Delhi District Court
Amit Sabharwal & Ors. vs . Gopal Krishan Pandey on 7 August, 2010
Amit Sabharwal & Ors. vs. Gopal Krishan Pandey
IN THE COURT OF SH. INDER JEET SINGH, ADDL. SESSION JUDGE02,
WEST DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of -
Criminal Revision No. 25/31.07.2010
1. Shri Amit Sabharwal,
S/o Shri V.K. Sabharwal,
R/o J3, Vikaspuri, New Delhi.
2. Shri Lalit Dahiya,
S/o Shri Surinder,
R/o J3, Vikaspuri, New Delhi.
.....Petitioners
Versus
Shri GopaL Krishan Pandey,
S/o Shri R.R. Pandey,
R/o Flat No. 130, Veenus Apartments,
Inder Enclave, Paschim Vihar, New Delhi.
.....Respondent
07.08.2010
ORDER
Present : Proxy counsel for counsel for petitioners.
Respondent has not been summoned.
Criminal Revision No. 25/2010 Page 1 of 7 Amit Sabharwal & Ors. vs. Gopal Krishan Pandey A short question has arisen "whether the revision petition is maintainable against order of summoning dated 04.08.2009, while summoning the petitioners under section 341, 342 and 348 IPC", passed by the Court of Metropolitan Magistrate, Delhi.
1. The petitioners (Amit Sabarwal and Lalit Dahiya) have been summoned as accused persons in a complaint under the title Gopal Krishan Pandey vs. (1) Mr. Sabarwal, (2) Amit Chand, (3) Lalit Dahiya, on the allegations when complainant visited the office of Mr. Sabarwal on 04.11.2008, to inquire about the outstanding amount, his credit cards of City Bank were forcibly taken out of his pocket and swiped against the outstanding, the complainant was also compelled to put his signatures and photographs on the said endorsements. The petitioners were summoned by the Court of Metropolitan Magistrate, Delhi, under the aforementioned heads of IPC, for their appearance on 08.07.2010, Mr. Lalit Dahiya appeared, but the other accused was exempted from appearance on that day.
2. The petitioners are aggrieved that the impugned order is liable to be setaside and the petitioners are required to be discharged consequent to setting aside of the order, as neither any Criminal Revision No. 25/2010 Page 2 of 7 Amit Sabharwal & Ors. vs. Gopal Krishan Pandey offence is made out to proceed further nor they should have been summoned by the Court of Sh. Ashish Aggarwal, Ld. Metropolitan Magistrate, Delhi.
3. The petitioners have been heard on the aforementioned short question and Ld. counsel Sh. Dharam Dev and Associates, Advocate, requests that revision under section 397 Cr.P.C is maintainable, since summoning order is not an interlocutory order and Subsection 2 of Section 397 Cr.P.C bars revision petition against interlocutory order. Reliance has been placed on Amarnath vs. State of Haryana 1977 AIR 2185 that summoning orders, discovery or production of documents falls in the category of interlocutory orders, there may be bar of revision petition, but not in respect of other orders. Further reliance has been placed on Madhu Limaye vs. State of Maharastra 1978 AIR 47, wherein the scope of Section 397(2) Cr.P.C and scope of Section 482 Cr.P.C was discussed. The petitioners also rely upon A.P. Aboobacker Musaliar vs. Inspector of Police, CBI 2006 Crl. L.J. 491, summoning order of addition of accused cannot be said to be pure and simple interlocutory order and revision petition is maintainable. In Rajendra Kumar Sitaram Pande vs. Uttam 1999(1) JCC (SC) 140, it was held that interlocutory order has not been defined in the Code of Criminal Procedure and it cannot Criminal Revision No. 25/2010 Page 3 of 7 Amit Sabharwal & Ors. vs. Gopal Krishan Pandey be said that an order directing issuance of process is a purely interlocutory, such order is held to be intermediate or quasifinal, therefore, revision jurisdiction could be exercised. Learned counsel for petitioners has also been heard on the point of law declared in Adalat Prasad vs. Rooplal Jindal 2004 AIR (SC) 4674 and Subramanium Sethuraman vs. State of Maharashtra Criminal Appeal No. 1253 of 2002 decided on 17.9.2004, Ld. counsel submits that revision petition is maintainable, since in the aforementioned cases, the issue was not directly involved, but it is an obiter dicta. Whereas, the ratio of law laid down in Rajender Kumar Sitaram Pande (Supra) holds a good law that the summoning order is not an interlocutory order, therefore, the petitioners' revision petition is maintainable. The notice may be issued to the respondent/complainant.
4. The contentions of petitioners has been assessed in the light of statutory provisions of law and the precedent and case law. The Trial Court record has also been perused. The following conclusions (A, B and C) are drawn (A1)order dated 04.08.2009 is a twin order, whereby the complainant/ respondent's request for registration of FIR was declined but it was ordered to lead evidence in terms of Section 200 Cr.P.C; (A2)the cases instituted as complaint cases, in respect of warrant trial cases, are governed by Chapter XXIX/Part B of Cr.P.C and Section 244 Cr.P.C, mandates about prosecution evidence and to hear the Criminal Revision No. 25/2010 Page 4 of 7 Amit Sabharwal & Ors. vs. Gopal Krishan Pandey prosecution and other side, after appearance of accused in the Court; it is commonly known as precharge evidence;
(A3)Section 245 of Cr.P.C, under the same Part B of Chapter XXIX, mandates as to when accused shall be discharged; and (A4)whereas, the stage of Section 244 Cr.P.C yet to arrive, since the petitioners are yet to appear before the Court and the complainant/ prosecution is yet to lead evidence after appearance of accused/ petitioners; therefore, the revision petition seeking discharge is pre mature.
(B1)now the scope of revision petition is taken, in a revision jurisdiction, the legality and correctness of order or record is to be adjudged by the Court of Sessions Judge;
(B2)the legality of the order is to be seen whether process of law prescribed in complaint cases have been followed or not, as per Trial Court record, after declining request for registration of FIR, the complainant was asked to lead evidence. Complainant's statement in terms Section 200 Cr.P.C was recorded and then it was followed by a process under section 204 Cr.P.C, to the respondents in complaint, inclusive of present petitioners; and (B3)in view of the factual position as well as the position of law, there is no illegality in following the procedure prescribed in Cr.P.C. (C1)the petitioners contend that the summoning order is not an interlocutory order and revision petition lies, since there is flaw in the summoning order, as from the contents of complaint, no offence under section 341/342/348 IPC is made out. The contentions are in respect of incorrectness in the findings arrived by the Metropolitan Magistrate, Delhi and the other view of not calling the petitioners was possible; (C2)whereas, the power of revision confers wide discretion to be exercised fairly by the revisional Court according to the exigencies of a case but it is too well settled that exercise is normally done only in exceptional cases where there is glaring defect in the procedure or there is Criminal Revision No. 25/2010 Page 5 of 7 Amit Sabharwal & Ors. vs. Gopal Krishan Pandey a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. It is not to be exercised only for correcting injustice or in other words, mere illegality is not to be corrected in exercise of the revisional power. The revisional Court is not expected to act as if it is hearing an appeal and its jurisdiction is not to be ordinarily invoked or used merely because the Magistrate has taken a wrong view of the law or even misappreciated the evidence on record. An order of the Magistrate should not be set aside simply because the revisional Court takes a different view on the evidence;
(C3)in Adalat Prasad Case (Supra) in paragraph 15, it was held that 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 and 202, 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 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;
(C4)in Subramanium Sethuraman (Supra), while considering the law laid down in Adalat Prasad, being extended to warrant trial cases, it was held in paragraphs 17 and 19 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, then process under section 204 Cr.P.C is issued, is the extraordinary remedy under section 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;
(C5)prima facie, the complaint and the statement of complainant/ respondent, reflects allegation of offence, therefore, it cannot be construed that the Magistrate issued the process in the absence of allegations in the complaint or in the preliminary evidence; and (C6)our Apex Court in Jagdish Ram vs. State of Rajasthan 2004 (4) SCC Criminal Revision No. 25/2010 Page 6 of 7 Amit Sabharwal & Ors. vs. Gopal Krishan Pandey 432, while discussing the scope of Sections 190(a), 200, 204 visavis Section 173 and 482 of Cr.P.C, in reference to the State case followed by a complaint case, held that at the initial stage of case either while taking cognizance or when process under section 204 Cr.P.C is initiated, the Court of Magistrate has only to decide whether there is sufficient ground to proceed and not whether there is sufficient ground for conviction.
5. From the analysis and conclusions (A, B and C) drawn in paragraph 4, above, neither there is stage of Section 245 Cr.P.C for discharge nor any illegality in following the procedure in complaint cases, nor it appears from the record that there does not exist allegations of offence, to construe/infer its incorrectness in forming the findings to proceeding further to summon the petitioners/accused. Hence, revision petition is not maintainable, notice is not required to issue to the respondent.
The revision petition is dismissed, being not maintainable. The Trial Court record be sent back along with the copy of judgment.
File is consigned to Record Room.
(Announced in the open (INDER JEET SINGH)
Court on 07 August, 2010)
th
ADDL. SESSION JUDGE
WEST DISTRICT, TIS HAZARI COURTS
DELHI
N
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