Ashok Kumar Srivastava vs State of U.P. and Another

D.C. Srivastava, J.—Since affidavits have been exchanged, this petition is being finally disposed of at the mission stage.

The prayer in this petition u/s 482 of the Code of Criminal Procedure is to quash the proceedings in Case No. 3548 of 1995, Amar Singh v. Uniroyal Textile Industries Ltd. and Ors., under Sections 409 and 420, I.P.C, pending in the court of Metropolitan Magistrate, VIth Kanpur Nagar, in so far as it relates to the Petitioner Ashok Kumar Srivastava. Prayer for interim order has also been made, but since the petition is being finally disposed of, the prayer for interim order hardly requires consideration.

The brief facts are that a complaint under the aforesaid Sections 409 and 420, I.P.C. was filed against the Petitioner and two others statement of the complainant was recorded by the learned Magistrate u/s 200. Code of Criminal Procedure and after considering the material on record, an order dated 2nd December, 1995, Annexure-8 popularly known as summoning order was passed against the Petitioner and two others. The allegation in the complaint that the complainant submitted one application along with bank draft of Rs. 2,500 in the main branch of Canara Bank, Mall Road, Kanpur on 1st December, 1994 for purchasing the shares of Uniroyal Textile Industries Ltd., Accused No. 1. Accused No. 2, Manager Canara Bank was an authorised agent of accused No. 1 for receiving forms and transmitting the same along with the bank draft for allotment of shares. Accused No. 3 was also agent of accused No. 2, Manager, Uniroyal Textile Industries Ltd. The complainant neither received the shares nor refund of his money. He made repeated efforts. Accused Nos. 1 and 2 gave contradictory reply regarding statement of forms and money received from accused No. 3. Inspite of all efforts, the complainant failed in getting the shares or in getting refund of his money. It was alleged that from the letter of accused No. 2, it was clear that the bank draft was not remitted to accused Nos. 1 and 2 by accused No. 3, who is Petitioner in this case. It was further alleged that the third accused in collusion and conspiracy with each other, had dishonestly misappropriated Rs. 2,500 of the Petitioner and have cheated him.

Number of documents have been filed along with this petition.

In the counter-affidavit, assertions made in the affidavit have been controverted and it has been pleaded that Section 482, Code of Criminal Procedure is not applicable and no petition under this Section can be entertained nor the defence can be seen at this stage. It is further deposed in the counter-affidavit that it is open to the applicant to raise issues before the trial court as the summoning order was ex parte order.

After hearing learned Counsel for the parties and perusing the material on record, it can be observed at the first instance that inherent jurisdiction u/s 482, Code of Criminal Procedure is to be sparingly exercised. It is a provision like Section 151 of the Code of Civil Procedure. If there is specific provision in the Code of Criminal Procedure for getting a relief, the same should be availed of and not that straightaway request should be made for exercise of inherent jurisdiction by the High Court. In the instant case, summoning order has been passed by the concerned Magistrate vide Annexure-8. The summoning order is not an interlocutory order and a revision against such order is maintainable. Consequently, inherent jurisdiction should not be exercised.

Learned Counsel for the Petitioner, however, relying upon the case of K.M. Mathew v. State of Kerala and Anr. AIR 1992 SC 220, contended that since in the present case, the Supreme Court has held that such order is interim order, hence no revision lies. I am afraid that such proposition has been laid down by the Apex Court in this case. On the other hand, the facts in this case were altogether different. In this case, a complaint was filed against the Chief Editor, the Printer and Publisher of the newspaper u/s 504/34, I.P.C. The Magistrate recorded the statement of the complainant on oath and registering the complaint case, issued summons to the accused. Upon receiving summons, the accused appeared and pleaded not guilty. K.M. Mathew one of the accused contended before the Magistrate for dropping the proceedings against him on the ground that there was no allegation in the complaint that he as Chief Editor was responsible for selection of the news Item and publication thereof nor was there any averment In the complaint that the Chief Editor was perused the material or edited the same before Its publication or its publication was done with his knowledge or consent. The Magistrate after hearing the Chief Editor dropped the proceedings against him. A revision was filed and the High Court set aside the order of the Magistrate. In Special Leave Petition, the Supreme Court held that the Magistrate was justified in dropping the proceedings because there was no allegation against the Petitioner In the complaint. In Paragraph 8, page 2208, the Supreme Court observed as follows:

The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.

Besides the above observation, it was no where held in this judgment that summoning order is an interlocutory order against which no revision lies. On the other hand, it seems that the words that the order issuing the process is an interim order and not a judgment was used in the context of Section 362 of the Code of Criminal Procedure which provides that save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

What is prohibited u/s 362 of the Code of Criminal Procedure Is the alteration or review of a signed judgment or final order disposing of a case except for removal of clerical or arithmetical error. An order summoning the accused is neither a judgment nor a final order disposing of the case and in this context, the Supreme Court observed that an order summoning the accused can be recalled by the Magistrate, if he finds, after hearing the accused that there is no prima facie allegation against him in the complaint. In my opinion, since revision is maintainable against the summoning order, the petition u/s 482 of the Code of Criminal Procedure in exercise of inherent jurisdiction cannot be maintained.

Even on merits, this case is distinguishable from the facts of K.M. Mathew''s case. In that case, there was no allegation against the Chief Editor in the complaint. In the case before me, the copy of complaint, Annexure-1 do alleges in Paragraphs 5 and 6 regarding conspiracy, collusion, misappropriation and cheating by all the three accused. Consequently, it is not a case where no allegation has been made against the Petitioner, who is Branch Manager of Canara Bank, Mall Road, Kanpur.

On merits also, learned Counsel for the Petitioner continued that the aforesaid offences are not made out. However, the papers filed in defence cannot be seen at this stage in exercise of jurisdiction u/s 482 of the Code of Criminal Procedure.

For the reasons given above, in the first place the petition is not maintainable and in the second, there is no merit in it. The petition is accordingly dismissed.