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2025 DIGILAW 1144 (TS)

Mahesh Kulakarni @ Kulkarni v. State of Telangana

2025-10-06

JUVVADI SRIDEVI

body2025
ORDER : JUVVADI SRIDEVI, J. Petitioner filed this Criminal Revision Case seeking to quash the docket order, dated 28.06.2025 passed in C.C.No.6274 of 2025 by the learned Chief Judicial Magistrate at Hyderabad. 2. Heard learned counsel for the petitioner and learned Additional Public Prosecutor appearing for the respondent-State. Perused the record. 3. The de facto complainant is the sister of accused No.1. The case of the prosecution, in brief, is that accused No.1, a Bank employee, manipulated fixed deposit receipts created by his father, wherein the de facto complainant was the nominee. Falsely claiming that the original FDRs were missing, he obtained duplicate FDRs from the Bank. Thereafter, he transferred the amounts of the said FDRs into the account of the petitioner-accused No.2, who is his close associate. 4. Basing on the said complaint, a case in Crime No.219 of 2025 was registered and investigation was taken up. After completion of investigation, charge sheet was filed against the accused before the Magistrate concerned. The learned Magistrate has taken cognizance, and numbered as C.C.No.6274 of 2025 and issued summons to the accused by docket order, dated 28.06.2025, which reads as follows: “Register as C.C.No.6274 of 2025. Taken on file for the offence U/s. 305, 318(2), 317(2) of BNS against A1 and A2. Issue summons to A1 and A2. Call on 07.11.2025.” 5. Aggrieved by the aforesaid order of taking cognizance directing for issuance of process by the learned Magistrate, the petitioner has preferred this revision. 6. Submissions of learned counsel for the petitioner: 6.1. There are disputes between accused No.1 and the de facto complainant, which are purely civil in nature, arising out of family issues, but the present complaint was lodged by the de facto complainant giving a criminal colour. The petitioner, a close friend of accused No.1, had advanced a loan of Rs.21,04,000/- to accused No.1 between March and December 2023, through bank transfers and cash, supported by receipts. Out of the total amount, Rs.18,50,000/- was repaid on 22.05.2025. On 27.05.2025, the petitioner’s bank account was frozen, and on enquiry, he came to know about the present proceedings. Despite his name not being mentioned in the complaint or in the statements of witnesses, he has been arrayed as accused in the charge sheet, without attributing any specific role, except stating that accused No.1 transferred the misappropriated amounts into the account of the petitioner. 6.2. Despite his name not being mentioned in the complaint or in the statements of witnesses, he has been arrayed as accused in the charge sheet, without attributing any specific role, except stating that accused No.1 transferred the misappropriated amounts into the account of the petitioner. 6.2. The learned Magistrate has taken cognizance against the petitioner, without application of mind into the material on record and assigning any valid reasons. In support of his contention, he relied on the judgment of the Hon’ble Supreme Court in Sunil Bharti Mittal v. Central Bureau of Investigation , [AIR 2015 SUPREME COURT 923] and drawn attention of this Court to paragraph Nos.45, 46 and 53, which reads thus: 45. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.” 6.3. Hence, he prayed to set aside the cognizance order, dated 28.06.2025 and to quash the proceedings against the petitioner. 7. On the other hand, the learned Additional Public Prosecutor submitted that the present revision is not maintainable, as the order taking cognizance and issuance of process is an interlocutory order and thus barred under Section 397(2) of Cr.P.C. He further submitted that there are specific allegations against the petitioner, which require a full-fledged trial to determine their veracity. The learned Magistrate has rightly taken cognizance against the petitioner, and hence, he prayed to dismiss the revision. 8. In reply, learned counsel for the petitioner submitted that the order taking cognizance and issuance of process is not an interlocutory order but falls within the category of an intermediate or quasi-final order. Therefore, the bar under Section 397(2) of Cr.P.C. would not apply, and the present revision is maintainable. In support of his contention, he relied on the judgment of the Hon’ble Supreme Court in Rajendra Kumar Sitaram Pande and others v. Uttam and another , [AIR 1999 SUPREME COURT 1028] , wherein, it is held that an order directing issuance of process is not purely interlocutory in nature, but rather an intermediate or quasi-final order, and therefore, the bar under sub- section (2) of Section 397 would not apply. Accordingly, it was urged that the present revision is maintainable and deserves to be considered on merits. 9. As the point of maintainability has been raised, I will take up this issue first. Whether an order taking cognizance and issuance of process is an interlocutory order and therefore not revisable under the revisional jurisdiction is a vexed question of law which on several occasions had been the subject matter of adjudication and the present one is one such occasion. As the answer to this question carries far reaching consequences, I prefer to examine the same in detail. 10. Learned Additional Public Prosecutor submits that the revision is not maintainable against the order taking cognizance and issuance of summons. As the answer to this question carries far reaching consequences, I prefer to examine the same in detail. 10. Learned Additional Public Prosecutor submits that the revision is not maintainable against the order taking cognizance and issuance of summons. On the other hand, learned counsel for the petitioner submits that law does not bar filing of a revision against order taking cognizance and consequential order issuing summons. He further submits that the Courts have held that one can prefer revision against order taking cognizance and issuing summons as the latter is not fully an interlocutory order. 11. Before adverting to answer the same, it is expedient to go through Sections 397(1) and (2) of Cr.P.C. and to consider the intention of the legislation in introducing this new provision under Section 397(2) Cr.P.C. in the year 1973 and also to consider the object of the said legislation. Sections 397(1) and (2) Cr.P.C. reads as under: “Section 397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) .......” 12. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) .......” 12. A plain reading of the aforesaid Section makes it clear that Section 397(1) of Cr.P.C. enables the aggrieved parties to question the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior Court before the revisional Court i.e., the High Court or the Sessions Judge as concurrent jurisdiction is conferred on the High Court and the Sessions Judge by the Section. Now, it is significant to note that Section 397(2) of Cr.P.C. mandates that the power of revision conferred by sub- section (1) of Section 397 of Cr.P.C. shall not be exercised in relation to any interlocutory order in any appeal, enquiry, trial or other proceeding. Therefore, express bar is created by the legislation under Section 397(2) of Cr.P.C. to entertain revision against an interlocutory order. 13. Section 397(2) of Cr.P.C., newly introduced in 1973, was enacted to prevent the misuse of revisional powers by stopping frequent challenges to interlocutory orders. Prior to 1973, there was no bar on filing revisions against interlocutory orders, leading to unnecessary delays and stalling of trial proceedings. Based on the Law Commission’s recommendation, this sub-section imposes an express bar on revisional Courts from entertaining revisions under Section 397(1) of Cr.P.C. against interlocutory orders. This aims to ensure the smooth and uninterrupted progress of trials. While interpreting whether an order is interlocutory, final, or intermediate, Courts must consider the legislative intent behind this provision. It is a settled principle of statutory interpretation that provisions must be construed in line with the object and purpose of the legislation. Hence, in assessing whether an order like taking cognizance or issuing summons is interlocutory or intermediate/quasi-final, the interpretation must align with the goal of preventing unnecessary revisions and ensuring efficient trial proceedings. 14. The Supreme Court had the occasion to consider this question in the case of Amar Nath and Others. Hence, in assessing whether an order like taking cognizance or issuing summons is interlocutory or intermediate/quasi-final, the interpretation must align with the goal of preventing unnecessary revisions and ensuring efficient trial proceedings. 14. The Supreme Court had the occasion to consider this question in the case of Amar Nath and Others. v. State of Haryana and Others , [ AIR 1977 SC 2185 ] , wherein, it has been held as follows: The main question which falls for determination in this appeal is as to the what is the connotation of the term "interlocutory order" as appearing in Sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World. Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object, which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may not doubt amount to interlocutory ordrs against which no revision would lie under Section 397 (2) of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may not doubt amount to interlocutory ordrs against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. 15. The term ‘interlocutory order’ came up for interpretation again before the Supreme Court in the case of Madhu Limaye v. The State of Maharashtra , [ AIR 1978 SC 47 ] , in which, it is held as follows: The majority view is based upon the distinction pointed out in the above order within the meaning of Article 134(1)(c). While Bachawat J., said at page 695: "It is merely a preliminary step in the prosecution and therefore an interlocutory orders." Even though there may be a scope for expressing different options apropos the nature of the order which was under consideration in Mohan Lal's case, in our judgment, undoubteldy, an order directing the filing of a complaint after enquiry made under a provision of the 1973 Code, similar to Section 476 of the 1898 Code will not be an interlocutory order within the meaning of Section 397(2). The order will be clearly revisable by the High Court. We must, however, hasten to add that the majority decision in Mohan Lal's case treats such an order finally concluding the enquiry started to find out whether a complaint should be lodged or not, taking the prosecution launched on the filing of the complaint as a separate proceeding. From that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in Mohan Lal's case. Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2). Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2). Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test, laid down in Kuppuswami Rao's case and in holding that an order of the kind under consideration being not a final order must necessrily be an interlocutory one. If a complaint is dismissed under Section 203 or under Section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the fact of it? The legislature left the power to order further inquiry intact in Sect ion 398. Is it not, then, in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for sectting aside the order adversely made against him in similar circumstances and to quash the proceeding? The answer must be given in favour of the just and reasonable view expressed by us above. 16. In Rajendra Kumar Sitaram Pande’s case (2 supra), at paragraph No.6, the Hon’ble Supreme Court held as follows: 6. Discretion in the exercise of revisional jurisdiction should, Section 397 therefore, be exercised within the four corners of , whenever there has been miscarriage of justice in whatever manner. Under sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression ‘interlocutory order’ has not been defined in the Code. Under sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression ‘interlocutory order’ has not been defined in the Code. In Amar Nath v. State of Haryana (1978) 1 SCR 222 : ( AIR 1977 SC 2185 ), this Court has held that the expression ‘interlocutory order’ in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an ‘interlocutory order’. In Madhu Limaye v. State of Maharashtra (1978) 1 SCR 749 : ( AIR 1978 SC 47 ), a three Judge Bench of this Court has held 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. In V.C. Shukla v. State (1980) 2 SCR 380 : ( AIR 1980 SC 962 ), this Court has held that the term ‘interlocutory order’ used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, 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 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code. 17. Thus, it is evident from the law laid down by the Supreme Court in the aforesaid judgments that the order which affects the rights of the parties is not an interlocutory order. 17. Thus, it is evident from the law laid down by the Supreme Court in the aforesaid judgments that the order which affects the rights of the parties is not an interlocutory order. The order taking cognizance and issuance of process against the accused persons in initiating an action which affects/adjudicates the rights of the accused cannot be said to be an interlocutory order. Interlocutory order is an order of purely interim or temporary nature which does not decide or adjudicate the important rights or liabilities of the parties. The order of the Magistrate directing issuance of process is not interlocutory, it is intermediate or quasi-final, as such, it can be safely construed that the revision against the said order is maintainable. Thus, I hold that the present revision is maintainable. 18. As I have held that this revision is maintainable, now I proceed to examine the issue raised by the learned counsel for the petitioner that the learned Magistrate has taken cognizance against the petitioner, without application of mind into the material on record and assigning any valid reasons. 19. As seen from the cognizance order, dated 28.06.2025, it does not appear that the learned Magistrate has applied mind and nothing was mentioned in the order regarding the facts of the case, which prompted the learned Magistrate to take cognizance. The order of issuance of process is not an empty formality and it is a serious issue. The Court cannot take cognizance and summon the accused to face criminal trial without giving any cogent reasons. The order taking cognizance though not required to be elaborate should reflect proper reasons for taking cognizance of the offence. The judgment of the Hon’ble Supreme Court in Sunil Bharti’s case (1 supra) is squarely applicable to the facts of the present case, as in the present case also, without assigning any convincing reasons, the learned Magistrate has taken cognizance against the petitioner herein and issued summons to him. 20. The judgment of the Hon’ble Supreme Court in Sunil Bharti’s case (1 supra) is squarely applicable to the facts of the present case, as in the present case also, without assigning any convincing reasons, the learned Magistrate has taken cognizance against the petitioner herein and issued summons to him. 20. Accordingly, this Criminal Revision Case is allowed, setting aside the cognizance order, dated 28.06.2025 passed in C.C.No.6274 of 2025 by the learned Chief Judicial Magistrate at Hyderabad and the matter is remanded back to the Court of Chief Judicial Magistrate at Hyderabad for fresh consideration in accordance with law, based on the evidence on record and pass a reasoned order for the purpose arriving at a finding as to whether case for taking cognizance of the alleged offences and for issuance of process against the petitioner has been made or not. It is made clear that the learned Magistrate shall not be influenced by any observations made by this Court in this order. Pending miscellaneous applications, if any, shall stand closed.