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K.M. Mathew Vs. State of Kerala - 1992 GLJ 3779 and SC Rastogi Vs. Smt. Renu Kalra - 2002 GLJ 2259.

5. Mr. Raman Gandhi, learned counsel for the respondent submitted that the learned M.M. has no power to revoke and review the order for issuance of process as per section 204 Cr.P.C., Counsel further contended that after the issuance of the process the Magistrate has to proceed according to Sections 254 and 255 of the Cr.P.C. Counsel submitted that after issuance of the summons the Magistrate ought to have permitted the parties to lead evidence and should not have discharged or acquitted the accused petitioners in the said complaint case. Counsel stated that the order passed by the learned M.M. was in violation and contrary to the law laid down by the Apex Court in Adalat Prasad Vs. Roop Lal Jindal (2004) 7 SCC 338 and Subramanium Sethuraman Vs. State of Maharashtra 2005 SCC (Crl.) 242. The counsel further urged that as per the scheme of the Crl. P.C. the parties are permitted to lead evidence after the issuance of summons by the Magistrate and the accused cannot be discharged or acquitted at any intermediary stage without permitting parties to lead any evidence in a complaint case, therefore, the order passed by the Ld. ASJ is not suffering from any infirmity. Counsel further submitted that even otherwise the present petition is not maintainable in view of Section 259 of Cr.P.C. Counsel contended that the learned M.M. ignoring the contents of the complaint and the material allegations constituting the offence under Section 406/420/120B IPC had issued the process only under Section 138 of the N.I.Act. The counsel further maintained that the Ld. M.M. erred in acquitting the accused without trying them for offences under Section 406/420/120-B IPC as per the procedure in the code for the warrant cases. The counsel relied on following judgments:

10 . Be that as it may, none of the provisions regarding summons case speak of any possibility of discharge except under Section 258, which does not apply to the present case. From bare perusal of the aforementioned Section 251, CrPC it is clear that this provision does not empower the Magistrate to discharge the accused facing trial in summons cases. In this regard in Subramanium Sethuraman (supra), the Hon‟ble Apex Court observed as under:

"The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case."

12 . The object of the revisional jurisdiction is to confer upon superior' Criminal Courts a supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law or irregularity of procedure and similar infirmities. Therefore, in order to correct the error of law, since the decision of the Magistrate is clearly in violation of the law laid down in the code and the law declared by the Hon‟ble Apex Court in Subramanium Sethuraman (supra), therefore, clearly the remedy against such an order is filing of a revision petition and not an appeal. In this regard, this court in Asia Metal Corporation (HUF) (Supra) observed as under:

"5. I have considered the submissions made by the learned Counsel for the parties and find that in view of the Supreme Court's decision in the case of Subramanium Sethuraman (supra), there is no question of discharge under Chapter XX insofar as a summons-case which has been instituted upon a complaint is concerned. Chapter XX pertains to trial of summons-cases by Magistrates. Section 251 pertains to the substance of accusation to be stated. It provides that when in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defense to make, but it shall not be necessary to frame a formal charge. Prior to the stage of Section 251 of the Code, the procedure that is prescribed is governed by Chapter XV of the Code starting from Section 200. Section 200 of the Code pertains to the examination of the complainant. Section 203 deals with the dismissal of complaint. In particular, it provides that if, after considering the submissions on Oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. In a sense Section 203 marks the culmination of the pre-summoning stage. It either results in the dismissal of the complaint or it results in the advancement to the next stage, that is, Chapter XVI. Section 204 is the first section in Chapter XVI. Under Section 204 it is made clear that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding in a summons- case, he shall issue summons for the attendance of the accused. The issuance of summons for attendance marks the end of the pre-summoning stage and the case then has to be dealt with under Chapter XX which deals with trial of summons-cases by Magistrates. At this stage, the Magistrate is not required to further apply his mind as to whether the case has to be proceeded with or not against the accused/summoned persons. All that is required under Section 251 of the Code is that the substance of the accusation is to be stated and the accused is to be asked whether he pleads guilty or has any defense to make and it is also not necessary to frame a formal charge. None of the provisions of Chapter XX speak of any possibility of discharge except under Section 258 which does not apply to the present case. The Supreme Court's decision in the case of Subramanium Sethuraman (supra) is quite clear on this aspect and has categorically held that the case involving a summons-case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. What has happened in the present case is that after summons were issued, at the stage of proceedings under Section 251 of the Code, the learned Metropolitan Magistrate has discharged all the accused except Yogesh Gupta. There is no provision of discharge at the stage of Section 251 of the Code and thereforee, this is clearly contrary to the provisions of the Code as also to the law as declared by the Supreme Court in the case of Subramanium Sethuraman (supra). This is an error which needs to be corrected and thereforee, these revision petitions would be maintainable. The question of the discharge amounting to an acquittal is of no consequence because discharge itself is not permissible under the law. thereforee, the consideration of the interpretation of Section 258 as was done in the case of RPG Transmission (I) Ltd. (supra) is not at all necessary.