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Judgment
A.N. Venugopal Gowda, J.—These petitions arise out of separate but identical order/s passed by the Presiding Officer, Fast Track Court, Udupi, whereby, Criminal Revision Petition/s filed under Section 397 read with Section 399 of Criminal Procedure Code, 1973 C. Code" for short), seeking to set aside the order/s passed by the III Addl. Civil Judge (Jr.Dn.) and JMFC, Udupi, taking cognizance and directing the accused to appear in the respective case/s were dismissed.
Respondent No. 1, Manipal Co-Operative Bank Limited, filed complaint/s, under Section 2(d) and Section 200 of the Code, alleging commission of offence punishable under Section 138 of Negotiable Instruments Act, 1881 by the petitioner/s. The complaint/s set out the facts and allegations with regard to the alleged dishonour of the cheque/s issued by the petitioner/s, towards the alleged discharge of legally enforceable debt/s.
On receipt of the complaint/s and the affidavit/s filed i.e., in lieu of sworn statement/s of the complainant, upon perusal of the respective complaint/s and the documents annexed thereto, learned Magistrate being of the view, that prima facie, there is sufficient material to issue process against the accused for the alleged offence, directed issue of process against the accused person/s i.e., the petitioners herein. Aggrieved by the said orders, Criminal Revision Petition/s were filed. The same having been dismissed as not maintained, these petitions were filed assailing the correctness of the impugned orders.
Sri. Nishith Kumar Shetty, learned advocate, by relying upon the decision in Urmila Devi Vs. Yudhvir Singh, (2013) 14 JT 262 : (2013) 4 RCR(Criminal) 899 , contended that the Court below has committed serious error in dismissing the Revision Petition/s, as not maintainable. He submitted that the question relating to the maintainability of the criminal revision against the order taking cognizance being no longer res integra, as it is concluded by the said authoritative pronouncement, the impugned order/s being illegal, are liable to be set aside and the Court below directed to decide the revision petition/s on their merit.
Sri Devi Prasad Shetty, learned advocate, on the other hand, contended that the revision petition/s filed by the petitioner/s being not maintainable, as the order/s assailed therein, passed by the learned Magistrate, being merely interlocutory order/s, are not amenable to the jurisdiction of Revision Court. He submitted that the order/s passed by the learned Magistrate, impugned in the revision petition/s filed before the Court below, being interlocutory orders, the bar under Section 397(2) of the Code, is attracted. He relied upon the decision in Subramanium Sethuraman Vs. State of Maharashtra and Another, (2004) 4 BC 598 : (2004) CriLJ 4609 : (2004) 4 CTC 613 : (2004) 8 JT 220 : (2004) 7 SCALE 733 : (2004) 13 SCC 324 : (2005) 1 UJ 55 : (2004) AIRSCW 5326 : (2004) 6 Supreme 662 , and submitted that the Apex Court, in the said case, relied upon the earlier decision rendered in Adalat Prasad Vs. Rooplal Jindal and Others, (2004) 4 CTC 608 : (2004) 7 JT 243 : (2004) 7 SCALE 137 : (2004) 7 SCC 338 : (2004) 2 UJ 1342 , where, the Apex Court, overruled the decision in the case of K.M. Mathew Vs. State of Kerala and another, AIR 1992 SC 2206 : (1992) CriLJ 3779 : (1991) 3 Crimes 820 : (1992) 57 ELT 370 : (1991) 4 JT 464 : (1992) 102 PLR 35 : (1991) 2 SCALE 1045 : (1992) 1 SCC 217 : (1991) 2 SCR 364 Supp and held, that remedy against issue of process under Section 204 of Code, is only by way of seeking redressal before the High Court, in exercise of power under Section 482 of Cr.P.C. Learned advocate made submission in support of the impugned order/s, by also placing reliance on an order passed in the case of Prof. Manjunatha B.P. Vs. Prof. V.J. Pyati and State of Karnataka, (2009) CriLJ 209 : (2008) ILR (Kar) 3710 : (2008) 5 KarLJ 723 : (2008) 3 KCCR 2063 .
Revision petition/s filed before the Court below have not been decided on merit. They have been dismissed as not maintainable on the ground that the order passed directing issuance of process is an interlocutory order and hence, cannot be questioned by invoking Section 397 read with Section 399 of the Code.
Keeping in view the rival contentions and the findings recorded in the impugned order/s, the sole point for consideration is "Whether an order passed directing issuance of process in exercise of power under Section 204 of Cr.P.C. is amenable to the jurisdiction of revisional Court?
In Om Kr. Dhankar Vs. State of Haryana and Another, (2012) 2 CTC 871 : (2012) 167 PLR 120 : (2012) 3 SCALE 363 : (2012) 11 SCC 252 : (2013) 1 SCC(L&S) 47 : (2012) AIRSCW 1821 , the first question considered was, whether the criminal revision petition against an order of summoning is maintainable? The question was answered as follows:
Insofar as the first question is concerned, it is concluded by a later decision of this Court in the case of Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another, AIR 1999 SC 1028 : (1999) CriLJ 1620 : (1999) 1 Crimes 88 : (1999) 1 JT 426 : (1999) 1 SCALE 402 : (1999) 3 SCC 134 : (1999) 1 SCR 580 : (1999) 1 UJ 595 : (1999) AIRSCW 660 : (1999) 2 Supreme 63 . In Rajendra Kumar Sitaram Pande case (supra) this Court considered earlier decisions of this Court in the cases of Madhu Limaye Vs. The State of Maharashtra, AIR 1978 SC 47 : (1978) CriLJ 165 : (1977) 4 SCC 551 : (1978) SCC(Cri) 10 : (1978) 1 SCR 749 : (1977) 9 UJ 733 , V.C. Shukla Vs. State through C.B.I., AIR 1980 SC 962 : (1980) CriLJ 690 : (1980) SCC(Cri) 695 : (1980) 2 SCR 380 , Amar Nath and Others Vs. State of Haryana and Another, AIR 1977 SC 2185 : (1977) CriLJ 1891 : (1977) 79 PLR 695 : (1977) 4 SCC 137 : (1978) 1 SCR 222 and K.M. Mathew Vs. State of Kerala and another, AIR 1992 SC 2206 : (1992) CriLJ 3779 : (1991) 3 Crimes 820 : (1992) 57 ELT 370 : (1991) 4 JT 464 : (1992) 102 PLR 35 : (1991) 2 SCALE 1045 : (1992) 1 SCC 217 : (1991) 2 SCR 364 Supp and it was held as under:-
"6. ...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...."
In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 Cr.P.C. was available to the respondent No. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly."
(emphasis is supplied)
In Urmila Devi''s case (supra), a contention was raised that an order of the Magistrate issuing summons to the accused being interim/intermediate order, attracting the bar under S. 397(2) of the Code, revision petition filed against such order is not maintainable and that the aggrieved party can only approach the High Court under S. 482 Cr.P.C. Apex Court, having regard to the several decisions which had dealt with the question as to whether the order issuing summons can be construed as an interim order or an intermediate order on the one hand and what is the scope of challenging such an order by way of revision under S. 397 Cr.P.C. and by arriving at the conclusion that it has become imperative to give an authoritative pronouncement to reconcile the decisions, which had dealt with the jurisdictional issue raised under S. 397 Cr.P.C. and the nature of the order and also as to how to construe the order passed by the Magistrate, while deciding to issue summons to a party under S. 202 of the Code, after survey of all the earlier decisions, the legal position was declared as follows:
" 21. Having regard to the said categorical position sated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another, AIR 1999 SC 1028 : (1999) CriLJ 1620 : (1999) 1 Crimes 88 : (1999) 1 JT 426 : (1999) 1 SCALE 402 : (1999) 3 SCC 134 : (1999) 1 SCR 580 : (1999) 1 UJ 595 : (1999) AIRSCW 660 : (1999) 2 Supreme 63 , as well as the decision in K.K. Patel and Another Vs. State of Gujarat and Another, AIR 2000 SC 3346 : (2000) CriLJ 4592 : (2000) 7 JT 246 : (2000) 4 SCALE 572 : (2000) 6 SCC 195 : (2000) 1 SCR 312 Supp : (2000) AIRSCW 3564 : (2000) 4 Supreme 160 , it will be in order to state and declare the legal position as under:
21.1 The order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 Cr.P.C. would be an order of intermediatory or quasi final in nature and not interlocutory in nature.
21.2 Since the said position viz. such an order is intermediatory order or quasi-final order, the revisionary jurisdiction provided under S. 397, either with the District Court or with the High Court can be worked out by the aggrieved party.
21.3 Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Sections 200 to 204 Cr.P.C. can always be subject-matter of challenge under the inherent jurisdiction of the High Court under S. 482 Cr.P.C.
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Therefore, the position has now come to rest to the effect that the revisional jurisdiction under S. 394 Cr.P.C. is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons."
(emphasis is supplied)
In the impugned order/s, the Court below has held, the revision petition/s filed as not maintainable, by only referring to the decisions in Adalath Prasad Vs. Rooplal Jindal and Subramanyam Sethuraman Vs. State of Maharashtra. Since the Apex Court has considered both the decisions in the case of Urmila Devi (supra) and has set at rest the position of law to the effect that the revisional jurisdiction under S. 397 Cr.P.C. is available to the aggrieved party, in challenging the order of the Magistrate directing issuance of summons, the impugned order/s being wholly erroneous, are liable to be quashed.
A learned Single Judge of this Court, in Prof. Manjunatha (supra), by noticing the decisions rendered by the Apex Court in Adalath Prasad and Subramanyam Sethuraman (supra), has held, that in case of issuance of summons, the only remedy available is by way of filing a petition under S. 482 Cr.P.C. and thus, the revision petition entertained by the revisional court, is not proper. In my view, in view of the decision in Urmila Devi (supra), the ratio of Prof. Manjunatha (supra), is no longer a good law.
The law relating to availability of revisional remedy under S. 397 of Cr.P.C. to an aggrieved party i.e., to challenge the order of the Magistrate directing issuance of summons, is no longer res integra, on account of the authoritative pronouncement in Urmila Devi''s case (supra). The point raised supra, for consideration is answered in the affirmative.
In the result, these petitions are allowed and the impugned order/s passed by the learned Presiding Officer, Fast Track Court, Udupi are quashed. Consequently, criminal revision petition/s stand restored for consideration and decision by the Court below, with expedition and on or before 31.08.2015.
Both the parties are directed to appear before the Sessions Judge, Udupi on 08.06.2014 and received further orders.
All other contentions of both parties are left open.