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2010 DIGILAW 1542 (ALL)

Kamal-Ud-Din v. State of U. P. & Anr.

2010-05-11

SHRI KANT TRIPATHI

body2010
Hon'ble Shri Kant Tripathi,J.:- Heard the learned counsel for the applicant Kamal-ud-din @ Babu and the learned AGA and perused the impugned judgment. With the consent of the learned counsels for the parties, this petition is being disposed of finally at the stage of admission. It appears that the police submitted a final report in the case crime no. 9 of 2004 under sections 406, 409, 411 IPC, police station Risiya, district Bahraich. The Ist Additional Civil Judge (Junior Division)/J.M., Bahraich treated the final report as complaint and proceeded with the same and ultimately passed the summoning order dated 11.7.2006, against which the applicant preferred criminal revision no. 541 of 2006, which was dismissed on 20.2.2009 by the Special Judge (SC/ST Act), Bahraich on the ground that the revision was not maintainable in view of the principles of law laid down by the Apex Court in the cases of (1) Poonam Chand Jain vs. Fazaroo 2005 (1) LP 58(S.C.), (2) Subrahmaniyam Sethuraman vs. State of Maharashtra & others 2004 (6) SCC page 662, and (3) Adalat Prasad vs. Roop Lal Jindal & others 2004 (7) SCC page 338 (Three Judge Bench), and held that the only remedy, which could be available to the applicant, was to file a petition under section 482 CrPC. The aforesaid cases relied on by the learned Additional Sessions Judge have not dealt with the jurisdiction of the Sessions Judge to hear a revision against the summoning order. The question whether or not the summoning order is an interlocutory order within the meaning of section 397 (2) CrPC was neither raised nor decided in the aforesaid cases. Therefore, the learned Special Judge can not be said to be justified in dismissing the revision as not maintainable. Whenever it is contended that any particular order is an? interlocutory order and the revision is not maintainable under section 397 CrPC, the proper test to appreciate the submission is whether the proceeding would culminate in the event of acceptance of the objection raised against the order. If the proceeding would continue even after acceptance of the objection, the order would be interlocutory but in the event of acceptance of the objection if the proceedings of the case culminate, the order will not be an interlocutory order. If the proceeding would continue even after acceptance of the objection, the order would be interlocutory but in the event of acceptance of the objection if the proceedings of the case culminate, the order will not be an interlocutory order. If this test is applied in the present case, the summoning order can not be said to be an interlocutory order because if the revision filed by the petitioner had been allowed and the summoning order had been quashed, the proceedings initiated on complaint filed by the respondent no.2 would have culminated. Therefore, the learned Special Judge has committed manifest error of law in treating the summoning order as interlocutory order and dismissing the revision as not maintainable. The petition under section 482 CrPC is allowed. The impugned order dated 20.2.2009 passed by the revisional court is set aside and the matter is remanded to the learned Special Judge for a fresh decision in accordance with law. The revisional court is directed to dispose of the revision expeditiously. The learned counsel for the petitioner, however, submitted that the trial court may be directed not to proceed with the criminal case till the disposal of the revision by the learned Special Judge. It is not necessary to pass any order in this regard. The petitioner may move an application for stay before the revisional court and if any such application is moved, the same may be considered and disposed of in accordance with law.