Gujarat High Court
Shri Shiv Shakti Industries Through ... vs State Of Gujarat on 7 February, 2023
NEUTRAL CITATION
R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8090 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 7267 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 7299 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 7318 of 2022
With
R/SPECIAL CRIMINAL APPLICATION NO. 8424 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
Circulate this judgment in the Subordinate Judiciary
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SHRI SHIV SHAKTI INDUSTRIES THROUGH RAJKUMAR RAMESH
CHANDRA AGRAWAL
Versus
STATE OF GUJARAT
================================================================
Appearance:
MS KSHAMA K THAKAR(11653) for the Applicant(s) No. 1
ABHISST K THAKER(7010) for the Respondent(s) No. 2
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 07/02/2023
ORAL JUDGMENT
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NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined
1. By way of this group of Special Criminal Applications under Articles 226 / 227 read with Section 482 of the Code of Criminal Procedure, 1973, the petitioner - original accused begs to challenge the order dated 6.6.2022 passed in Preliminary Hearing Application, by which the learned Additional Sessions Judge, Gandhinagar at Kalol rejected the condonation of delay application in Criminal Revision Application filed against an order dated 3.9.2020 passed by the learned Additional Chief Judicial Magistrate, Kalol under Section 204 of the Cr.P.C. in a Criminal Case filed under Section 138 of the Negotiable Instruments Act, holding that Revision is not maintainable.
1.1 Since the issue involved in this group of Special Criminal Applications is similar, the same are decided by this common order, treating Special Criminal Application No.8090 of 2022 as lead matter.
2. Short facts of the case can be stated as under :
2.1 The respondent No.2 herein - the original complainant has instituted a criminal complaint under the provisions of Section 138 of the Negotiable Instruments Act against the present petitioner being Criminal Case No.1043 of 2020 in the court of learned JMFC, Kalol, District - Gandhinagar.
2.2 The learned JMFC, Kalol, after verification, appears to have issued summons to the present petitioner under the provisions of Section 204 of the Cr.P.C.Page 2 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023
NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined 2.3 Being aggrieved and dissatisfied by the aforesaid, the present petitioner approached the learned Additional Sessions Judge, Gandhinagar at Kalol by way of Criminal Revision Application u/s 397 of the Cr.P.C. against an order of issuance of summons under Section 204 of the Cr.P.C. by the learned JMFC, Kalol. As the said Revision was beyond the period of limitation, the petitioner had preferred an application for condonation of delay along with said Criminal Revision Application.
2.4 It appears that since the said Revision, according to learned Additional Sessions Judge, was not maintainable, the said Application for condonation of delay was fixed for preliminary hearing.
2.5 The learned Additional Sessions Judge, after having heard the petitioner, came to the conclusion that the proposed Criminal Revision Application is not maintainable and thereby, vide order dated 6.6.2022, the application for condonation of delay came to be rejected with cost of Rs.5000/-.
2.6 Being aggrieved and dissatisfied by the aforesaid, the petitioner is before this Court by way of present Special Criminal Application.
3. I have heard Mr.Khsama K. Thakar, learned counsel for the petitioner, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State and Mr.Abhisst Page 3 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined Thaker, learned counsel for respondent No.2.
4. Mr.Khsama K. Thakar, learned counsel for the petitioner, submitted that the order passed by the learned Additional Sessions Judge is most illegal being passed without due application of mind on facts of the case as well as on law. Mr.Khsama Thakar further submitted that the learned Additional Sessions Judge has under misconception of law laid down by the Apex Court in the case of Adalat Prasad v. Ruplal Jindal & Others, reported in (2004) 7 SCC 338 and Subramanium Sethuraman v. State of Maharashtra & Another, reported in (2004) 13 SCC 324, held that the Revision under Section 397 of the Cr.P.C. is not maintainable and thereby, rejected the application for condonation of delay. According to learned counsel for the petitioner, in above- referred both the judgments, the Apex Court has not laid down the ratio of law which precludes Revision under Section 397 of the Cr.P.C. Mr.Khsama Thakar vehemently submitted that the ratio laid down by the Apex Court in Adalat Prasad (supra) and Subramanian Sethuraman (Supra), is with regard to review and/or recall of the order issuing summons by the Magistrate and not with regard to maintainability of Criminal Revision Application under Section 397 of the Cr.P.C. Therefore, according to Mr.Khsama Thakar, the learned Additional Sessions Judge has completely misunderstood the law laid down by the Apex Court and thus, the impugned order is sheer miscarriage of justice.
4.1 Mr.Khsama Thakar, learned counsel, further submitted Page 4 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined that the learned Additional Sessions Judge has mixed up the issue of power of review or recall as that of with Section 397 of the Cr.P.C. Mr.Khsama Thakar submitted that the power of review and/or recall cannot be equated with the provisions of Section 397 of the Cr.P.C.
4.2 Relying upon the provisions of Section 397 of the Cr.P.C., Mr.Khsama Thakar, learned counsel, submitted that the only bar as envisaged under sub-section (2) of Section 397 is the order impugned cannot be purely interlocutory. Mr.Khsama Thakar submitted that issuance of process under Section 204 cannot be termed as purely interlocutory and thereby, bar under sub-section (2) of Section 397 of Cr.P.C. would not be applicable and thus, the Revision against the said order is well maintainable.
4.3 To substantiate his contentions, Mr.Khsama Thakar, learned counsel, relied upon the following decisions :
(1) V. C. Shukla v. State through C.B.I, reported in 1980 AIR 1382.
(2) Madhu Limaye v. State of Maharashtra, reported in 1978 AIR 47 (3) Amar Nath v. State of Haryana, reported in 1977 AIR 2185.
4.4 By making above submissions, Mr.Khsama Thakar, urged this Court to allow the present Special Criminal Page 5 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined Application.
5. Per contra, Mr.Abhisst Thaker, learned counsel appearing for the respondent No.2, vehemently opposed the present petition contending, inter-alia, that the order passed by the learned Additional Sessions Judge is perfectly justified and thereby, no interference is required to be made. Mr.Thaker further submitted that the learned Additional Sessions Judge has rightly applied the ratio laid down by the Apex Court in the case of Adalat Prasad (supra) and Subramanian Sethuraman (Supra) and accordingly, the impugned order is well within four corners of law.
5.1 Mr.Abhisst Thaker, learned counsel, further submitted that the Criminal Revision Application under Section 397 would not be maintainable against the order issuing process under the provisions of Section 204 of the Cr.P.C., as being interlocutory in nature. Thus, according to Mr.Abhisst Thaker, learned counsel, bar of Section 397(2) of the Cr.P.C. would come into play and thereby Criminal Revision Application under Section 397 is not maintainable. Therefore, the only remedy which the petitioner can avail of is the petition under Section 482 of the Cr.P.C.
5.2 To substantiate his contentions, Mr.Abhisst Thaker, learned counsel, heavily relied upon the following judgments :
(1) Adalat Prasad v. Ruplal Jindal & Others, reported in (2004) 7 SCC 338 Page 6 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined (2) Subramanium Sethuraman v. State of Maharashtra & Another, reported in (2004) 13 SCC 324.
(3) Shaileshkumar Maganlal Mistry v. Memon Sabirbhai & Others., reported in 2006 SCC Online Guj. 180.
(4) Iris Computers Limited v. Askari Infotech Pvt. Ltd. & Others., reported in (2015) 14 SCC 399.
5.3 By making above submissions, Mr.Abhisst Thaker, learned counsel, urged this Court to dismiss the present Special Criminal Application.
6. I have heard the learned counsel appearing for the respective parties and have gone through the material produced on record in detail. No other and further submissions have been made by the learned counsel appearing for the respective parties, except what are stated herein-above.
7. Having heard the submissions and having gone through the material produced on record, the question that falls for consideration of this Court is whether the Criminal Revision Application under Section 397 of the Cr.P.C. is maintainable against the order issuing process under Section 204 of the Cr.P.C.?
8. So as to decide the aforesaid question, it would be apt to Page 7 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined refer to and rely upon the provisions of Section 397 of the Cr.P.C., which is reproduced as under :
"397. Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398.
(2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(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."
9. From bare reading of the aforesaid provisions, it is clear that the revisionary power of the Court is barred only against the interlocutory order. However, the words 'interlocutory order' has nowhere been defined in Cr.P.C. The only place where the words 'interlocutory order' have been mentioned, is sub-section (2) of Section 397 of the Cr.P.C. At this juncture, therefore, it would be relevant to take note of certain judicial pronouncements of the Apex Court of India, wherein scope and ambit of Section 397 of the Cr.P.C. came to be considered.
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10. In the case of Amar Nath & Ors. vs. State of Haryana, reported in 1978 (1) SCR 222, the Apex Court has held in Para.10 as under : .
"10. Applying the aforesaid tests, let us now see whether the order impugned in the instant case can be said to be an interlocutory order as held by the High Court. In the first place, so far as the appellants are concerned, the police had submitted its final report against them and they were released by the Judicial Magistrate. A revision against that order to the Additional Sessions Judge preferred by the complainant had failed. Thus the appellants, by virtue of the order of the Judicial Magistrate as affirmed by the Additional Sessions Judge acquired a valuable right of not being put on trial unless a proper order was made against them. Then came the complaint by respondent No. 2 before the Judicial Magistrate which was also dismissed on merits. The Sessions Judge in revision however, set aside the order dismissing the complaint and ordered further inquiry. The Magistrate on receiving the order of the Sessions Judge summoned the appellants straightway which meant that the appellants were to be put on trial. So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. 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 theirs was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightway was merely an interlocutory order which could not be revised by the High Court under sub- sections (1) and (2) of sec. 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 Magistrate in passing an order prima facie in sheer mechanical fashion without applying his mind. We are, therefore satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were Page 9 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined 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.
11. In the case of Madhu Limaye vs. the State of Maharashtra, reported in AIR 1978 SC 47, the Supreme Court considered the very issue whether the revision against the order taking cognizance or issuing process or framing charge was maintainable. Relevant observations are in Paragraph 12, 13 and 15 which read, thus;
"12. Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In volume 22 of the third edition of Halsbury's Laws of England at page 742, however, it has been stated in para 1606 :-
"... a Judgement or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required." In para 1607 it is said:
"In general a Judgement or order which determines the principle matter in question is termed "final"."
In para 1608 at pages 744 and 745 we find the words:
"An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final Judgement are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the Page 10 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined main dispute, may be conclusive as to the subordinate matter with which it deals."
13. In S. Kuppuswami Rao V/s. the King, 1947 FCR 180, Kania C. J., delivering the Judgement of the Court has referred to some English decisions at pages 185 and 186 (of FCR): Lord Esher M. R. said in Salaman V/s. Warner, (1891) 1 QB 734 "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory." To the same effect are the observations quoted from the judgments of Fry L. J. and Lopes L. J. Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court (at that time there was no bar like sec. 397 (2)) was not a 'final order" within the meaning of sec. 205 (1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words "interlocutory order" occurring in sec. 397 (2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our Judgement such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by sec. 397 (1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chap. XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. In what cases then the High Court will examine the legality or propriety of an order or the legality of any proceeding of an inferior Criminal Court? Is it circumscribed to examine only such proceeding which is brought for its Page 11 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined examination after the final determination and wherein no appeal lies? Such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, The River Wear Commissioners V/s. William Adamson, (1876-77) 2 AC 743 and R.M.D. Chamarbaugwalla V/s. The Union of India, 1957 SCR 930, that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the legislature. On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order - pure or simple.
Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-sec. (2) of sec. 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Art. 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of sec. 397 (2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-sec. (2) of sec. 397. In our opinion it must be taken to be an order of the type falling in the middle course.
15. In Amar Nath's case, reference has been made to the decision of this Court in Mohan Lal Magan Lal Thacker V/s. State of Gujarat, (1968) 2 SCR 685. After an enquiry u/s. 476 of the 1898 Code an order was made directing the filing of a complaint against the appellant. It was affirmed by the High Page 12 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined Court. The matter came to this Court on grant of a certificate under Art. 134 (1) (c). A question arose whether the order was a "final order" within the meaning of the said constitutional provision. Shelat J., delivering the Judgement on behalf of himself and two other learned Judges, said that it was a final order. The dissenting Judgement was given by Bachawat J., on behalf of himself and one other learned Judge. In the majority decision four tests were culled out from some English decisions. They are found enumerated at page 688 (of SCR). One of the tests is "If the order in question is reversed would the action have to go on?"
Applying that test to the facts of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceeding will go on. Applying the test of Kuppuswami's case, such an order will not be a final order. But applying the fourth test noted at page 688 in Mohan Lal's case 1968-2 SCR 685, it would be a final order. The real point of distinction, however, is to be found at page 693 (of SCR): in the Judgement of Shelat J. The passage runs thus :
"As observed in Ramesh V/s. Patni, (1966) 3 SCR 198, the finality of that order was not to be judged by correlating that order with the controversy in the complaint, viz., whether the appellant had committed the offence charged against him therein. The fact that the controversy still remained alive is irrelevant."
The majority view is based upon the distinction pointed out in the above passage and concluding that it is a final order within the meaning of Art. 134 (1) (c). While Bachawat J., said at page 695 (of SCR): "It is merely a preliminary step in the prosecution and therefore an interlocutory order." Even though there may be a scope for expressing different opinions apropos the nature of the order which was under
consideration in Mohan Lal's case, in our judgment, undoubtedly, an order directing the filing of a complaint after enquiry made under a provision of the 1973 Code, similar to sec. 476 of the 1898 Code will not be an interlocutory order within the meaning of sec. 397 (2). The order will be clearly revisable by the High Court. We must, however, hasten to add that the majority decision in Mohan Lal's case treats such an order as an order finally concluding Page 13 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined the enquiry started to find out whether a complaint should be lodged or not, taking the prosecution launched on the filing of the complaint as a separate proceeding. From that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in Mohan Lal's case. Yet, for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of sec. 397(2)."
12. In Rajendra Kumar Sitaram Pande & Ors vs Uttam & Anr. : (1999) CrLJ 1620 (SC) also, the Apex Court held in Para.4, 5 and 6 as under :
"4. In view of the rival submissions at the bar, the first question that arises for consideration is whether the order of the Magistrate, directing issuance of process can be said to be such an interlocutory order, which is not amenable to the revisional jurisdiction under Section 397 in view of the bar in sub-sec. (2) thereof. Sub-section (2) of Section 397 reads thus:
397(2) : The powers of revision conferred by sub- sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
5. The very object of conferring revisional jurisdiction upon the superior criminal Courts is to correct miscarriage of justice arising from misconception of law or irregularity of procedure.
6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under sub-sec.(2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amar Nath V/s.State of Page 14 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined Haryana (1978) 1 SCR 222 , this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an 'interlocutory order,' In Madhu Limaye V/s.State of Maharashtra (1978) 1 SCR 749 , a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding cannot be held to be an interlocutory order. In V. C. Shukla V/s. State (1980) 2 SCR 380 , this Court has 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-sec. (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. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-sec. (2) of Section 397 of the Code."
13. In Dhariwal Tobacco Products Ltd. & Ors. Vs. State of Maharashtra & Anr.; 2009 (64) ACC 962, the Apex Court again held that, "Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code."
14. In Urmila Devi v. Yudhvir Singh : (2013) 15 SCC 624, the Apex Court has held as under :
Page 15 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined "21. 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:
21.1 The order issued by the Magistrate deciding to summon an accused in exercise of his power Under Sections 200 to 204 Code of Criminal Procedure would be an order of intermediary or quasi-final in nature and not interlocutory in nature.
21.2 Since the said position viz., such an order is intermediary 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 order of a Magistrate deciding to issue process or summons to an accused in exercise of his power Under Section 200 to 204 Code of Criminal Procedure, can always be subject matter of challenge under the inherent jurisdiction of the High Court Under Section 482 Code of Criminal Procedure.
22. 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 v. State of Haryana and Anr. reported in : (2012) 11 SCC 252, the decisions in Madhu Limaye (supra), V.C. Shukla (supra), K.M. Mathew (supra), Rakesh Kumar Mishra v. State of Bihar and Ors. reported in : (2006) 1 SCC 557 ending with Rajendra Kumar Sitaram Pande (supra), was considered and by making specific reference to paragraph 6 of the judgment in Rajendra Kumar Sitaram Pande, this Court has held as under in paragraph 10: (Om Kumar Dhankar Case, SCC p.255)
10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction Under Section 397 Code of Criminal Procedure, 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.
23. Therefore, the position has now come to rest to the Page 16 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined effect that the revisional jurisdiction Under Section 397 Code of Criminal Procedure is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons."
15. From the above enunciation of law, it is crystal clear that issuance of process against the accused under Section 204 of Cr.P.C. cannot be termed as 'interlocutory order' within the scope and ambit of Section 397(2) of Cr.P.C., in my considered opinion, therefore, Revision against the order issuing summons is thereby maintainable.
16. In view of the aforesaid discussion, the learned Additional Sessions Judge, Gandhinagar at Kalol has committed a serious error in holding that Revision against the order issuing summons under Section 204 of the Cr.P.C. is not maintainable and the only remedy available is to move the High Court by invoking jurisdiction under Section 482 of the Cr.P.C. Thus, the order impugned passed by the learned Additional Sessions Judge, Gandhinagar at Kalol is contrary to the settled law, therefore, cannot be approved by this Court.
17. It appears that the learned Additional Sessions Judge, Gandhinagar at Kalol has mixed up two issues i.e. recall/review and the Revision. The judgments of the Apex Court relied upon by the learned Additional Sessions Judge, Gandhinagar at Kalol i.e. Adalat Prasad (supra) and Subramanian Sethuraman (Supra) are pertaining to the question whether the learned Magistrate can review and/or recall the order passed under Section 204 of the Cr.P.C. Those judgments nowhere state that Page 17 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined Revision under Section 397 of Cr.P.C. is not maintainable. The position of law as declared by the Apex Court in the case of Urmila Devi (supra), the aggrieved party can opt either revisionary jurisdiction under Section 397 of the Cr.P.C. or invoke inherent jurisdiction of this Court under Section 482 of the Cr.P.C. Therefore, the order impugned passed by the learned Additional Sessions Judge, Gandhinagar at Kalol holding that Revision under Section 397 of the Cr.P.C. is not tenable in the eye of law.
I answer the question accordingly.
18. At this stage, this Court has also taken note of the fact that the learned Additional Sessions Judge, Gandhinagar at Kalol has decided the maintainability of the Revision at the stage of delay condonation application. The aspect of maintainability of Revision is a question of merits which, in my opinion, the learned Additional Sessions Judge, Gandhinagar at Kalol could not have done so. The learned Additional Sessions Judge, Gandhinagar at Kalol was called upon to decide either to condone the delay or not to condone the delay and in that case, the learned Additional Sessions Judge, Gandhinagar at Kalol could not have gone into merits of the case i.e. the issue of maintainability. Thus, the learned Additional Sessions Judge, Gandhinagar at Kalol has also committed mistake by deciding the matter on its merits at the time when the delay condonation application was to be decided. Bare perusal of the impugned order would suggest that the learned Additional Sessions Judge, Gandhinagar at Kalol has not whisper anything Page 18 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023 NEUTRAL CITATION R/SCR.A/8090/2022 JUDGMENT DATED: 07/02/2023 undefined about the delay aspect. However, the application for condonation of delay came to be rejected only on the ground that the proposed Revision is not maintainable. Said approach of the learned Additional Sessions Judge, Gandhinagar at Kalol cannot be said to be correct approach. The learned Additional Sessions Judge, Gandhinagar at Kalol either should not have condoned the delay or after having condoned the delay, should have decided the matter on merits including its maintainability. Thus, in my view, on this additional count as well, the order impugned passed by the learned Additional Sessions Judge, Gandhinagar at Kalol is not tenable in eye of law and deserves to be quashed and set aside.
19. In the result, present group of Special Criminal Applications are hereby allowed. The order impugned dated 6.6.2022 passed by the learned Additional Sessions Judge, Gandhinagar at Kalol is hereby quashed and set aside with a direction to the concerned learned Additional Sessions Judge, Gandhinagar at Kalol to decide the application for condonation of delay afresh and then, pass necessary orders in accordance with law, by keeping in mind the law discussed herein-above.
(NIRAL R. MEHTA,J) V.J. SATWARA Page 19 of 19 Downloaded on : Sun Sep 17 21:33:52 IST 2023