Calcutta High Court (Appellete Side)
Jashdeep Singh Sood & Anr vs Viva Sonthalia & Ors on 24 November, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 1127 of 2019
Jashdeep Singh Sood & Anr.
Vs
Viva Sonthalia & Ors.
For the Petitioners : Mr. Dhiraj Trivedi.
Mr. Sunil Gupta.
For the Opposite Parties : None.
Hearing concluded on : 20.11.2023
Judgment on : 24.11.2023
2
Shampa Dutt (Paul), J.:
1. The present revision has been preferred praying for quashing of the
proceedings as against the petitioner of complaint Case No. C-0075104 of
2016 (previously numbered as 4696 of 2012) under Section 138 read
with Section 141 of the Negotiable Instruments Act, 1881 as amended
pending before the learned Metropolitan Magistrate 19th Court at
Calcutta and order dated 01.07.2016 and order dated 18.01.2017 passed
by the learned Metropolitan Magistrate 19th Court at Calcutta in
Complaint Case No. C-0075104 of 2016 (previously numbered as 4696 of
2012).
2. The petitioner's case is that a complaint was initiated under Sections
138/141 of the Negotiable Instruments Act, 1881 by the opposite party
against the petitioners.
3. In spite of service the opposite parties are not represented.
4. Mr. Dhiraj Trivedi, learned counsel has represented the petitioners.
5. On hearing Mr. Trivedi and on perusal of the materials on record, the
following facts are before this Court:-
i. Initially the proceedings was numbered as C-4696/12.
ii. Vide order dated 17.03.2012, on inquiry the learned
Metropolitan Magistrate, 5th Court, Calcutta, held as follows:-
"However at the time of issuance of the cheque in
question, it cannot be said the accused persons who
were not directors of accused no. 1/Pabanso India Pvt.
Ltd. can be held liable U/s 138 read with Section 141 of
the NI Act. Accordingly process cannot be issued
against accused no. 6 and 7 and they are
discharged from the case.
However materials on the record suggest that all
other accused persons have committed an offence U/s
138 of the NI Act read with Section 141 of the NI Act and
accordingly issue summons against accused no. 1 to 5."
iii. The accused no. 6 & 7 are the petitioners herein.
iv. It is submitted that thereafter the case was transferred to the
learned Judicial Magistrate at Surat for trial and disposal.
Subsequently on coming into force of Ordinance on 15.06.2015,
the said case was once again transferred back to the Court of the
Chief Metropolitan Magistrate at Calcutta-700001 and
renumbered as Case No. 00175104 of 2016 and was
subsequently transferred to learned Metropolitan Magistrate 19th
Court at Calcutta for trial and disposal. Thereafter the opposite
party no. 1 adduced evidence by an affidavit as per provision of
Section 145 of the said Act on 01.07.2016 and the learned
Magistrate without taking into consideration the previous orders
and the fact that the name of the petitioners had been expunged
from the array of the accused persons and that they had been
discharged from the above case by an order dated 17.03.2014,
mechanically issued process against the petitioners on
01.07.2016.
v. Prayer for expunging the names of the petitioners on the ground
of order dated 17.03.2012 was rejected vide order dated
18.01.2017, wherein the Court held as follows:-
"It is a fact that vide order dated 17.03.12 ld.
Metropolitan Magistrate, 5th Court, Calcutta was
pleased not to issue process against the accused no.
6 and 7 and they were accordingly discharged from
the case and thereafter, the said case was
transferred before the Ld. Metropolitan Magistrate of
Surat (Gujrat) and when the said record was
retransferred Ld. C.M.M., Calcutta was pleased to
take cognizance of the same and then it was
transferred to this Court for disposal of the case and
accordingly process was issued against all the
accused persons. Thereafter, the said accused no. 6
took bail on 06.12.16 and since the date of taking bail
he did not whisper a single word in respect of
expunging his name from the cause title of the instant
case. In my opinion when the process has already
been issued by this Court, this Court does not have
any power to review or recall its own order. Hence the
instant petition stands rejected."
vi. The Court then issued warrant of arrest.
6. The said order is under challenge in this revision.
7. Admittedly its on record that the petitioners had been discharged vide
order dated 17.03.12 in the same proceeding.
8. The order dated 17.03.12 was not challenged by the complainant before
any forum.
9. Mr. Trivedi has relied upon the Supreme Court's ruling in Adalat
Prasad vs Rooplal Jindal & Ors., Appeal (crl.) 91 of 2002, on 25
August, 2004, wherein the Court held:-
"We will examine the above findings of this Court in the
background of the scheme of the Code which provides for
consideration of complaints by Magistrates and
commencement of proceedings before the Magistrate which
is found in Chapters XV and XVI of the Code;
Section 200 contemplates a Magistrate taking cognizance of
an offence on complaint to examine the complaint and
examine upon oath the complainant and the witnesses
present if any. If on such examination of the complaint and
the witnesses, if any, the Magistrate if he does not want to
postpone the issuance of process has to dismiss the
complaint under section 203 if he comes to the conclusion
that the complaint, the statement of the complainant and
the witnesses has not made out sufficient ground for
proceeding. Per contra if he is satisfied that there is no need
for further inquiry and the complaint, the evidence adduced
at that stage has materials to proceed, he can proceed to
issue process under Section 204 of the Code Section 202
contemplates: postponement of issue of process : It provides
that if the Magistrate on receipt of a complaint if he thinks
fit, to postpone the issuance of process against the accused
and desires further inquiry into the case either by himself or
directs an investigation to be made by a Police Officer or by
such other person as he thinks fit for the purpose of
deciding whether or not there is sufficient ground for
proceeding, he may do so. In that process if he thinks it fit
he may even take evidence of witnesses on oath, and after
such investigation, inquiry and the report of the Police if
sought for by the Magistrate and if he finds no sufficient
ground for proceeding he can dismiss the complaint by
recording briefly the reasons for doing so as contemplated
under section 203 of the Code.
But after taking cognizance of the complaint and examining
the complainant and the witnesses if he is satisfied that
there is sufficient ground to proceed with the complaint he
can issue process by way of summons under section 204 of
the Code. Therefore what is necessary or a condition
precedent for issuing process under section 204 is the
satisfaction of the Magistrate either by examination of the
complainant and the witnesses or by the inquiry
contemplated under section 202 that there is sufficient
ground for proceeding with the complaint hence issue the
process under section 204 of the Code. In none of these
stages the Code has provided for hearing the summoned
accused, for obvious reasons because this is only a
preliminary stage and the stage of hearing of the accused
would only arise at a subsequent stage provided for in the
latter provision in the Code. It is true as held by this Court
in Mathew's case before issuance of summons the
Magistrate should be satisfied that there is sufficient ground
for proceeding with the complaint but that satisfaction is to
be arrived at by the inquiry conducted by him as
contemplated under sections 200 and 202, and the only
stage of dismissal of the complaint arises under section
203 of the Code at which stage the accused has no role to
play therefore the question of the accused on receipt of
summons approaching the court and making an application
for dismissal of the complaint under section 203 of the Code
for a reconsideration of the material available on record is
impermissible because by then Section 203 is already over
and the Magistrate has proceeded further to Section
204 stage.
It is true that if a Magistrate takes cognizance of an offence,
issues process without there being any allegation against
the accused or any material implicating the accused or in
contravention of provision of Sections 200 & 202, the order
of the Magistrate may be vitiated, but then the relief an
aggrieved accused can obtain at that stage is not by
invoking section 203 of the Code because the Criminal
Procedure Code does not contemplate a review of an order.
Hence in the absence of any review power or inherent
power with the subordinate criminal courts, the remedy lies
in invoking Section 482 of Code.
Therefore, in our opinion the observation of this Court in the
case of Mathew (supra) that for recalling an order of
issuance of process erroneously, no specific provision of law
is required would run counter to the Scheme of the Code
which has not provided for review and prohibits interference
at inter-locutory stages. Therefore, we are of the opinion,
that the view of this Court in Mathew's case (supra) that no
specific provision is required for recalling an erroneous
order, amounting to one without jurisdiction, does not lay
down the correct law."
10. In Subramanium Sethuraman vs State of Maharashtra & Anr.,
Appeal (crl.) 1253 of 2002, on 17 September, 2004, the Supreme
Court held:-
"Having considered the argument of the learned counsel for
the parties, we are of the opinion that the argument of the
learned counsel for the appellant that the decision of this
Court in Adalat Prasad's case requires reconsideration
cannot be accepted. It is true that the case of Adalat Prasad
pertained to a warrant case whereas in Mathew's case the
same pertained to a summons case. To this extent, there is
some difference in the two cases, but that does not, in any
manner, make the law laid down by this Court in Adalat
Prasad's case a bad law. .
In Mathew's case this Court held that consequent to a
process issued under Section 204 by the concerned
Magistrate it is open to the accused to enter appearance
and satisfy the court that there is no allegation in the
complaint involving the accused in the commission of the
crime. In such situation, this Court held that it is open to the
Magistrate to recall the process issued against the accused.
This Court also noticed the fact that the Code did not
provide for any such procedure for recalling the process. But
supported its reasoning by holding for such an act of
judicial discretion no specific provision is required. In Adalat
Prasad's case, this court considered the said view of the
court in K.M.Mathew's case and held that the issuance of
process under Section 204 is a preliminary step in the stage
of trial contemplated in Chapter XX of the Code. Such an
order made at a preliminary stage being an interlocutory
order, same cannot be reviewed or reconsidered by the
Magistrate, there being no provision under the code for
review of an order by the same Court. Hence, it is
impermissible for the Magistrate to reconsider his decision
to issue process in the absence of any specific provision to
recall such order. In that line of reasoning this Court in
Adalat Prasad's case held :
"Therefore, we are of the opinion that the view of this Court
in Mathew's case (supra) that no specific provision is
required for recalling and issuance order amounting to one
without jurisdiction, does not laid down the correct law".
From the above, it is clear that the larger Bench of this Court
in Adalat Prasad's case did not accept the correctness of the
law laid down by this Court in K.M.Mathew's case.
Therefore, reliance on K.M.Mathew's case by the learned
counsel appearing for the appellant cannot be accepted nor
can the argument that Adalat Prasad's case requires
reconsideration be accepted. The next challenge of the
learned counsel for the appellant made to the finding of the
High Court that once a plea is recorded in a summons case
it is not open to the accused person to seek a discharge
cannot also be accepted. 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. Therefore, in our
opinion the High Court was correct in coming to the
conclusion once the plea of the accused is recorded
under Section 252 of the Code the procedure contemplated
under Chapter XX has to be followed which is to take the
trial to its logical conclusion. As observed by us in Adalat
Prasad's case the only remedy available to an aggrieved
accused to challenge an order in an interlocutory stage is
the extraordinary remedy under Section 482 of the Code
and not by way of an application to recall the summons or
to seek discharge which is not contemplated in the trial of a
summons case."
11. The facts in the present case is a little different from the cases
considered by the Supreme Court in Adalat Prasad vs Rooplal Jindal
& Ors.(Supra) and Subramanium Sethuraman vs State of
Maharashtra & Anr. (Supra).
12. It is on record that the petitioners herein (being the accuseds no. 6 & 7)
were discharged by the Court in the same proceedings, vide its order
dated 17.03.12, wherein the Court also directed that the case would
proceed against the other accused persons. The complainant did not
challenge the said order.
13. Thus, when the case was returned from the Court at Surat, it was to be
proceeded from the stage it was, and not as if it was a freshly initiated
case. As the proceedings in the case was a continuing one, the
Magistrate erroneously issued summons against the petitioners who had
already been discharged in the same proceeding vide a previous order
dated 17.03.12 which has not been challenged.
14. The order dated 18.01.17 thus being not in accordance with law in
respect of the present petitioners is liable to be set aside.
15. CRR 1127 of 2019 is allowed.
16. The order dated 01.07.2016 and order dated 18.01.2017 passed by the
learned Metropolitan Magistrate 19th Court at Calcutta in Complaint
Case No. C-0075104 of 2016 (previously numbered as 4696 of 2012) are
set aside in respect of the petitioners herein. The proceedings in
complaint Case No. C-0075104 of 2016 (previously numbered as 4696 of
2012) under Section 138 read with Section 141 of the Negotiable
Instruments Act, 1881 as amended pending before the learned
Metropolitan Magistrate 19th Court at Calcutta is also quashed in
respect of the petitioners herein, being the accused no. 6 and 7
namely Jasdeep Singh Sood and Jasmine Kaur.
17. The case before the Trial Court shall proceed in accordance with law
in respect of the other accused persons.
18. There will be no order as to costs.
19. All connected Applications, if any, stand disposed of.
20. Interim order, if any, stands vacated.
21. Copy of this judgment be sent to the learned Trial Court for necessary
compliance.
22. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
