V. Selvam vs Shanthi Processing Unit Pvt. Ltd.

T. Sudanthiram, J.—The revision petitioner is the accused in C.C. No. 233 of 2009 on the file of learned Judicial Magistrate No. 1, Erode.

A private complaint for an offence u/s 138 of Negotiable Instrument Act was filed by the petitioner herein. After taking sworn statement, the

learned Magistrate issued summons to the accused who is the revision petitioner herein. Challenging the summons issued to the accused by the

learned Judicial Magistrate No. 1, Erode, the petitioner has preferred this revision.

The learned Counsel for the petitioner submits that though the entire cheque amount has been repaid to the complainant, the cheque return

memo was forged and the complaint has been filed against the accused.

The learned Counsel for the respondent submitted that this revision challenging the issuance of the summons is not maintainable and relied on the

decision of the Hon''ble Supreme Court reported in 2004 Cri.L.J. 4874 [Adalat Prasad v. Rooplal Jindal] and 2005 SCC (Crl) 242

[Subramanium Sethuraman v. State of Maharashtra and Anr.].

The learned Counsel for the petitioner submitted that the issuance of summons is not an interlocutory order and it can be challenged by way of

revision and also relied on the decision of the Hon''ble Supreme Court reported in V.C. Shukla Vs. State through C.B.I.,

This court considered the submissions and perused the decisions of the Hon''ble Supreme Court.

The complaint is filed by the respondent herein against the petitioner for an offence u/s 138 of Negotiable Instrument Act and the learned

Magistrate is proceeding the case as summons trial.

It is observed by the Hon''ble Supreme Court in 2004 Crl.L.J. 4874 [Adalat Prasad v. Rooplal Jindal] as follows:

But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to

proceed with the complaint he can issue process by way of summons u/s 204 of the Code. Therefore what is necessary or a condition precedent

for issuing process u/s 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry

contemplated u/s 202 that there is sufficient ground for proceeding with the complaint hence issue the process u/s 204 of the Code. In none of

these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage

of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in

Mathew''s case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but

that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of

the complaint arises u/s 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of

summons approaching the Court and making an application for dismissal of the complaint u/s 203 of the Code for a reconsideration of the material

available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

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 provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the

relief an aggrieved accused can obtain at that is not by invoking Section 203 of the Code because the Criminal Procedure Code 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 of Code.

Therefore, in our opinion the observation of this Court in the case of Mathew 1992 Crl.L.J. 3779 : 1992 AIR SCW 2666 : AIR 1992 SC

2206 that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the

Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this

Court in Mathews case that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay

down the correct law.

It is observed by the Hon''ble Supreme Court in 2005 SCC (Crl) 242 [Subramanium Sethuraman v. State of Maharashtra and Anr.] as follows:

Having considered the argument of the learned Counsel for the parties, we are of the opinion that the argument of the learned Counsel for the

appellant that the decision of this Court in Adalat Prasad Case requires reconsideration cannot be accepted. It is true that the case of Adalat

Prasad pertained to a warrant case whereas Mathew case pertained to a summons case. To this extent, there is some difference in the two cases,

but that it does not, in any manner, make the law laid down by this Court in Adalat Prasad case a bad law.

In Mathew case this Court held that consequent to a process issued u/s 204 by the Magistrate concerned it is open to the accused to enter

appearance and satisfy the court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation,

this Court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did

not provide for any such procedure for recalling the process, but supported its reasoning by holding that for such an act of judicial discretion no

specific provision is required.

In Adalat Prasad case this Court considered the said view of the Court in K.M. Mathew case and held that the issuance of process u/s 204 is

a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory

order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the Code for review of an order by the same

court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such

order. In that line of reasoning this Court in Adalat Prasad case held: (SCC p.343, para 16)

Therefore, we are of the opinion, that the view of this Court in Mathew case that no specific provision is required for recalling an erroneous order,

amounting to one without jurisdiction, does not lay down the correct law.

From the above, it is clear that the larger Bench of this Court in Adalat Prasad case did not accept the correctness of the law laid down by this

Court in K.M. Mathew case. Therefore, reliance on K.M. Mathew case by the learned Counsel appearing for the appellant cannot be accepted

not can the argument that Adalat Prasad case requires reconsideration be accepted.

The next challenge of the learned Counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons

case it is not open to the accused person to seek a discharge, cannot also be accepted. The case involving a summons case is covered by Chapter

XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in

our opinion the High Court was correct in coming to the conclusion that once the plea of the accused is recorded u/s 252 of the Code the

procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.

As observed by us in Adalat Prasad case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is

the extraordinary remedy u/s 482 of the Code 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.

It is observed by the Hon''ble Supreme Court in V.C. Shukla Vs. State through C.B.I., as follows:

One of the questions that arose was as to whether an interlocutory order which could be revised by the Sessions Judge, can be further revised

u/s 482 of the Code by the High Court because Section 397(3) permitted the power or revision to be exercised only by the High Court or the

Sessions Judge but not by both of them. The limitation contained in Section 397(3) runs as follows:

(3) If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by

the same person shall be entertained by the other of them.

Sub-section (3), however, does not limit at all the inherent power of the High Court contained in Section 482, as mentioned above. It merely curbs

the revisional power given to the High Court or the Sessions Judge u/s 397(1) of the Code. We need not dilate on this aspect because we are not

called upon to consider the interpretation of Section 397(3) of the Code, although in one of the cases cited before us this aspect has been gone

into and that is why we have indicated the same. Mr. Mridul contended that as the Special Courts Act has fully applied the procedure of the Code

to the trial of the offences by the Special Judge, the expression ''interlocutory order'' has been used exactly in the same sense as in Section 397(2).

In other words, the contention was that Section 11 of the Act is modelled on Section 397(2) of the Code by telescoping Sub-section (2) of the

said Section into Section 11(1) of the Act. In support of his contention reliance was placed in the case of Amar Nath and Others Vs. State of

Haryana and Another, and particularly to the following observations made by this Court.

It seems to us that the term ''interlocutory order'' in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or

artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of

the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an

interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the

basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases

passing order for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders

against which no revision would lie u/s 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights

of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional

jurisdiction of the High Court.

In that case, one of us (Fazal Ali, J.) was a party to the decision and spoke for the Court. It is no doubt true that this Court held that an order

summoning an accused was not an interlocutory order but being a matter of moment it decided an important aspect of the trial and was, therefore,

in a sense a final order which could be revised by the Sessions Judge or the High Court u/s 397 of the Code. The observations made by this

Court, however, have to be read in the light of the peculiar facts of the said case. What had happened in that case was that an FIR was lodged at

Police station Butana, District Karnal, @ page-SC 968 mentioning a number of accused persons as having participated in the occurrence. The

police, after holding investigation, submitted a charge-sheet against the other accused persons except the appellants before the Supreme Court

against whom a final report u/s 173 of the Code was given by the police. The report was placed before a Judicial Magistrate. First Class who,

after perusing the same accepted, the report and released the appellants. Thereafter the complainant filed a revision before the Additional Sessions

Judge against the order of the Judicial Magistrate releasing the appellants but the revision petition was dismissed by the Judge. Thereafter the

informant filed a regular complaint before the Judicial Magistrate against all the accused including the appellants. The learned Magistrate after

having examined the complaint found that no case against the appellants was established. A further revision was taken up before the Sessions

Judge who accepted the revision and directed further inquiry, on receipt of which the Magistrate issued summons to the appellants straightway.

Against this order the appellants went up in revision to the High Court which dismissed the petition in limine, obviously on the ground that the order

passed by the Magistrate was an interlocutory one. That is how the matter came up by special leave before this Court. It would thus be seen that

before the stage of trial of the case reached the appellants had been released by the Magistrate who accepted the final report that no case was

made against them. Even a complaint which was in the nature of a protect petition against the final report filed before the magistrate was also

dismissed. When the Magistrate issued summons in pursuance of an order of further inquiry by the Sessions Judge cognizance was taken against

the appellants who were ordered to be put on trial because the order summoning the appellants virtually amounted to asking the accused to face

the trial. It was in the background of these circumstances that this Court held that such an order being a matter of moment affecting important rights

of the parties, could not be said to be purely an interlocutory order. We have no doubt that the decision of this Court, referred to above, was

absolutely correct. In fact this part of the decision was endorsed by a later decision of this Court in the case of Madhu Limaye Vs. The State of

Maharashtra, .

As per the observation made by the Hon''ble Supreme Court in the decision of V.C. Shukla v. State through C.B.I. a discussion was made

about the case of Amar Nath and Others Vs. State of Haryana and Another, . A point which was decided in that case is that framing charge

against the accused is not an interlocutory order. Here the question arises is that whether the issuance of the summons to the accused itself could

be challenged. It is made clear by the Hon''ble Supreme Court that there is no provision to seek for discharge in a summons case.

As observed by the Hon''ble Supreme Court in 2004 Cri. L.J. 4874 [Adalat Prasad v. Rooplal Jindal] and in view of the decision rendered by

the Hon''ble Supreme Court in 2005 SCC (Crl) 242 [Subramanium Sethuraman v. State of Maharashtra and Anr.], this Court holds that a revision

filed by this petitioner challenging the issuance of summons to the accused is not maintainable.

Hence revision petition is dismissed. Consequently the connected Miscellaneous Petition is closed.