Rajasthan High Court - Jaipur
Fariyad vs State Of Rajasthan on 11 November, 2011
S.B.CR.Misc.pet. No.1132/2010 (Fariyad Vs. State) Date of order : 11.11.2011 HON'BLE DR.JUSTICE MEENA V.GOMBER. Mr.Sanjay Mehrishi, for the petitioner. Mr.Mohd.Rahil Kalam for Mr.N.A.Naqvi, Public Prosecutor for State.
None present for respondent no.2.
Nobody appears on behalf of respondent no.2. However, power on behalf of respondent no.2 has already been filed by Mr.Rajesh Mootha, Advocate.
By way of this petition, the petitioner has assailed the order dated 18.5.2010 passed in criminal revision no.20/09 by learned Addl. Sessions Judge, Ramganj Mandi (District Kota) whereby the order of Judicial Magistrate, Ramganj Mandi dated 21.8.09 taking cognizance against the petitioner for offence under Sections 368 and 376 IPC has been upheld and the revision petition was dismissed vide impugned order in the following terms:
""???????? ???????? ?????? ????? ???????????? ?? ?????? ???????? ?? ??????? ?????? ?????? ???? ???? ?? ???????? ?? ????? ?? ???? ??? ??? ??????? ???????? ?? ???? ?????? ??.?.?? ?? ?????? ?? ???? ???.
Learned counsel for the petitioner placed reliance on the principle of law laid down by Apex Court in the matter of Dhariwal Tobacco Products Ltd and ors. Vs. State of Maharashtra and anr.-(2009)2 SCC 370, and submitted that the order passed by learned Judicial Magistrate does not fall in the category of interlocutory order. It was contended that in Adalat Prasad Vs. Rooplal Jindal- 2004(7) SCC,338, the issue decided was that when a process is issued, the provisions of Section 482 Cr.P.C can be resorted to, as the issue with regard to availability of appellate or revisional jurisdiction, did not fall for consideration.
I have gone through the case law cited by learned counsel for petitioner.
In para 6 of Dhariwal's case (supra), Apex court in clear words stated that issuance of summons byMagistrate, taking cognizance, is not an interlocutory order. Para 6 reads as under:
"Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code...... available."
The Apex court in para 9 of the said judgment, referred to its earlier judgment in the case of Amar Nath Vs. State of Haryana (1977)4 SCC, 137 and quoted para 10 of Amar Nath's case (supra), which reads as under:
"9. In Amar Nath Vs. State of Haryana it was opined: (SCC p.144, para 10) "10. ....... It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of their's was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised by the High Court under sub-sections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded, was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistate's passing an order prima facie in a mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment an which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial."
In the light of settled law as dicussed above in this regard, the impugned order passed by the revisional court cannot be said to be sustainable because the order passed by Judicial Magistate with regard to taking of cognizance and issuing of process against petitioner, cannot be said to be interlocutary. Hence the order impugned is set aside and the matter is remanded back to the revisional court to decide afresh on other aspects also.
This petition stands disposed.
(Dr.MEENA V.GOMBER),J.
sandeep Item No.