HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- CRIMINAL MISC. WRIT PETITION No. - 16336 of 2011 Petitioner :- Ashok Kumar Bhadauria Respondent :- State Of U.P. And Anr. Petitioner Counsel :- Raj Kuma Khanna Respondent Counsel :- Govt. Advocate Hon'ble S.C. Agarwal,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
No notice is issued to private respondent in view of the order proposed to be passed today, however, liberty is reserved for private respondent to apply for variation or modification of this order if he feels so aggrieved.
This writ petition has been filed with a prayer to quash the impugned order dated 4.8.2011 passed by Incharge Sessions Judge, Kanpur Nagar in criminal revision no.301 of 2011 as well as order dated 27.10.2010 passed by A.C.M.M., Court No.8, Kanpur Nagar in complaint case no.1442 of 2010.
The protest petition filed by the petitioner against the final report was treated as complaint by the Magistrate and after recording the statements of complainant and witnesses under sections 200 & 202 Cr.P.C., summoned the respondent no.2 to face trial under sections 324, 504 IPC. The revision filed by the petitioner has been dismissed by learned Sessions Judge on the ground that in view of Adalat Prasad Vs. Roop Lal Jindal (2004) 7 SCC 338, the revision was not maintainable.
In Adalat Prasad's case, the question before the Apex Court was that whether Magistrate could review its summoning order or not. In that context, the Apex Court held that the only remedy available to the accused was to file an application u/s 482 Cr.P.C. The question as to whether the revision against a summoning order is maintainable or not was not involved in the case of Adalat Prasad.
In a subsequent decision in Dhariwal Tobacco Products Ltd. and others v. State of Maharashtra and another 2009 (64) ACC 962, the Apex Court has held that a summoning order passed by the Magistrate was not an interlocutory order within the meaning of section 397 Cr.P.C. Therefore, learned Sessions Judge committed error of law in holding the revision to be not maintainable and, therefore, the revisional order is liable to be quashed.
Writ petition is allowed.
Impugned order dated 4.8.2011 passed by Incharge Sessions Judge, Kanpur Nagar is set-aside and learned Sessions Judge is directed to decide the revision on merits after giving an opportunity of hearing to both the parties concerned.
Order Date :- 24.8.2011 ss