Kailash Chand Agrawal vs State of U.P.

K.L. Sharma, J.—This is a petition u/s 482, Cr.P.C. for quashing the order dated 22-4-1994 passed by VI Additional Sessions Judge, Aligarh in Criminal Revision No. 42 of 1994, Ram Kishan v. State.

I have heard Sri I. M. Khan counsel for applicant as well as learned A.G.A. and perused the material brought on record.

The applicant filed a complaint case against the opposite party Nos. 2 to 5 under Sections 342, 323, 504, 506, 348, I.P.C. before the C.J.M. Aligarh and examined himself and his two witnesses Ashok Kumar P.W. 1 and Rakesh Kumar P.W. 2 u/s 202, Cr.P.C. The learned C.J.M. was pleased to find a prima facie case and summoned the opposite party Nos. 2 to 5 by his order dated 29-10-1993. They filed a Criminal Revision No. 42 of 1994 before the Sessions Judge, Aligarh which was heard and decided by the VI Additional Sessions Judge Aligarh who was pleased to allow the revision and set aside the summoning order dated 29-10-1993 and discharged the revisionists-opposite party Nos. 2 to 5. The complainant felt aggrieved against this order passed in criminal revision.

The learned counsel for the applicant has contended that the learned Sessions Judge did not have jurisdiction u/s 397(2), Cr.P.C. to entertain the revision against the summoning order which was of interlocutory nature. In support of his contention, he has referred to the decisions of this Court in the case of Kailash Chaudhari and Ors. v. State of U. P. , and Anil Kumar Mathur v. State of U.P. 1994 ACC 535 . It is true that against the summoning order passed by the Magistrate in complaint case, it has been decided that the person summoned on ex parte consideration of material or evidence must appear and file objection before the same Court which is competent to recall the ex parte order and can even drop the proceeding if it is satisfied that the case is not made out. But these decisions do not totally create a bar before the Court of Sessions or the High Court for entertaining a revision against a summoning order. In the leading cases of Madhu Limaye Vs. The State of Maharashtra, ; Amar Nath and Others Vs. State of Haryana and Another, and V.C. Shukla Vs. State through C.B.I., , the Hon''ble Supreme Court has held that the expression ''interlocutory order'' has been used in Section 397(2) of the Code with a restricted sense. It denoted order of a purely interim or temporary nature which do not decide or touch the important right or liability of the parties and any order which essentially affects the right of the accused is not an inerlocutory order. The following observations made by the Hon''ble Supreme Court are worth reproduction :-

"... But undoubtedly in the context of Section 397(2) read with Section 482 of the Code, this Court with a view to providing a judicial umbrella of active supervision for reaching possible correctible justice by activist attitude and pragmatic interpretation found a third class of orders neither interlocutory nor final but intermediate and, therefore, outside the bar of Section 397(2) of the Code of Criminal Procedure...."

"...Having given a thoughtful consideration my humble view is that the Supreme Court in V.C. Shukla''s cases (supra) has upheld the view taken by Hon''ble UNTWALIA, J. (as he then was) in Madhu Limaye''s case (supra) that sub-section (2) of Section 397 of the new Code kept purely interlocutory orders beyond the purview of sub-section (1) of Section 397 and not intermediate orders. In other words, intermediate orders are amenable to the revisional jurisdiction of either the Sessions Court or the High Court, what is an intermediate order? The meaning of this term is contained in volume 60 of the Corpus Juris Secondum, It says :-

"An intermediate order has been defined as the one made between the commencement of an action and the entry of the judgment."

"And this has been approved by the Supreme Court in V.C. Shukla''s case (supra) in paragraph 22. As shown above criminal proceedings against a person commence only when a summons is issued against him by a competent Court u/s 204 of the new Code. Therefore, the conclusion is inevitatable that an order passed u/s 204 of the new Code issuing a process to a person to appear as an accused is an intermediate order within the meaning of sub-section (2) of Section 397 of the new Code. The instant revision application is, therefore, maintainable in this Court."

In view of the decision of the Hon''ble Supreme Court, the contention raised by the learned counsel for applicant does not have substance. The criminal revision filed against the order of summoning passed by the Chief Judicial Magistrate was maintainable before the Sessions Judge and it has been rightly entertained and decided.

The Second argument urged by the learned counsel for the applicant is that no notice of hearing of revision has been given by the learned counsel for revisionist - opposite party Nos. 2 to 5 and as such he has been deprived of the right of hearing. A perusal of the detailed order rendered by the learned Sessions Judge clearly states that a notice of hearing of revision was given but the learned counsel did not appear. Moreover, in the case of a Criminal revision u/s 397, Cr.P.C. hearing of a party is not an absolute right. The requirement of the provision is that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court 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 give the necessary direction. Therefore, if the counsel for a particular party to the revision is not informed of the date of hearing, this does not vitiate the decision rendered by the revisional Court on the perusal of record. If any party appears and revisional Court hears him in addition to the perusal of record, the decision rendered in such a manner is also not vitiated at all. It is the question of the satisfaction of the revisional Court whether impugned order passed by the inferior Criminal Court is alright or calls for any interference or direction. Here in the present case, the revisional Court has thoroughly examined the record and the propriety or correctness of the impugned order and has come to the conclusion that the learned Magistrate has passed the order in a mechanical manner by simply stating that he has perused the evidence and documents on record, when there is no prima facie evidence to make out any sufficient ground for summoning the accused in any of the offences mentioned therein. After assessing the value of the oral evidence recorded u/s 202, Cr.P.C. and the documents filed by the complainant, the learned Sessions Judge has come to the conclusion that only intention of Sri K.C. Agrawal complainant in filing the complaint was to put pressure on Sri R. K. Gupta in the case registered as Crime No. 407 of 1993 and this is nothing but an abuse of process of the Court. He has further found that the complaint carries a concocted and highly improbable story. The revision order does not suffer from any infirmity or illegality and this Court has no reason to interfere in the decision rendered by revisional Court on a proper appraisal of the evidence adduced by the complainant in the inquiry u/s 202, Cr.P.C. before the learned Magistrate.

Consequently this petition u/s 402, Cr.P.C. is hereby dismissed.