Kamaludin alias Kamal vs Mangal Das

Harphul Singh Brar, J.

This is revision petition under Section 401 of the Code of Criminal Procedure, for quashing judgment dated July 18, 1989 of the Additional Sessions Judge, Gurgaon vide which he set aside the order dated September 25, 1987 of the Judicial Magistrate First Class, Gurgaon, vide which he had summoned the respondents under Section 420, Indian Penal Code.

Kamaludin petitioner had filed a complaint under Section 420 of the Indian Penal Code against the accused, now respondents in the petition. The complainant had alleged in his complaint that the accused and Deepak son of Prem Prasad were the owners of agricultural land detailed in para 1 of the complaint. The agricultural land was in cultivating possession of one Rooda son of Matru as tenant gair mourusi. Mangal Dass for himself and on behalf of his coaccused as their General Power of Attorney entered into an agreement on July 24, 1985 with the complainant regarding the agricultural land mentioned in Para 1 of the complaint. The transaction was witnessed by PWs Bhola, Abdul, Basu and Yasin. Accused No. 1 Mangal Dass mentioned in the agreement himself as General Power of Attorney of accused 2 to 7 and 6 to 10. Accused No. 1 received Rs. 5000/ as advance sale price as part payment out of the total sale consideration and he promised to get the tenant Rooda ejected from the suit land and for that purpose he received Rs. 400/ as expenses from the complainant. Accused Mangal Das filed ejectment petition against tenant Rooda on August 23, 1985 on the ground of nonpayment of batai, but later on accused Mangal Das colluded with Rooda etc. and executed an agreement in favour of Rooda and his son Kalu for a sale consideration of Rs. 43,000/. The sale consideration so agreed was Rs. 13,000/ more than that was agreed between the complainant and the accused. The agreement in favour of Rooda etc. was executed by accused Mangal Das on behalf of himself and other accused in the capacity of their General Power of Attorney. The complainant filed a suit for permanent injunction against Mangal Das etc., in which stay had been granted in favour of the complainant. It is alleged that in that suit the other accused had filed a written statement, in which they had stated that the alleged Power of Attorney in favour of Mangal Das was forged one and accused Deepak had been stated to be a minor. It had also been alleged that in the written statement filed by all the accused in the alleged civil suit still pending in the court of competent jurisdiction mentioned that the ejectment petition had been dismissed whereas that was still pending at that time. It is then alleged in the complaint that the accused had executed an Ikrar Nama first in the name of the complainant and had received earnest money from the complainant but later on he colluded with the tenant Rooda and executed another agreement of the same property and also received consideration from him. The accused had also withdrawn the suit for permanent injunction against Rooda in a clandestine manner. Ultimately, it is alleged in the complaint that the accused had cheated the complainant and are, thus, liable to be proceeded against under Section 420 of the Indian Penal Code.

The learned Judicial Magistrate summoned the accusedrespondents under Section 420, Indian Penal Code.

The respondent Mangal Das etc. filed a Revision Petition against the order of the Judicial Magistrate First Class, Gurgaon, dated September 25, 1987. The learned Additional Sessions Judge, Gurgaon, vide his judgment dated July 18, 1989 set aside the order, dated September 25, 1987 of the learned Judicial Magistrate First Class as illegal by holding that so far as accused 2 to 10 are concerned, there was neither any allegation nor evidence of any cheating against them. As regard Mangal Das accused, he held that his act of not keeping the promise of selling the land in accordance with the agreement to the petitioner and further selling it to Rooda is simply breach of contract and had given rise only to a civil liability. It is in these circumstances that Kalamudincomplainant has filed this Revision Petition against the order of the Additional Sessions Judge for quashing the same and for maintaining the order of the learned Judicial Magistrate First Class, Gurgaon, dated September 25, 1987.

This petition succeeds on the short ground that revision is not compent under Section 397 of the Code of Criminal Procedure against an interlocutory order. The order of the learned Judicial Magistrate First Class, summoning the accusedrespondents is certainly an interlocutory order. The learned Judicial Magistrate, Gurgaon, vide his order, dated September 25, 1987 had summoned the accused (respondents in this petition) under Section 420, Indian Penal Code. Section 397 of the Code of Criminal Procedure provides that the High Court or any Sessions Judge may call for and examine the record of any proceedings before any inferior Criminal Court situate within its or his local jurisdiction for the purposes 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. Section 397(2) thereof mandates that the powers of revision conferred by subSection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings.

The summoning order passed by the learned Judicial Magistrate was certainly an interim order and thus, no Revision Petition was competent before the Additional Sessions Judge, under the Code of Criminal Procedure. The order of the learned Additional Sessions Judge, thus, is liable to be quashed being without jurisdiction. If any authority is required, K.M. Mathew v. State of Kerala and another, 1992(1) Recent Criminal Reports 232 (SC) may be referred to with advantage. It will, however, be useful to reproduce the following observations for ready reference :

"..... Section 204 of the Code of indicates that the proceedings before the Magistrate commence upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.

It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. 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.

Consequently, this petition is allowed, the order of the Additional Sessions Judge, Gurgaon, dated July 18, 1989 is set aside and the case is remanded back to the Judicial Magistrate First Class, Gurgaon, for proceedings with the case in accordance with law. It will, however, be open to the accusedrespondents to plead before the Magistrate that the process against them ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried.