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2009 DIGILAW 2798 (ALL)

SHIV PRASAD SHAKYAWAR v. STATE OF U. P.

2009-08-10

SUBHASH CHANDRA AGARWAL

body2009
JUDGMENT Hon’ble Subhash Chandra Agarwal, J.—This revision is directed against the order dated 23.12.2006 passed by the Sessions Judge, Jalaun at Orai in criminal revision No. 289 of 2006, Krishna Kumar Kansal v. State of U.P. and another whereby order dated 1.8.2006 passed by the C.J.M. Jalaun at Orai rejecting the final report submitted by police and summoning the opposite party No. 2 Krishna Kumar Kansal for trial was quashed. 2. In brief the facts are that the complainant Shiv Prasad Shakyawar lodged an FIR against the opposite party No. 2 Krishna Kumar Kansal at P.S. Kotwali Jalaun under Sections 504, 506, IPC and 3 (1) (x) of SC/ST Act alleging therein that he was the Branch Manager of Allahabad Bank, Jalaun. On 21.10.2005 at 9.45 a.m. accused Krishna Kumar Kansal who was the Assistant General Manager, Jhansi Division Jhansi of Allahabad Bank inspected his office and publicly insulted him, abused him and accused him of corruption etc. After investigation police submitted final report. Notice of final report was served on the complainant, who filed protest petition before the C.J.M. Orai, which was registered as case No. 114 of 2006. The learned Magistrate, by order dated 1.8.2006 rejected the final report and summoned the accused Krishna Kumar Kansal for facing trial under Section 504, 506, IPC and 3(1) (x) of SC/ST Act. Feeling aggrieved with the order 1.8.2006 passed by the C.J.M. Orai, the opposite party No. 2 filed revision No. 289 of 2006 which was allowed by Sessions Judge, Jalaun at Orai vide judgment and order dated 23.12.2006 and order dated 1.8.2006 passed by the C.J.M. Jalaun at Orai was set aside. Hence this revision. 3. Heard Sri R.K. Gupta, learned counsel for the revisionist and learned AGA for the State. 4. None appeared for opposite party No. 2, though the case was taken up in the revised list. 5. Learned counsel for the revisionist submitted that no revision under Section 397, Cr.P.C. was maintainable before the Sessions Judge against the summoning order passed by learned Magistrate. 6. 4. None appeared for opposite party No. 2, though the case was taken up in the revised list. 5. Learned counsel for the revisionist submitted that no revision under Section 397, Cr.P.C. was maintainable before the Sessions Judge against the summoning order passed by learned Magistrate. 6. Reliance has been placed on a decision of the Hon’ble Apex Court in the matter of Subramanium Sethuraman v. State of Maharashtra and another, 2005 (51) ACC 684 wherein it was observed by the Apex Court that the only remedy available to an aggrieved accused against summoning order is to move the High Court in the proceedings under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge. 7. The submission is that a summoning order is an interlocutory order and the revision against the same is barred by Section 397(2), Cr.P.C. and learned Sessions Judge has committed illegality in entertaining the revision and setting aside the summoning order. 8. Per contra, learned AGA submitted that the order issuing process against the accused is not an interlocutory order and hence the revision against the summoning order would not be barred by Section 397 (2), Cr.P.C. 9. Although the Hon’ble Apex Court has held in Adalat Prasad v. Rooplal Jindal and others, 2004 (50) ACC 924 and Subramanium Sethuraman v. State of Maharashtra (supra) that the only remedy available to the accused against summoning order is to move the High Court in the proceeding under Section 482, Cr.P.C but the matter of maintainability of revision against summoning order was not specifically raised before the Hon’ble Apex Court in those cases. The matter in issue in both the aforesaid cases before the Hon’ble Apex Court was as to whether the Magistrate is empowered to recall its summoning order. In that context the Hon’ble Apex Court had held that the Magistrate is not empowered to recall the order issuing process against the accused and the only remedy available to the accused against summoning order is to invoke the jurisdiction of the High Court in the proceeding under Section 482, Cr.P.C. 10. In that context the Hon’ble Apex Court had held that the Magistrate is not empowered to recall the order issuing process against the accused and the only remedy available to the accused against summoning order is to invoke the jurisdiction of the High Court in the proceeding under Section 482, Cr.P.C. 10. In Rajendra Kumar Sita Ram Pandey and others v. Uttam and another, 1999 (38) ACC 438 the Hon’ble Apex Court has held that order issuing process for summoning the accused to face the trial is not an interlocutory order and therefore, the bar under sub-section (2) of Section 397 would not apply to such order. 11. In a recent decision in Dhariwal Tobacco Products Ltd. and others v. State of Maharashtra and another, 2009 (64) ACC 962, the Hon’ble Apex Court held that the summoning order is not an interlocutory order within the meaning of Section 397, Cr.P.C. 12. In view of above, it is established that a summoning order is not an interlocutory order and the revision against the same would not be barred by Section 397 (2), Cr.P.C. but would be maintainable and learned Sessions Judge did not commit any illegality in entertaining the revision against the summoning order dated 1.8.2006 passed by the C.J.M. Jalaun. 13. Learned counsel for the revisionist has not addressed the Court on merits of the case. From the facts available on records it is clear that the complainant was the Branch Manager of the Bank and at the relevant time, the accused was the Assistant General Manager. Being a superior officer, the accused had a right to inspect the working of the complainant and was authorised to comment on the irregularities and illegalities committed by the subordinate employees. He was simply discharging his official duties which was not to the liking of the complainant who took exception to certain remarks made by the accused. The witnesses cited by the complainant in the. FIR did not support the complainant during police investigation. Learned Sessions Judge has given cogent reasons for setting aside the summoning order. If on such trivial matters, the senior officers are summoned to face trial at the instance of subordinates, no discipline can ever be maintained in any office. 14. Learned Sessions Judge has properly exercised the jurisdiction vested to him. The impugned order does not suffer from any illegality or material irregularity. If on such trivial matters, the senior officers are summoned to face trial at the instance of subordinates, no discipline can ever be maintained in any office. 14. Learned Sessions Judge has properly exercised the jurisdiction vested to him. The impugned order does not suffer from any illegality or material irregularity. The instant revision has no force and is liable to be dismissed. 15. The criminal revision is dismissed. ———