Allahabad High Court
Rajendra Prasad Bajpai vs The State Of U.P on 21 July, 2014
Author: Ajai Lamba
Bench: Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1. This petition filed under Section 482 Cr.P.C. is directed against order of summoning dated 23.7.2013 issued in a complaint case bearing Crime Case No.2144 of 2012 under Sections 420, 466, 468, 471 I.P.C., Police Station Bilgram, District Hardoi titled 'Om Shanker Vs. Rajendra Prasad Bajpai and others pending in the court of Additional Chief Judicial Magistrate-I, Hardoi.
2. Learned counsel appearing for the petitioner Shri Rajendra Prasad Mishra, Advocate has very fairly drawn attention of the court towards judgement rendered by the Hon'ble Supreme Court : 2014 (1) Criminal Court Cases 284 (SC) (paras 22 to 24 ) titled 'Urmila Devi Vs. Yudhvir Singh, wherein it has been concluded that the revisional jurisdiction under Section 397 of the Code of Criminal Procedure, 1973 is available to the aggrieved party for challenging order of the magistrate, directing issuance of summons.
3. I have considered the legal position as pointed out by learned counsel. In Urmila Devi's case (supra), in paras 22 to 24 of the judgement, the following has been held :-
"22. Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande (supra) as well as the decision in K.K.Patel(supra), it will be in order to state and declare the legal position as under :
(i). The order issued by the Magistrate deciding to summon an accused in exercise of his power under Section 200 to 204 Cr.P.C. would be an order of intermediatory or quasifinal in nature and not interlocutory in nature.
(ii). 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.
(iii). Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Section 200 to 204 Cr.P.C., can always be subject matter of challenge under the inherent jurisdiction of the High Court under Section 482 Cr.P.C.
23. When we declare the above legal position without any ambiguity, we also wish to draw support to our above conclusion by referring to some of the subsequent decisions. In a recent decision of this Court in Om Kumar Dhankar Vs. State of Haryana and another reported in 2012(11) SCC 252, the decisions in Madhu Limaye (supra), V.C. Shukla (supra), K.M.Madhew (supra), Rakesh Kumar Mishra vs. State of Bihar and others reported in 2006 (1) Apex Court Judgements 325 (S.C.) : 2006 (1) Criminal Court Cases 636 (S.C.) : 2006 (1) SCC 557 ending with Rajendra Kumar Sitaram Pandey (supra), was considered and by making specific reference to paragraph 6 of the judgement in Rajendra Kumar Sitaram, this Court has held as under in paragraph 10 :
"10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 Cr.P.C., was available to the Respondent No.2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly."
24. Therefore, the position has now come to rest to the effect that the revisional jurisdiction under Section 397 Cr.P.C. is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons." (Emphasis supplied by me)
4. Perusal of the above extracted portion from the judgment rendered by the Hon'ble Supreme Court of India in Urmila Devi's case (supra), it transpires that while referring to law laid down in Om Kumar Dhankar Vs. State of Haryana and another : 2012(11) SCC 252 ; Madhu Limaye Vs. State of Maharashtra : 1977 (4) SCC 551 ; V.C. Shukla Vs. State through C.B.I. :1980(2) SCR 380 ; K.M.Mathew Vs. State of Kerala and another : 1992(1) SCC 217 ; Rakesh Kumar Mishra vs. State of Bihar and others : 2006(1)Apex Court Judgements 325 (S.C.) : 2006 (1) Criminal Court Cases 636 (S.C.) : 2006 (1) SCC 557 ; K.K.Patel and another Vs. State of Gujrat and another : 2000(2) Apex Court Journal 204 (S.C.) : AIR 2000 SC 3346 ; ending with Rajendra Kumar Sitaram Pandey and others Vs. Uttam and another : 1999(2) Apex Court Journal : 07 (S.C.) : AIR 1999 SC 1028, it has been held that an order passed by Magistrate issuing summons asking the accused to stand trial would be an order quasi final in nature, and not interlocutory. Under the circumstances, quasi final order is amenable to revisional jurisdiction under Section 397 of Cr.P.C.
5. Legal position, thus, has been settled to say that the revisional jurisdiction under Section 397 Cr.P.C. is available to the aggrieved party for challenging the order of the Magistrate directing issuance of summons.
6. This court further considers it appropriate to add that in case a revision petition is filed before the court of Sessions, the court of Sessions has the advantage of getting custody of the file during the course of the day, examining it for the purposes of adjudicating the revision petition, and returning it back to the trial magistrate, as ordinarily trial court and revisional/sessions court, are located at the same place. The revisional court thus has the benefit/advantage of referring to the trial court file/record to register its observations in the order.
7. In case the file is required to be referred by the High Court, it is tedious to first summon the trial magistrate's file and then return it. By virtue of summoning the file, virtually the trial is stayed, although the High Court might not have the intention to stay the proceedings.
8. This Court also has the advantage of considering the observations made by the revisional court/ sessions court, in case at the first instance revision petition is filed before the court of sessions.
9. Further, this Court can be approached in its jurisdiction under Section 482 Cr.P.C. after the revision petition is decided, if such occasion arises and circumstances warrant filing of such a petition.
10. Considering totality of the facts and circumstances of the case, this petition is disposed of with liberty to the petitioner to file a revision petition before the court of sessions against the order of summoning. In case the revision petition is filed within three weeks from today alongwith an application under Limitation Act, 1963, the revisional court shall take into account the fact that this petition had been filed under erroneous legal advice.
21.7.2014 Shukla.