Research › Search › Judgment

Uttarakhand High Court · body

2010 DIGILAW 186 (UTT)

DINKAR KHOSLA v. A. K. MEHTA

2010-04-08

PRAFULLA C.PANT

body2010
JUDGMENT Heard learned counsel for the parties. 2. This revision is directed against the judgment and order dated 30th of April 1997, passed in Criminal Revision No. 75 of 1996, whereby first Addl. Sessions Judge, Dehradun, has allowed said revision, and set aside the order dated 27.05.1996, summoning the accused in Criminal Complaint Case No. 498 of 1995, Dinkar Khosla Vs. Manager, Canara Bank and others, relating to offences punishable under Section 418, 406, 120-B of I.P.C. 3. Brief facts of the case are that Dinkar Khosla (complainant/revisionist) filed a Criminal Complaint No. 498 of 1995, stating that his father Kesho Ram Khosla died on 12.02.1994, who had executed a Will in his favour, and he is entitled to the invested amount of the deceased, in Unit Trust of India (U.T.I.), Post Office and Fixed Deposits K.D.Rs. in the banks. The deceased had two K.D.Rs. Nos. 874 of 1993 and 875 of 1993, respectively, with the Canara Bank, Arhat Bazar. It appears that the complainant made request to the Manager, Canara Bank, for release of the money. However, respondent No. 2 Smt. Harsh Khosla (wife of the complainant/revisionist) who was nominee of the deceased succeeded in getting released the amount relating to fixed deposits. The complainant thereafter filed criminal complaint alleging that the Manager of the Bank has conspired with the respondent No. 2 Smt. Harsh Khosla in getting released the amount. The Judicial Magistrate after recording statement of the complainant under Section 200 of Cr.P.C., and that of witness Inder Sen under Section 202 of Cr.P.C. summoned the accused i.e. Manager, Canara Bank and Smt. Harsh Khosla (present respondents No. 1 and 2) as accused, in the criminal complaint case. The said two accused moved recall application before the Magistrate. Said recall application was rejected vide order dated 27.05.1996, by the Magistrate. Aggrieved by said order, the Manager, Canara Bank, filed Criminal Revision No. 75 of 1996, before the Sessions Judge, Dehradun, which was transferred to, heard and disposed of by I Addl. Sessions Judge, Dehradun, vide impugned order dated 30th of April 1997, whereby order rejecting application to recall summoning order, is set aside. Hence, this revision by the complainant. 4. In view of the principle of law laid down in Krishnan and another Vs. Sessions Judge, Dehradun, vide impugned order dated 30th of April 1997, whereby order rejecting application to recall summoning order, is set aside. Hence, this revision by the complainant. 4. In view of the principle of law laid down in Krishnan and another Vs. Krishnaveni and another; 1997 Supreme Court Cases (Cri) 544, a second revision is not maintainable before the High Court at the instance of the same party whose revision has been dismissed by the Sessions Judge. But the party who was opposite party before the Sessions Judge in the revision, if aggrieved by order of the Sessions Judge, can maintain a revision before the High Court. As such, this revision by the complainant is maintainable. 5. Learned counsel for the complainant/revisionist drew attention of this Court to the cases of Adalat Prasad Vs. Rooplal Jindal and others; (2004) 7 Supreme Court Cases 338, and Subramanium Sethuraman Vs. State of Maharashtra and another; 2005 Supreme Court Cases (Cri) 242, and argued that the learned Sessions Judge/Addl. Sessions Judge should not have entertained the revision filed by the complainant against the summoning order. It is contended that only a petition under Section 482 of Code of Criminal Procedure, 1973 (for short the Code) could have been filed against the summoning order, passed by the Magistrate. 6. Having gone through the aforesaid two cases, referred on behalf on complainant/revisionist, this Court does not find a single word which says that the revision is not maintainable before the Sessions Judge under Section 397 of the Code. What has been said by the Apex Court in aforesaid two cases is that an order summoning the accused can be quashed by the High Court in its power under Section 482 of the Code. There is no ratio decendi that where 482 is maintainable before the High Court, revisional power cannot be exercised by the Sessions Judge. 7. Section 397 of the Code empowers Sessions Judge and the High Court to call for and examine the record of any proceedings under the Code to satisfy itself as to the correctness and legality of any finding, sentence or order recorded or passed by the inferior court to it. Sub-Section (2) of Section 397 provides that no powers of revision shall be exercised in relation to interlocutory orders. Sub-Section (2) of Section 397 provides that no powers of revision shall be exercised in relation to interlocutory orders. Now, the question is whether the summoning order passed under Section 204 of the Code, is an interlocutory order, or not? To understand it correctly it is pertinent to mention here that a criminal complaint is entertained by the Judicial Magistrates under Chapter XV. Section 200 of the Code empowers the Magistrate to examine the complainant on oath while entertaining the criminal complaint. Section 202 empowers the Judicial Magistrate to examine the witnesses while making an enquiry on the criminal complaint. Thereafter, the Magistrate has two options. If he finds that there is no sufficient ground for proceeding further he would dismiss the criminal complaint under Section 203 of the Code. But, if he is of the opinion that there is sufficient ground to take cognizance, after examination of the complainant and the witnesses as above, he may summon the accused under Section 204 of the Code. As such, the order passed under Section 203 of the Code and the order passed under Section 204 of the Code are facets of the same coin. By adopting the course of Section 203 of the Code, the case gets decided finally, while by adopting the course under Section 204 of the Code, the case proceeds further. In such a situation if the aggrieved party challenges summoning order, and succeeds in his case, the criminal complaint would get dismissed and the case would stand finally decided. Therefore, it cannot be said that the revision is not at all maintainable against the order passed under section 204 of Cr.P.C., by the Magistrate. That being so, this Court does not find that the Sessions Judge has committed any error of law in entertaining the revision. 8. As far as the merits of the case are concerned, the revisional court has given detailed reasons showing the illegality in the summoning order, passed by the Magistrate. Having considered submissions of learned counsel for the parties and after going through the impugned order, which is detailed and well discussed and supported by case laws, this Court is not inclined to interfere with the same. 9. Therefore, this revision is dismissed.