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2016 DIGILAW 2557 (ALL)

FAIYAZ ALI v. STATE OF U. P.

2016-07-25

ABHAY MAHADEO THIPSAY

body2016
JUDGMENT Hon’ble Abhay Mahadeo Thipsay, J.—Heard Mr. Shailesh Kumar Srivastava, learned counsel for the petitioner and Shri Anurag Verma, learned Additional Government Advocate. 2. By consent, heard finally forthwith. Calling for the record of the proceedings is dispensed with. 3. In view of the order that is being passed, it is not necessary to issue notice to the opposite party No. 2 and to hear him. 4. The petitioner is one of the accused in complaint case No. 2710 of 2001 pending in the Court of the Judicial Magistrate, 1st class, Pratapgarh. The petitioner and the other accused had approached the Court of Sessions by filing an application for revision challenging the order issuing process against them. This revision application was dismissed by the Additional Sessions Judge by his order dated 18.5.2016 holding that the order impugned being interlocutory, was not revisible. Being aggrieved thereby, the petitioner has approached this Court by filing the present petition invoking the inherent powers of this Court. 5. It is not possible to accept that an order issuing process against an accused is an interlocutory order and that, therefore, there would be a bar to exercise the powers of revision in relation to such an order. The law in this regard is well-settled. Nevertheless, reference may be made only to a few authoritative pronouncements. 6. In the case of Amarnath v. State of Haryana, AIR 1977 SC 2185 , the question as to what is meant by the term interlocutory order appearing in sub-section (2) of Section 397 of the code fell for the consideration of Their Lordships. A Three Judges Bench of the Supreme Court of India, in that case, laid down that an order which substantially affects the rights of the accused, or decides certain rights of the parties, cannot be said to be an interlocutory order so as to bar a revision. 7. Relying on the aforesaid decision in the case of Amarnath (supra), a learned Single Judge of this Court in the case of Ratan Singh v. Kusum and others, 1984 ALL LJ 298, held that clearly, the order summoning an accused would not be termed as an interlocutory order as envisaged under Section 397 (2) of the Code and could be challenged by instituting revision proceedings. 8. 8. In the case of Rajendra Kumar Sitaram Pande and others v. Uttam and another, AIR 1999 SC 1028 , Their Lordships of the Supreme Court of India were dealing with an appeal from an order passed by the Bombay High Court, in which the High Court had held that the order issuing process was only an interlocutory order and was not amenable to the jurisdiction of the learned Sessions Judge under Section 397 of the Code. The High Court had specifically held that the Sessions Judge had committed an error in interfering with the order of the Magistrate directing the issuance of process. Their Lordships of the Supreme Court of India did not agree with the High Court. After referring to the case of Madhu Limaye v. State of Maharashtra, 1978(1) SCR 749 , wherein a Three Judges Bench of the Supreme Court of India had held that an order rejecting the plea of the accused on a point which when accepted, will conclude the particular proceeding, cannot be held to be an interlocutory order and to the case of V.C. Shukla v. State, 1980(2)SCR 380, Their Lordships categorically held that it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 of the Code would apply. It was categorically held that the High Court was not justified in holding that the Sessions Judge had no jurisdiction to interfere with the order issuing process in view of the bar under sub-section (2) of Section 397 of the Code. 9. Thus, the view of the learned Additional Sessions Judge that the order issuing process was an interlocutory order, was clearly erroneous and contrary to law. 10. In support of his view that the order issuing process was an interlocutory order, the learned Additional Sessions Judge has relied on the decisions in the following three cases: “(i) Poonamchandra Jain v. Faijru, 2005 (1) LP 58 (SC). (ii) Subramaniyam v. Maharashtra, (2004) 6 SCC 662 (iii) Daulat Prasad v. Indal and others, (2004) 7 SCC (3)” 11. I have gone through these decisions. 12. (ii) Subramaniyam v. Maharashtra, (2004) 6 SCC 662 (iii) Daulat Prasad v. Indal and others, (2004) 7 SCC (3)” 11. I have gone through these decisions. 12. In the case of Poonam Chandra Jain (supra), the question whether the order issuing process would be an interlocutory order and that whether a bar under Section 397 (2) of the Code would be applicable in the event of a revision being filed against the said order, did not fall for the consideration of Their Lordships, at all. In fact, para 13 of the reported judgment shows that though the counsel for one of the parties had raised a contention that order issuing process is an interlocutory order, which was countered by the counsel for the other party by referring to some decided cases and contending that issuance of process is not an interlocutory order, Their Lordships of the Hon’ble Supreme Court did not decide that issue, as it did not fall for determination in the said case, the question really involved therein, being totally different. 13. In the case of Subramaniyam (supra) what was laid down was that ‘the Magistrate who has issued process, cannot himself review, or reconsider the said order, as there was no provision for review of such order by the same Court.’ This judgment does not say that an application for revision before the Superior Courts would not be maintainable against the order issuing process. 14. The third case cited namely ‘Daulat Prasad’ case could be found by this Court, inspite of taking assistance of the learned counsel for the petitioners as well as the learned Additional Government Advocate. From the citation of the said case as mentioned in the order, the case appears to be of Adalat Prasad v. Rooplal Jindal and others (and not Daulat Prasad). Even in that case, Their Lordships were concerned with the question as to whether a Magistrate who had issued process, was competent to recall his order. This judgment does not deal with the question as to whether a revision challenging the order issuing process would be maintainable. 15. The learned Additional Sessions Judge has been extremely careless in disposing the revision, in the manner in which, he has done it. This judgment does not deal with the question as to whether a revision challenging the order issuing process would be maintainable. 15. The learned Additional Sessions Judge has been extremely careless in disposing the revision, in the manner in which, he has done it. The case law cited before him was not properly examined by him and even the names of the parties in the third case have not been stated correctly in the impugned order. 16. Since it is well-settled that the order issuing process is amenable to the revisional jurisdiction of the Court of Sessions, the impugned order is clearly bad. The learned Additional Sessions Judge was required to decide the revision application on merits. 17. The application is allowed. 18. The impugned order is set aside. 19. The revision application be restored to the file of the learned Additional Sessions Judge, who shall decide the same expeditiously and in accordance with law, by keeping the observations made in this order in mind. 20. It is clarified that no opinion on the merits of the case has been expressed by this Court.