistrate. K. K. Mathew then moved the Supreme Court and a Bench of Honble Supreme Court set aside the order of the High Court and upheld the order of the Magistrate whereby he had dropped the proceeding against K. K. Mathew. ( 9 ) THE decision in K. K. Mathew has been referred to a larger bench in another case, however, the same being law of the land has the binding effect so long as it is not overruled. What has been decided in the said case is that if there is no allegation in the complaint involving the accused in the commission of the crime, the Court which had issued summon after taking cognizance of the offence can review his own order and drop the proceeding. The present case stands on a different footing. Learned Court below upon appreciation of the materials on record, arrayed the petitioner as accused in exercise of power under Section 319, Cr. P. C. So once it was satisfied that there is prima facie evidence regarding involvement of the petitioner in the alleged incident and accordingly summoned him to face the trial it could not have reviewed/recalled the said order. P. C. So once it was satisfied that there is prima facie evidence regarding involvement of the petitioner in the alleged incident and accordingly summoned him to face the trial it could not have reviewed/recalled the said order. In my considered opinion, therefore, the judgment of the Apex Court rendered in K. M. Mathew (supra) was not appreciated by the lower Court in proper perspective. Similarly the decision of this Court in Kailash Chaudhari, (1994 All LJ 174) which was rendered in a different fact situation has no application. In the said case the Court observed that order taking cognizance under Section 190 and issuing process under Section 204, Cr. P. C. can be varied, rescinded or recalled by the Magistrate himself. These decisions upon which the learned Court below placed reliance were misread and misapplied. The petitioner, if at all felt aggrieved by the order passed under Section 319, Cr. P. C. proper course for him was to challenge the same in the higher forum as provided under law. Instead he moved the trial Court to recall the said order, which power the Court did not possess. ( 10 ) HAVING given my anxious consideration to the facts and circumstances of the case and submission made, I am of the view that the order dated 23-4-1999 being based on reasons, did not call for any interference by the Court below or by this Court. In that view of the matter, the order of the learned Magistrate recalling/reviewing the aforesaid order has no sanction under law and, therefore, the revisional Court was justified in interfering with the said order in exercise of revisional jurisdiction. ( 11 ) IN the result criminal miscellaneous writ petition fails and the same is dismissed. Interim order stands vacated. Petition dismissed .