Ashok Mehta vs State Of Maharashtra And Ors.
2005 Latest Caselaw 272 Bom

ORDER

V.K. Tahilramani, J.

1. Heard the learned counsel for the petitioner original accused and the learned counsel for the respondent No. 2 i.e. original complainant. Rule. By consent, rule made returnable forthwith.

2. The petitioner is seeking quashing of the order dated 22-11-04 passed by the Chief Judicial Magistrate, Nagpur in Criminal Case No. 258/04. By the said order the learned Chief Judicial Magistrate issued process against the petitioner under Sections 166 and 167 of Indian Penal Code.

3. As in my opinion the petitioner had an efficacious alternative remedy i.e. of preferring a revision before the Sessions Court against the said order, I was not inclined to entertain the present petition specially in view of the observations of the Constitution Bench of the Supreme Court in the case of Thansingh Nathmal v. The Superintendent of Taxes, Dhubri, , wherein it is observed that when there is a alternative efficacious remedy a writ petition ought not to be entertained.

4. After expressing this opinion the learned counsel for the petitioner has pointed out recent decision of Supreme Court in the case of Adalat Prasad v. Rooplal Jindal, (2004) 4 MLJ 274 : (2004 Cri LJ 4874). The learned counsel has submitted that the said decision is by a 3-Judge Bench and in the said decision it is observed in para 16 that in a case where process has been issued, in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Criminal Procedure Code. Thus the learned counsel has submitted that in view of the observations of the Supreme Court the petitioner has rightly approached the High Court for relief as both the lower Courts i.e. the Magistrate or Sessions Court cannot grant relief,

5. The learned counsel has also placed reliance on another decision of the Supreme Court in the case of Subramanium Sethuraman v. State of Maharashtra, (2005) 1 MLJ 626 : (2004 Cri LJ 4609). The learned counsel has submitted that in the said .decision, the Supreme Court has held that in a case where process is issued the only course available to the aggrieved person is to challenge the issuance of process by way of petition under Section 482 of the Criminal Procedure Code.

6. I have carefully perused the said decisions. In the case of Adalat Prasad the question which came up for consideration before the Supreme Court was whether the view of the Supreme Court in K.M. Mathew v. State of Kerala, , wherein it was held that if the Magistrate had issued process he could also recall such an order was a correct view or not. Thus the question which fell for consideration before the Supreme Court in the case of Adalat Prasad (2004 Cri LJ 4874) was whether a Magistrate could recall process. It was the onfy question which fell for consideration. It is to be noted thai it was the only question raised, argued, deliberated and decided by the Supreme Court. While deciding the case of Adalat Prasad the Supreme Court was not considering the question whether a revision could be preferred against the order of Magistrate issuing process. In fact, in the case of Adalat Prasad after the observations in para 16 stated above, in para 18 the Supreme Court has observed thus :

"18. In view of our above conclusion, it is not necessary for us to go into the question whether order issuing a process amounts to an interim order or not."

Thus, in the case of Adalat Prasad, the Supreme Court has not decided the issue whether a revision against such an order is maintainable or not as the said issue was not raised.

7. As far as the decision in the case of Subramanium Sethuraman is concerned the question which fell for consideration before the Supreme Court was whether the decision in the case of Adalat Prasad (2004 Cri LJ 4874) would require reconsideration as in the case of Adalat Prasad the Court proceeded on the basis that the case was a summons case but in reality it was a warrant case covered by Chapter XIX of the Criminal Procedure Code. That was the question which arose for consideration. Again the issue for consideration before the Supreme Court was whether the 'Magistrate' could recall the order issuing process in a summons case as well as warrant case. The Supreme Court held that it would not make any difference whether a case was a summons case or a warrant case and in both the cases the Magistrate did not have the power to recall process. In the case of Subramanium Sethuraman (2004 Cri LJ 4609), the observations in the case of Adalat Prasad have been quoted and it was held that the fact that it was a warrant case and K.M. Mathew (1992 Cri LJ 3779) pertained to summons case would not make the law laid down in Adalat Prasad's case bad law. Thus in both cases the question which arose for consideration was whether the 'Magistrate' could recall process which was issued by him. The sole question which arose for consideration in the case of Adalat Prasad was, whether the view in the case of K. M. Mathew that the Magistrate could recall process issued by him was correct or not. In the said case the question did not arise for consideration whether a revision could be preferred before the Sessions Court against the order issuing process. In Adalat Prasad's case as is clear from para 18, the said question is left open. However, in the case of Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134 : (1999 Cri LJ 1620), the main question before the Supreme Court was whether the order of Magistrate directing the issuance of process is an interlocutory order or not. The Supreme Court held that the order of Magistrate directing issuance of process is not an interlocutory order and the revisional jurisdiction under Section 397 could be exercised against the same. In view of the above observations it is clear that the aggrieved person against whom process has been issued can prefer a revision against the order of the Magistrate issuing process. Thus it is clear that the petitioner can prefer a revision against the order issuing process. In view of the fact that the petitioner has an efficacious alternate remedy of preferring revision against the order issuing process I am not inclined to entertain the present writ petition.

Liberty is granted to the petitioner to prefer necessary revision before the concerned Sessions Court. In order to enable the peti tioner to prefer the necessary revision stay is granted in respect of Criminal Case No. 258/04 for a period of five weeks. Petitioner is granted exemption in respect of personal appearance before the trial Court till the disposal of revision. Learned counsel for the petitioner undertakes to supply latest address of the petitioner before the revisional Court. Rule discharged.