Allahabad High Court
Ram Kumar Gupta And Others vs State Of U.P. & Another on 4 August, 2011
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- CRIMINAL MISC. WRIT PETITION No. - 14960 of 2011
Petitioner :- Ram Kumar Gupta And Others
Respondent :- State Of U.P. & Another
Petitioner Counsel :- Swetashwa Agarwal
Respondent Counsel :- Govt. Advocate
Hon'ble S.C. Agarwal,J.
Vakalatnama filed by Sri Ram Babu Sharma on behalf of the complainant is taken on record.
This writ petition has been filed with a prayer to quash the order dated 22.7.2011 passed by Sessions Judge, Bulandshahr in criminal revision no.294 of 2011 as well as order dated 25.11.2010 passed by Chief Judicial Magistrate, Bulandshahr in criminal case no.10765 of 2010 State Vs. Ram Kumar Gupta & others under sections 307, 323, 452, 504, 506, 120-B IPC, Police Station Kotwali Nagar, District Bulandshahr.
On the basis of application under section 156 (3) Cr.P.C. filed by respondent no.2, the matter was investigated by the police on the directions of the Magistrate and after investigation, final report was submitted by the police. On a protest petition filed by the complainant, the Magistrate rejected the final report and took cognizance of the offence under section 190 (1) (b) Cr.P.C. and summoned the petitioners to face trial under sections 307, 323, 452, 504, 506, 120-B IPC vide order dated 25.11.2010. Feeling aggrieved, the petitioners preferred criminal revision no.294 of 2011, which was dismissed by Sessions Judge, Bulandshahr on 22.7.2011 on the ground that in view of Raj Bali and others Vs. State of U.P. and another 2007 (2) JIC 384 (Alld) and Subramanium Sethuraman Vs. State of Maharashtra 2005 (51) ACC 684 (SC), it was held that the the revision against the summoning order was not maintainable and the only remedy available to the accused was to file an application under section 482 Cr.P.C. Therefore, the revision was dismissed as not maintainable.
Heard Sri Swetashwa Agarwal, learned counsel for the petitioners, Sri Ram Babu Sharma, learned counsel for the complainant and learned A.G.A. for the State.
Learned counsel for the petitioners submitted that summoning order is not an interlocutory order and revision against the same is not barred by section 397 (2) Cr.P.C. and learned Sessions Judge committed error of law in dismissing the revision as not maintainable.
Learned A.G.A. as well as learned counsel for the complainant expressed their agreement with the aforesaid legal position.
Although the Hon. Apex Court has held in Adalat Prasad Vs. Rooplal Jindal & others 2004 (50) ACC 924 and Subramanium Sethuraman Vs. State of Maharashtra (Supra) that the only remedy available to the accused against summoning order is to move the High Court in the proceeding under Section 482 Cr.P.C., but the matter of maintainability of revision against summoning order was not specifically raised before the Hon. Apex Court in those cases. The matter in issue in both the aforesaid cases before the Hon. Apex Court was as to whether the Magistrate is empowered to recall its summoning order. In that context the Hon. Apex Court had held that the Magistrate is not empowered to recall the order issuing process against the accused and the only remedy available to the accused against summoning order is to invoke the jurisdiction of the High Court in the proceeding under Section 482 Cr.P.C.
In Rajendra Kumar Sita Ram Pandey & others Vs. Uttam & another 1999 (38) ACC 438 the Hon. Apex Court has held that order issuing process for summoning the accused to face the trial is not an interlocutory order and therefore, the bar under sub Section (2) of Section 397 would not apply to such order.
In a recent decision in Dhariwal Tobaco Products Ltd. and others Vs. State of Maharashtra & another 2009 (64) ACC 962, the Hon. Apex Court held that the summoning order is not an interlocutory order within the meaning of Section 397 Cr.P.C.
In view of the above, it is established that summoning order is not an interlocutory order and the revision against the same would not be barred by section 397 (2) Cr.P.C. and learned Sessions Judge committed gross illegality in dismissing the revision as not maintainable.
In view of the aforesaid, the revision is allowed.
Impugned order dated 22.7.2011 passed by Sessions Judge, Bulandshahr is quashed.
Learned Sessions Judge is directed to dispose of the revision on merits after giving an opportunity of hearing to both the parties expeditiously. It is made clear that no observations are being made regarding merits of the case.
Order Date :- 4.8.2011
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