Prof. Manjunatha B.P. vs Prof. V.J. Pyati and State of Karnataka

Subhash B. Adi, J.—This revision is against the order passed in Criminal Revision Petition No. 79/2005 on the file of the Sessions Judge, Udupi.

A private complaint was filed by the respondent in P.C.No.893/2000 which is registered as C.C. No. 1705/2005 for an offence punishable under Sections 384, 385, 389, 467, 468, 506(II) R/W Section 151 of IPC.

The Trial Court based on the averments of the complaint took cognizance and registered the case. Thereafter, on the basis of the sworn statement and the material produced found prima facie case and ordered for issue of summons u/s 204 of Cr.P.C.

The said order was called in question by the respondent in Criminal Revision Petition No. 79/2005 before the learned Sessions Judge u/s 397 R/W 401 of Cr.P.C. The learned Sessions Judge by the order in question partly allowed the revision petition. In so far as accused No. 1 is concerned, the issue of process in respect of offence punishable under Sections 384, 385, 389, 465, 467 of IPC is set aside and further directed the Trial Court to proceed with the matter for the offence punishable u/s 506(2) of the IPC. It is this order is called in question by the complainant.

Sri Hegede Hudlamane, learned Counsel appearing for the petitioner submitted that, the revision petition filed by the accused No. 1 is not maintainable. He submitted that, the order passed by the learned Magistrate is the interlocutory order and the interlocutory orders are not amenable to the jurisdiction of the revisional Court. In this regard, he referred to Section 397 of Cr.P.C. and submitted that. Section 397(2) clearly reveals that, revision is not maintainable against the interlocutory order. In support of his case, he relied on a judgment of the Apex Court reported in AIR 2004 SC 4711 in the matter of Subramanium Sethuraman v. State of Maharashtra and Anr. and submitted that, the Apex Court in the said case relied on the earlier decision reported in Adalat Prasad Vs. Rooplal Jindal and Others, where the Apex Court over-ruled the decision reported in K.M. Mathew Vs. State of Kerala and another, and submitted that, the Apex Court has held that, the remedy against issue of process u/s 204 of Cr.P.C. is only by way of Section 482 petition and not by way of a revision.

Learned Counsel appearing for the respondent submitted that, the revision is maintainable. If the interlocutory order touches the rights of the parties, then the revisional Court has jurisdiction to entertain a revision. In support of his submission he relied on the decision reported in Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another, and submitted that, the Apex Court relying on the Mathew''s case has observed that, the jurisdictional Magistrate has power to recall the order of issue of summons. He further submitted that, the discretion in exercise of revisional jurisdiction should be within the four corners of Section 397 of Cr.P.C., whenever there has been miscarriage of justice in whatever manner. He further submitted that, the interlocutory orders referred to u/s 397(2) which are purely interim and temporary in nature, do not touches the rights or the liabilities of the parties and in order to prevent the delay in the trial, the revisional jurisdiction is not conferred against the said interlocutory order. But in cases where interlocutory orders touches the rights and liabilities of the parties, such orders cannot be termed as interlocutory orders and they substantially effect the rights of the parties. He further submitted that, issuance of process substantially touches the rights of the accused and in such circumstances, as observed by the Apex Court, the revisional Court can exercise power u/s 397 of Cr.P.C.

The only point that arises for consideration in this revision petition is:

As to whether issue of process in exercise of power u/s 204 of Cr.P.C. by the learned Magistrate is- amenable to the jurisdiction of the revisional Court?

Interlocutory order if substantially touches the rights of the parties and has an effect of final decision against the party, certainly such orders cannot be termed as interlocutory orders. However, the issuance of process u/s 204 of Cr.P.C. cannot be termed as an order substantially touches the rights of the accused and partake the character of the final decision. In as much as the accused, has a right to participate in the proceedings and has a right to question the issuance of process u/s 482 of Cr.P.C. The Apex Court in the Mathew''s case has held that, the Magistrate can recall the issuance of summons after the appearance of the accused. This view was accepted in the case of Rajendra Kumar Sitaram Pande. However, the Apex Court in the matter of Subramanium Sethuraman''s case considered the Mathew''s case and the Adalat Prasad''s case and found that, the view expressed in Mathew''s case is not accepted by the Apex Court in Adalat Prasad''s case. In the decision of the Subramanium''s case, the Apex Court accepted the view taken by the Adalat Prasad''s case and held that, the learned Magistrate has no power to recall the order of issuance of summons. At para 19 of the Subramanium''s case, the Apex Court has observed as under:

Therefore, legitimately the appellant should raise this issue to he decided at Vie trial. Be that as it may, we cannot prevent an accused person from taking recourse to a remedy which is available in law, in Adalat Prasad''s case we have held that for an aggrieved person the only course available to challenge the issuance of process u/s 204 of the Code is by way of a petition u/s 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition u/s 482, we cannot also deny him the statutory right available to him in law.

The Apex Court has clearly observed that, in case of issuance of summons, the only remedy available is by way of filing a petition u/s 482. If that is so, revision entertained by the revisional Court, in my opinion is not proper.

Accordingly, this revision petition is allowed. The order of the learned Sessions Judge in C.C. No. 1705/2005 is set aside. The respondent is at liberty to file appropriate petition in accordance with law.