Delhi District Court
Pankaj Jain vs Directorate Of Enforcement on 25 February, 2023
IN THE COURT OF VINAY KUMAR GUPTA,
PRINCIPAL DISTRICT & SESSIONS JUDGE-CUM-SPECIAL
JUDGE (PC ACT) CBI, ROUSE AVENUE DISTRICT
COURTS, NEW DELHI
Crl.Rev. No. 26/2022
CNR No. DLCT11-000542-2022
Pankaj Jain ... Petitioner
Versus
Directorate of Enforcement ...Respondent
ORDER
Dated : 25.02.2023
1. The petitioner Pankaj Jain filed the present revision petition u/s. 397 Cr.P.C. on 02.09.2022 challenging the order dated 06.04.2022 and the order dated 28.05.2022 of the court of Ld. ACMM-II, in complaint case no. 04/2022 arising out of ECIR/DLZO-I/43/2021, under Section 200 Cr.P.C. and 174 IPC, Directorate of Enforcement.
2. Vide order dated 06.04.2022, cognizance on the complaint was taken by the court and the petitioner Pankaj Jain was ordered to be summoned. And vide order dated 28.05.2022, an application filed by one Sanjay Jain, was disposed off and fresh summons was ordered to be issued against the petitioner Pankaj Jain.
3. It is stated that the petitioner is ordinarily resident of UK and not ordinarily resident of India since 2011, and no notice or summon Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 1 of 13 issued by the respondent ED has been lawfully served upon him though he has extended full and complete cooperation to the respondent as he has joined the proceedings before the adjudicating authority.
4. It has also been stated that the petitioner has communicated with the respondent through e-mail on a number of occasions directly as well as through his solicitor in UK.
5. It has further been stated that the petitioner does not reside in India and the summoning order dated 06.04.2022 and 28.05.2022 have been premised on the service at the residential address in India as valid service of notices and summons, whereas the respondent is fully aware of the place of ordinary residence of the petitioner in UK. And as such respondent has failed to lawfully serve any summons upon the petitioner.
6. It has also been stated that there was no material before the court to take cognizance of the offence and issue summons against the petitioner, as the petitioners has never been disobedient or otherwise failed to cooperate with the respondent.
7. Neither Cr.P.C. nor PMLA is stated to have extra-territorial - beyond India - application and summons/notice cannot be issued / served on the petitioner as per processes applicable to the domestic service of summons.
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8. The respondent filed reply to the petition wherein it is stated that the passport of the petitioner valid upto 02.06.2024 finds his residential address at Greater Kailash, New Delhi where the summons are being served. The address of the petitioner in official documents is also that of Delhi and furnished his Delhi address only before various statutory authority where he has been rightly served.
9. The petitioner has not furnished any document showing his address to be that of UK.
10. The cognizance has been taken by the court and summons issued to the petitioner after considering the materials placed for the court.
11. The order dated 28.05.2022 has been passed on the application of Sanjay Jain who is the real brother of the petitioner and there is a meeting of minds of both the brothers.
12. The present petition is stated to be an abuse of the process of the court.
13. The Ld. Prosecutor for the respondent also raised a preliminary issue stating that the order dated 06.04.2022 is a summoning order against the petitioner in a complaint case which is an interlocutory order and revision against the same is not maintainable, and requested for a hearing on this preliminary issue.
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14. The Ld. Sr. Counsel submitted his no objection to the hearing on the preliminary issue and accordingly arguments have been addressed on the issue.
15. The order dated 06.04.2022 is an order by which cognizance of the offence has been taken by the court and the petitioner has been summoned as an accused in the complaint.
16. Vide order dated 28.05.2022, application of Sanjay Jain who is stated to be the real broker of the petitioner has been dismissed and fresh summons has been ordered to be issued against the petitioner.
17. It is submitted by the Ld. Prosecutor for ED that the summoning order dated 06.04.2022 is an interlocutory order which is not revisable as per section 397(2) Cr.P.C. and the revision petition is not maintainable.
18. It has further been submitted that a revision petition is not the proper remedy against an interlocutory order and laid down in Girish Kumar Suneja v. CBI (2017) 14 SCC 809 and in Adalat Prasad v. Rooplal Jindal (2004) 7SCC 338, it has been held that the remedy against a summoning order is available under Section 482 Cr.PC. and the order dated 06.04.2022 is not a revisable order being an interlocutory order.
19. The learned Prosecutor has relied on the decision in :
i. Adalat Prasad v Rooplal Jindal & Ors. (2004) 7 SCC 338 decided on 25.08.2004;
Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 4 of 13 ii. Subramanium Sethuraman v State of Maharashtra & another (2004) 13 SCC 324 decided on 17.09.2004;
iii. Rajbali and Others v State of U.P. & another 2007 SCC online ALL 2051 : (2007) 58 ACC 758 decided on 04.05.2007;
iv. Madhu Limaye v The State of Maharashtra (1977) 4 SCC 551 decided on 31.10.1977;
v. Girish Kumar Suneja v Central Bureau of Investigation (2017) 14 SCC 809 decided on 13.07.2017 in support of his arguments.
20. On the other hand, the Ld. Sr. Counsel has submitted that the summoning order cannot be said to be purely interlocutory order so as to bar the revision jurisdiction of the court and it is an inter- mediate order touching upon the rights of the accused and if reversed will terminate the proceedings against the petitioner resulting in a final order in his favour and as such, it is not an interlocutory order but an intermediate order as laid down in Girish Kumar Suneja (supra), and revision against the same is maintainable.
21. It has further been submitted that in Urmila Devi v Yudhveer Singh (2013) 15 SCC 624, it has been observed that in Adalat Prasad (supra) though it has been held that in the absence of any review power or inherent power of the subordinate court there was no jurisdiction or power vested in magistrate to review or recall its order deciding to issue summons, and the remedy is by invoking Section 482 Cr.P.C., the question whether such an order could be subject matter of challenge by way of revision u/s. 397 Cr.P.C. was Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 5 of 13 never considered, and as such reliance on the decision in Adalat Prasad (supra) is misplaced.
22. The learned Senior Counsel for the petitioner relied on the decisions in :
i. Madhu Limaye v State of Maharashtra (1977) 4 SCC 551 decided on 31.10.1997;
ii. Amarnath v State of Haryana (1977) 4 SCC 137 decided on 27.09.1977;
iii. Rajendra Kumar Sitaram Pandey & Ors. v Uttam & Ors.
(1999) 3 SCC 134;
iv. Om Kumar Dhankar v State of Haryana (2012) 11 SCC 252;
v. Urmila Devi v Yudhveer Singh (2013) 15 SCC 624;
vi. Girish Kumar Suneja v CBI (2017) 14 SCC 809; and vii. State of Gujarat v Afroz Mohhamed Hasanfatta (2019) 2020 SCC 539.
in support of his arguments.
23. The meaning of the term 'interlocutory order' has been explained in Amarnath v State of Haryana (1977) 4 SCC 137 and it has been held 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 purely interim or temporary nature which do Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 6 of 13 not decide or touch the important rights or the liabilities of the parties. ...."
24. In Adalat Prasad v Rooplal Jindal & Ors. (supra) it has been categorically laid down in para 15 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, 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 the Code.
25. The same has been reiterated in Subramanium Sethuraman v State of Maharashtra & another (supra) wherein it has been observed:
....that the issuance of process under Section 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 Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 7 of 13 absence of any specific provision to recall such order.
26. And the same view has been taken by the Allahabad High Court in Rajbali and Others v State of U.P. & another (supra) wherein relying on Adalat Prasad (supra) and Subramanium Sethuraman (supra), it has been held :
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.
27. And again in Girish Kumar Suneja v Central Bureau of Investigation (supra), the Supreme Court has held that in respect of interlocutory order the court cannot exercise its revision jurisdiction.
28. It has been held in Amarnath v State of Haryana (supra) :
Any order which substantially effects the right of the accused, or decides certain rights of the parties cannot be said to be interlocutory order so as to bar a revision against that order, because that would be against the very object which form the basis for insertion of this particular provision in Section 397 of the 1973 code....orders which are matters of moment and which effect 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 court.
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29. In Madhu Limaye v The State of Maharashtra (1977) 4 SCC 551, it has been held that an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceedings cannot be said to be an interlocutory order.
30. In V.C. Shukla v State (1980) Supp. SCC 92, it has been held that the term "interlocutory order" used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. 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.
31. In Girish Kumar Suneja v CBI (2017) 14 SCC 809, it has been held :
There are three categories of order that a court can pass - final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 9 of 13 court can exercise its revision jurisdiction since it is not an interlocutory order.
32. The decision in Madhu Limaye v State of Maharashtra lays down the principle that an intermediate order is one which is interlocutory in nature and when reversed it has an effect of terminating the proceedings and thereby resulting in a final order. On the same lines, it is held in Girish Kumar Suneja v CBI (supra) that an intermediate order is one which is passed in a certain way, the proceedings would terminate and if passed in another way, the proceedings would continue and the two examples of such orders are taking cognizance of an offence and summoning the accused; and an order for framing of charges, which are prima facie interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour.
33. In K.K. Patel v State of Gujarat (2000) 6 SCC 195, laid down the test in para 11 as :
The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code.
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34. In Urmila Devi v Yudhveer Singh (2013) 15 SCC 624, the Supreme Court stated and declared the legal position in para 21 as under :
21. Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande, as well as the decision in K.K. Patel, 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 CrPC 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 Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party. 21.3. Such an in roder of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Section 200 to 204 CrPC, can always be the subject-matter of challenge under the inherent jurisdiction of the High Court under Section 482 CrPC.
35. The issue in present case if tested as per the legal position laid down in :
i) K.K. Patel v State of Gujarat; Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 11 of 13 ii) Urmila Devi v Yudhveer Singh; and iii) Girish Kumar Suneja v CBI.
it may be said that the summoning order is an intermediate order, amenable to revision under Section 397 CrPC.
And if considered as per legal position, laid down in :
i) Adalat Prasad v. Rooplal Jindal;
ii)Subramanium Sethuraman v State of Maharashtra & another it is an interlocutory order, not amenable to revision under Section 397 Cr.P.C. but only under the inherent power of the High Court under Section 482 Cr.P.C.
37. The decision in K.K. Patel (supra) and Urmila Devi (supra) are decisions of 2 judges bench, and the decision in Girish Kumar Suneja (Supra) an order on framing the charge was under challenge.
38. At the same time, the decision in Adalat Prasad (supra) and Subramanium Sethuraman (supra) are the decisions of larger bench given by three judges bench and in both the cases, issuance of process under Section 204 Cr.P.C. was under challenge.
39. Though the decision in Adalat Prasad (supra) has not described the nature of order issuing process - whether interim/interlocutory or otherwise, the decision in Subramanium Sethuraman (supra), it has been observed that the issuance of process under Section 204 Cr.P.C. is a preliminary step in the stage of Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 12 of 13 trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage is an interlocutory order. And that being so, the said two decisions govern the question and have to be followed.
40. In view of the aforesaid discussion and referring with advantage the decision in Adalat Prasad (supra) and Subramanium Sethuraman (supra), since the challenge in the present revision petition is the order issuing process dated 06.04.2022/28.05.2022, the same being interlocutory orders, are not amenable to revision, the present revision petition is not maintainable and liable to be dismissed.
41. Accordingly, the revision petition is dismissed being not maintainable.
42. File be consigned to the Record Room.
ANNOUNCED IN OPEN COURT ON 25th DAY OF FEBRUARY, 2022 (Vinay Kumar Gupta) Principal District & Sessions Judge-cum-
Special Judge (PC Act) (CBI) Rouse Avenue District Court New Delhi/25.02.2023 Crl. Rev. 26/2022 Pankaj Jain v Directorate of Enforcement Page no. 13 of 13