Rajbali and Others vs State of U.P.and Another

R.N. Misra, J.—This revision has been preferred by the revisionists against the order dated 19102005, passed by Judicial Magistrate I, Azamgarh in Criminal Case No. 1442 of 2005; Arvind Kumar Singh v. Rajbali and Ors., by which, the revisionists have been summoned for trial for the offences, punishable under Sections 147, 323, 504, 506 I.P.C.

I have heard learned Counsels for the parties and perused the material on record.

Without going into merits of the case, I confine myself to the point of jurisdiction, whether revision against the summoning order is maintainable?.

From the records, it appears that a complaint was filed by opposite party No. 2 Arvind Kumar Singh against the revisionists with the allegation that on 2232005 at about 6.00 a.m., the accusedrevisionists entered his house, abused, threatened, assaulted him and damaged his properties. Learned Magistrate recorded the statement of complainant, under Section 200 Cr.P.C. He further made enquiry, under Section 202 Cr.P.C. and recorded the evidence given by the complainant and ultimately after considering the materials on record, found that primafacie case under Sections 147, 323, 504, 506 I.P.C was made out against the accused persons and summoned them for trial vide impugned order.

The enquiry under Section 202 Cr.P.C. is extremely limited only to ascertainment of truth or falsehood of the allegations made in the complaint. The Court is only required to see whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. The legal position on the maintainability of the revision against the summoning order is crystal clear. In the case of Adalat Prasad v. Rooplal Jindal and Ors., 2005(1) JIC 164 (SC) : 2004 (7) SCC 338, the three Judges Bench of Hon''ble Supreme Court has clearly held that the revision against the summoning order is not maintainable and only remedy available to the aggrieved person lies under Section 482 Cr.P.C. In that case, the case law given in K.M. Maithew v. State of Kerala, 1992 JIC 212 (SC) : 1992 (1) SCC 217, was overruled. The following observations made by the Hon''ble Apex Court are relevant for decision of the present case before me :

�It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202 Cr.P.C., the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 Cr.P.C. which does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 Cr.P.C.

The summoning order is passed under Section 204 Cr.P.C., meaning thereby the provisions of Section 203 Cr.P.C. have already over. The Criminal Procedure Code has not provided any power of review to the Court passing summoning order and prohibits interference at interlocutory stage.

Said view was again affirmed by the same strength of Judges of Hon''ble Apex Court in the case of Subramanium Sethuraman v. State of Maharashtra, 2005(1) JIC 122 (SC) : 2004 (4) Crimes 78 : AIR 2004 SC 4711. In the said case, the Hon''ble Apex Court has observed that the Magistrate has no power to review his earlier order due to bar under Section 362 Cr.P.C. In that case, the accused were summoned for trial, they preferred revision before the learned Sessions Judge, which was allowed. The writ under Article 227 of Constitution of India was filed before High Court at Bombay, which was allowed and it was held that since the plea of accused had already been recorded, the Magistrate had no power to recall process and discharge the accused. The appellant preferred S.L.P. before Hon''ble Apex Court, which was later on withdrawn, but again the matter went up there. The following observations were made by the Hon''ble Apex Court:

�As observed by us in Adalat Prasad''s case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 Cr.P.C. and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. In Adalat Prasad''s case, we have held that for an aggrieved person, the only course available to challenge the issuance of process under Section 204 Cr.P.C is by way of a petition under Section 482 Cr.P.C.

In the case of Kamal Krishan v. State of U.P., 2005 (3) JIC 686 (All), the Allahabad High Court has also taken same view relying upon the case of Subramanium Sethuraman referred to above.

In view of may above discussions, I have come to the conclusion that this revision is not maintainable and is accordingly dismissed.

Revision dismissed.