Sanjay Singh vs State Of U.P.
2017 Latest Caselaw 2746 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 10							A.F.R.
 

 
Case :- U/S 482/378/407 No. - 3596 of 2008
 

 
Applicant :- Sanjay Singh
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Santosh Srivastav
 
Counsel for Opposite Party :- Govt. Advocate,G.P.Mishra
 

 
Hon'ble Ajai Lamba,J.

(ORAL)

1.    The petition has been filed under Section 482 Cr.P.C. in challenge to order Annexure No.1 dated 5.9.2008. Vide the impugned order, the revision petition filed by the petitioner against order of summoning has been dismissed on the ground that such an order is interlocutory in nature within the meaning of Section 397 (2) Cr.P.C. therefore revision petition is not maintainable.

2. It appears that respondent no.2 Raja Ram filed an application under Section 156 (3) Cr.P.C. against the petitioners and two others vide Annexure No.5. The application was treated as complaint case bearing Case No.01/06/07, under Sections 419, 420 I.P.C., Police Station Tarabganj, District Gonda, by the court of Additional Civil Judge (JD), Gonda and statements of the witnesses and complainant were recorded.

3. The petitioners and two others were summoned vide order dated 19.4.2007 passed by Additional Civil Judge (JD), Gonda for committing offence under Sections 419 and 420 I.P.C. The order has been placed on record as Annexure No.6.

4. The accused being aggrieved by the order of summoning, preferred a revision petition before the court of Sessions at Gonda. The revision petition has been dismissed vide order Annexure No.7 dated 5.7.2007 passed by Sessions Judge, Gonda.

5. I have gone through the order. The revision petition

has been dismissed on the sole ground that order of summoning passed by the Magistrate dated 19.4.2007 (supra) is an interlocutory order and therefore in view of the law laid down by the Hon'ble Supreme Court of India in AIR 2004 SC 4711 : Subramanium Sethuraman Vs. State of Maharashtra and another, the revision petition is not maintainable.

6. It appears that the accused approached this Court under Section 482 Cr.P.C. This court vide order dated 30.7.2007 placed on record as Annexure No.8, set aside the order passed by revisional court dated 5.7.2007 and remanded the matter for deciding afresh.

It was specifically contended before this court that since question of maintainability of revision was not considered by the Hon'ble Supreme Court, therefore the revision is maintainable against summoning order. It is on the basis of such contention that the petition under Section 482 Cr.P.C. was allowed and the case was remanded to the revisional court for reconsideration.

This court held that the judgement of the Hon'ble Supreme Court in Subramanium Sethuraman's case (supra) essentially dealt with the issue of review of summoning order and therefore the ratio would not apply to the facts and circumstances of this case.

7. It appears that after remand the revisional court vide impugned order Annexure No.1 dated 5.9.2008 again took the same stand in law, that revision petition against order of summoning is not maintainable.

Perusal of the impugned order dated 5.9.2008 indicates that despite the observations of this court, revision petition of the accused petitioners has been again dismissed on the same analogy that order of summoning is an interlocutory order within the meaning of Section 397(2) Cr.P.C. and therefore is not maintainable.

8. Learned counsel for the petitioners has relied on 2013 (1) SCC (Crl.) 493 : Om Kumar Dhankar Vs. State of Haryana and others to contend that revision petition is maintainable. Issue in regard to maintainability of a revision petition against order of summoning has specifically been considered by the Hon'ble Supreme Court of India in case of Om Kumar Dhankar (supra). It has been argued that the revisional court has erred in law in holding that the order of summoning is an interlocutory order and therefore is liable to be set aside.

9. Learned counsel for the complainant respondent no.2 Shri Ganga Prasad Mishra, Advocate and Shri Faisal Ahmad Khan learned counsel for the State have not been able to dispute the legal position as agitated on behalf of the petitioners.

10. I have considered the contention of learned counsel.

11. The Hon'ble Supreme Court of India in Om Kumar Dhankar's case (supra) has held in following terms (relevant paragraphs 8, 9 and 10) :-

8. The counsel for the appellant is not present. However, from the special leave petition, it transpires that two questions have been raised, namely, (i) whether the Criminal Revision Petition against the order of summoning is maintainable? and (ii) whether in the facts and circumstances of the present case, the sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.) is required?

9. Insofar as the first question is concerned, it is concluded by a later decision of this Court in Rajendra Kumar Sitaram Pande v. Uttam. In Rajendra Kumar Sitaram Pande case (supra) this Court considered earlier decisions of this Court in Madhu Limaye v. State of Maharashtra, V.C. Shukla v. State, Amar Nath v. State of Haryana and K.M. Mathew v. State of Kerala and it was held as under : (Rajendra Kumar case, SCC p.137, para 6)

"6... 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-section (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."

10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 Cr.P.C. was available to respondent 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly."

(Emphasised by me)

12. From the above extracted portion, it is apparent that

the Hon'ble Supreme Court relied on Rajendra Kumar Sitaram Pande and others Vs. Uttam and another : (1999) 3 SCC 134. I have referred to the judgement of the Hon'ble Supreme Court rendered in Rajendra Kumar Sitaram Pande's case (supra). The Hon'ble Supreme Court of India in the said judgement has elaborated the reasons why an order of summoning is amenable to the revisional jurisdiction. The Hon'ble Supreme Court of India considered the law laid down in this context in earlier judgements in Amar Nath Vs. State of Haryana : (1977) 4 SCC 137 ; Madhu Limaye v. State of Maharashtra : (1977) 4 SCC 551 and V.C. Shukla v. State : 1980 Supp SCC 92. The following has been held in paragraphs 4, 5 and 6 in Rajendra Kumar Sitaram Pande's case (supra) :-

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-section (2) thereof. Sub-section (2) of Section 397 reads thus:

"397.(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."

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-section (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. State of Haryana 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. State of Maharashtra 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. State  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- section (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-section (2) of Section 397 of the Code."

(Emphasised by me)

13. In reference to the law laid down by the Hon'ble Supreme Court, as extracted above, it becomes evident that the Hon'ble Supreme Court of India has considered as to which order would be purely interim or temporary in nature not deciding the important rights or liabilities of the parties so as to come within the expression of ''interlocutory order' in Section 397 (2) Cr.P.C.

It has been held by the Hon'ble Supreme Court that the expression ''interlocutory order' in Section 397(2) Cr.P.C. 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'

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'.

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.

It is in view of the above noted discussion that it has been held that an order directing issuance of process is not an interlocutory order and therefore the bar under sub-section (2) of Section 397 Cr.P.C. would not apply.

14. I have considered the issue in context of the provisions of Section 397 Cr.P.C.. The provision confers power on the High Court or Sessions Court to call for and examine the record of any proceeding before any inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of such inferior court.

The order of summoning an accused to stand trial, has serious consequences for the accused i.e. to say that the accused shall have to appear as accused and face accusations and criminal proceedings. So far as the accused is concerned, order of summoning substantially affects his rights. If remedy of revision is not available to the accused against an order of summoning, he would have to face the proceedings even though such order might be incorrect, illegal or improper. The accused would have to face criminal proceedings even if the inferior court had committed irregularity. After passing order of summoning the proceedings enter the next phase.

15. In view of the law laid down and discussed above, it is incontestable that order of summoning is quasi-final so far as the accused is concerned and therefore revision is maintainable against such an order (in this case order of summoning was passed by the Magistrate dated 19.4.2007).

16. The revisional court in this case evidently has proceeded beyond jurisdiction in holding that the order of summoning is an interlocutory order and therefore revision petition is not maintainable. By such wrong interpretation of law, manifest injustice has been caused to the petitioner.

17. So as to secure the ends of justice, this court in its exercise of powers under Section 482 Cr.P.C. hereby quashes impugned order dated 5.9.2008, Annexure No.1. The petition is accordingly allowed.

18. The parties are directed to appear before the revisional court at Gonda on 8.8.2017. The revisional court is directed to hear the parties on merit and pass appropriate orders as warranted in facts and in law.

19. Let a copy of this order be sent to District & Sessions Judge, Gonda who shall allocate the matter for adjudication.

Order Date :- 28.7.2017

Shukla