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2011 DIGILAW 225 (CHH)

SANT KUMAR SHUKLA v. MOVIN

2011-07-11

MANINDRA MOHAN SHRIVASTAVA

body2011
ORDER 1. This petition is directed against order dated 7/11/08 passed by the Sessions Judge, Koriya in Criminal Revision No.46/07 by which the petitioner's revision against issuance of process of a complaint has been dismissed. 2. A complaint was filed by the non-applicant No.1 against the petitioner alleging commission of offence under Section 506, 294 IPC including 341 read with Section 34 IPC before the Chief Judicial Magistrate, Baikunthpur. After recording statements of the complainant's witnesses, the Chief Judicial Magistrate vide its order dated 31/5/07 registered offence against the petitioner and directed issuance of process. Aggrieved by the aforesaid order, the petitioner preferred revision before the learned Sessions Judge, assailing the correctness and validity of order of taking cognizance and issuance of process. However, vide impugned order, the learned Sessions Judge has dismissed the revision holding that the revision petition itself is not maintainable as issuance of process by registering criminal case is merely an interlocutory stage and therefore, provisions under/Section 397 (2) CrPC would be attracted and only remedy for the petitioner is to take recourse to provisions under Section 482 CrPC. 3. The sole submission of learned counsel for the petitioner is that on complaint made before the Magistrate, the statements were recorded whereupon the Magistrate, after applying its mind, has come to the conclusion that a case of registering offence is made out and therefore, taken cognizance by registering offence' under Section 294 and 506 IPC against the petitioner has directed issuance of summons which cannot be said a mere interlocutory order in the sense, it has been used under Section 397 (2) CrPC, so as to bar exercise of revisional jurisdiction. In support of his submission, learned counsel for the petitioner placed reliance upon the decision of the Supreme Court in the case of Rajendra Kumar Sitaram Pande and others Vs. Uttam and another and Dhariwal Tobacco Products Limited and others Vs. State of Maharashtra and another Further submission of learned counsel for the petitioner is that the learned Court below has completely misconstrued the judgment of the Supreme Court in the case of Adalat Prasad Vs. Rooplal Jindal. Uttam and another and Dhariwal Tobacco Products Limited and others Vs. State of Maharashtra and another Further submission of learned counsel for the petitioner is that the learned Court below has completely misconstrued the judgment of the Supreme Court in the case of Adalat Prasad Vs. Rooplal Jindal. The record show that upon complaint being filed by the complainant, the Magistrate recorded preliminary statements of the complainant witnesses and thereafter, recorded that a case for trial is made out registering offence under Section 294/506 IPC and directed issuance of summons thereby initiating criminal proceedings against the petitioner. It is against this order, that the petitioner preferred revision invoking provision under Section 397 CrPC. 4. On the other hand, learned counsel for the respondent no.1 supports the order passed by the learned revisional Court. 5. The issue involved in this case as to whether an order taking cognizance by registering offence is purely interlocutory so as to bar exercise of revisional jurisdiction under Section 397 CrPC, is no longer res integra. In the case of Rajendra Kumar1 (supra), the Supreme Court held that an order directing issuance of process cannot be termed as purely interlocutory so as to attract bar as engrafted under Section 397 (2) of the CrPC. In a more recent decision in the case of Dhariwal Tobacc02 (Supra), this aspect came up for consideration and relying upon its earlier decision in the case of R.P.Kapur Vs. State of Punjab and other decisions, it is held - "6. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P.Kapur v. State of Punjab, AIR 1960 SC 866 to Som Mittal v. Government of Karnataka, 2008 (3) SCC 574 has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397 (2) of the Code, the inherent power of the Court has been held to be available." 6. The Supreme Court also considered its earlier decision in the case of Amar Nath Vs. State of Haryana4, which was also relied upon in its decision in the case of Rajendra Kumar) (Supra). In the case of Amarnath4 (Supra), it was opined - "10...... ..It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of theirs was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised by the High Court under sub-sections (1) and (2) of Section 397 of the 1973 code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded, was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistrate's passing an order prima facie in a mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not nave faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial." 7. If the appellants were not summoned, then they could not nave faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial." 7. The learned revisional Court has completely misdirected itself in coming to the conclusion that the revisional jurisdiction against the order of issuing process is barred under Section 397 (2) of the CrPC, in view of the dicta of the Supreme Court in the case of Adalat Prasad (Supra). In the case of Dhariwal Tobacco (Supra), the judgment in the case of Adalat Prasad (Supra) was explained by the Supreme Court, in following words" 8. In fact in Adalat Prasad v. Rooplal Jindal, to which reference has been made by the learned Single Judge of the Bombay High Court in V.K.Jain, this Court has clearly opined that when a process is issued, the provisions of Section 482 of the Code can be restored to. It may be true, as has been noticed by the High Court that thereunder availability of appellate or revisional jurisdiction of the High Court did not fall for its consideration but in our considered opinion it is wholly preposterous to hold that Adalat Prasad (Supra) so far as it related to invoking the inherent jurisdiction of the High Court is concerned, did not lay down good law. The High Court in saying so did not only read the said judgment in its proper perspective : it misdirected itself in saying so as it did not pose unto itself a correct question." 8. The upshot of above discussion is that the impugned order of the learned revisional Court declining to exercise its jurisdiction on the ground that no revision is maintainable, in view of the bar under Section 397 (2) of CrPC, is illegal and unsustainable in law. The Court below has failed to exercise jurisdiction vested in it by law. 9. Accordingly, the petition is allowed. The impugned order is set aside and the matter is remanded back to the learned revisional Court for consideration of petitioner's revision, on its own merits and in accordance with law. Petition Allowed.