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2010 DIGILAW 813 (ALL)

ASHOK KUMAR PANDEY v. STATE OF U. P.

2010-03-12

R.A.SINGH

body2010
JUDGMENT Hon’ble Ram Autar Singh, J.—I have heard Shri V.D. Dubey, learned counsel for the revisionists, learned A.G.A. for respondent No. 1 and Shri N.D. Shukla for the respondent No. 2 on this revision and perused the record. 2. This revision has arisen out of judgment and order dated 13.2.2004 passed by Shri Lalta Prasad Pandey, Additional Sessions Judge, Court No. 3, Bhadohi at Gyanpur in Criminal Revision No. 120 of 1996, Sankatha Prasad v. Ashok Kumar Pandey and others, whereby revision has been allowed and the order dated 20.8.1996 passed by Additional Civil Judge (Junior Division), IIIrd Gyanpur in Criminal Revision No. 198 of 1996, Sankatha Prasad v. Ashok Kumar etc. has been set aside. 3. The brief facts arising out of the case are that Sankatha Prasad Pandey respondent No. 2 of this revision instituted a complaint case No. 198 of 1996 against Ashok Kumar and others revisionists under Sections 323, 325, 504, 506, 427 I.P.C. in the Court of Additional Civil Judge (Junior Division) IIIrd Bhadohi with this allegation that on 22.5.1995 at about 8 a.m. accused persons, namely, Ashok Kumar etc. started to pluck mangoes from the trees of complainant and when Ashish son of complainant and his nephew Aloka Nand asked them to restrain from plucking mangoes, accused persons abused and assaulted complainant Sankatha Prasad Pandey and above persons causing grievous injuries to them as well as Lalman, who reached there to rescue them. The occurrence was witnessed by Hira Lal, Rama Shanker, Kamla Shanker, Jawahar Lal etc., who intervened and then accused persons threatening left the place of occurrence. The accused persons caused damage worth Rs. 3,000/- to complainant by plucking mangoes. 4. The complainant went to P.S. Gopiganj and lodged an F.I.R. and then got his injuries as well as injuries of other persons examined by doctor and he also got his hand x-rayed in District Hospital, Mirzapur, in which his hand was found fractured. 5. The complainant examined himself under Section 200 Cr.P.C. and witnesses Hira Lal, Lalman and Rama Shanker under Section 202 Cr.P.C. as well as filed documentary evidence. The learned Magistrate summoned the revisionists to face trial under Sections 323, 325, 504, 506, 427 I.P.C. vide order dated 7.12.1995. The accused persons then appeared before the Court below and filed objections against summoning order dated 7.12.1995 on the various grounds. The learned Magistrate summoned the revisionists to face trial under Sections 323, 325, 504, 506, 427 I.P.C. vide order dated 7.12.1995. The accused persons then appeared before the Court below and filed objections against summoning order dated 7.12.1995 on the various grounds. The learned Magistrate, after having heard the learned counsel for the parties, allowed objections filed by the accused persons and set aside summoning order vide its order dated 20.8.1996, against which Sankatha Prasad Pandey respondent No. 2 filed Criminal Revision No. 120 of 1996, Sankatha Prasad v. Ashok Kumar Pandey and others, which was allowed by Additional Sessions Judge, Court No. 3, Bhadohi at Gyanpur on 13.2.2004 and set aside the order dated 20.8.1996. 6. The learned counsel for the revisionists contended that the Court below wrongly came to the conclusion and passed the impugned order against the provisions of Criminal Law by setting aside order dated 20.8.1996 passed by the learned trial Court because in view of settled law, the benefit of doubt would always go to the accused but the Court below over looked this principle. The learned Court below did not consider the material available on record and passed its order by setting aside the order dated 20.8.1996 as well as misinterpreted the rights of the accused to be heard at the stage of summoning order. 7. A perusal of record would go to show that the learned Magistrate relied on principle laid down in Kailash Chaudhary case and held that summoning order being ex-parte would be liable to be set aside on the basis of objections filed by the accused persons. The learned Magistrate further observed that the complainant filed photostat copies of injury reports which were not admissible in evidence under the provisions of Evidence Act. It was further observed that an F.I.R. was lodged with inordinate delay which was not explained. The learned Magistrate further observed that summoning order was passed without considering the questions of enmity between the parties on the basis of which the said complaint was filed. 8. The learned counsel for the respondent No. 2 controverting above submissions supported the judgment and order passed by the Court below in Criminal Revision No. 120 of 1996. The learned Magistrate further observed that summoning order was passed without considering the questions of enmity between the parties on the basis of which the said complaint was filed. 8. The learned counsel for the respondent No. 2 controverting above submissions supported the judgment and order passed by the Court below in Criminal Revision No. 120 of 1996. The learned counsel for the respondent No. 2 relied on the decision of Subramanium Sethuraman v. State of Maharashtra and another, 2005 (51) ACC 684 (SC), wherein the Full Bench of Hon’ble Apex Court held that it would be impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. It was further observed that summoning order should be challenged only through application under Section 482 Cr.P.C. and no other remedy was available to the accused to challenge the same except by invoking extraordinary inherent power of the Court under Section 482 Cr.P.C. 9. The learned counsel for the respondent No. 2 further relied on the decision of Adalat Prasad v. Rooplal Jindal and others, 2004 (50) ACC 924 (SC), wherein the Hon’ble Apex Court held that in absence of any review power or inherent power with subordinate Criminal Courts, the remedy against summoning order would lie by invoking inherent jurisdiction under Section 482 Cr.P.C. If a Magistrate takes cognizance and issues process, no review is provided in Code. Law that no specific provision is required for recalling an erroneous order, is not correct law. In none of these stages the Code has provided for hearing the summoned accused making an application on receipt of summons, for dismissal of complaint under Section 203 Cr.P.C. is impermissible. The Hon’ble Apex Court has recorded certain observations in paragraphs 13, 14 and 15 which are reproduced below : “13. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground of proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew’s case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt summons approaching the Court and making an application for dismissal of the complaint under Section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 14. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking Section 482 of Code. 15. Hence in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking Section 482 of Code. 15. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.” 10. In view of above the principle laid down by the Hon’ble Apex Court, the learned Additional Sessions Judge, Court No. 3, Bhadohi at Gyanpur in Criminal Revision No. 120 of 1996, Sankatha Prasad v. Ashok Kumar Pandey and others, has passed the correct order by setting aside the order dated 20.8.1996 passed by learned Magistrate, who acted illegally in reviewing his own summoning order, while the learned Magistrate could not pass the order reviewing his own order. The learned Additional Sessions Judge, Court No. 3, Bhadohi at Gyanpur, has not committed any error or illegality in passing the order in question in above Criminal Revision No. 120 of 1996. Consequently, this revision lacks merit and is dismissed. ————