TMI Blog2005 (6) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... out the recent decision of the Supreme Court in the case of Adalat Prasad v. Rooplal Jindal and Ors. (2004)7SCC338 . The learned advocate has submitted that 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 advocate has submitted that in view of the observations of the Supreme Court, the applicants have approached the High Court for relief as both the lower Courts i.e. the Magistrate or Sessions Court cannot grant the relief. 5. The learned advocate has also placed reliance on another decision of the Supreme Court in the case of Subramanium Sethuraman v. State of Maharashtra and Anr., 2005 (1) M.L.J. 626. The learned advocate has submitted that in the said decision, the Supreme Court has held that in a case where the process is issued the only course available to the aggrieved party 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 pertained to summons case would not make the law laid down in Adalat Prasad's case bad law. 8. 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. Moreover, in Adalat Prasad's case as is clear from para 18, the said question is not gone into. It is not the ratio of the judgment in Adalat Prasad's case that a revision against the order issuing process is not maintainable. It can be said to be the ratio decidendi of the judgment if the following requirements are met: (a) The issue involved must be directly and substantially in issue in the case. (b) The issue needs to be decided, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not maintainable especially also keeping in mind the observations in paragraph 18 of Adalat Prasad. So also looking to the question under consideration in the case of Subramanium Sethuraman, it cannot be said to be the ratio in the said case that a revision against order issuing process is not maintainable. 11. In the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Anr. reported in 2002 (1) M.L.J. 81, in relation to the powers of revision, the Supreme Court has observed that the interdict contained in Section 397(2) of the Code of Criminal Procedure is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at an interlocutory stage. The Supreme Court laid down that the safe test is that if the contention of the petitioner who moves the superior Court in revision, as against the order under challenge, is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not an interlocutory order in spite of the fact that it was passed during any interlocutory stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further observed in the said para that: In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable. 13. In the case of Amarnath v. State of Haryana and Anr.: 1977CriLJ1891 , it has been held that the order of Magistrate issuing summons to the accused is not an interlocutory order. In respect of the Magistrate issuing process, the Supreme Court in para 10 has observed thus : So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of their's was not involved by the impugned order. It is difficult to hold that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man have been discussed. In these paras the powers of the Magistrate in respect of reviewing his own order issuing process have been discussed and not the powers of the Sessions Court to entertain a revision against the order of the Magistrate issuing process. It is true that the words interlocutory order has been used but applying the principles in the case of Commissioner of Income Tax v. Sun Engineering Works referred to in para 9 above, it cannot be said that paras 9 to 11 of the judgment in the case of Poonamchand lay down the ratio that a revision against an order issuing process is not maintainable. 17. Thereafter, in para 12 of the decision in the case of Poonamchand, various decisions of the Supreme Court have been referred to on the point whether the order issuing process is an interlocutory order and hence a revision against the same was maintainable or not before the Sessions Court. Reference has been made to Rajendra Kumar Sitaram Pande v. Uttam and Anr. and K.K. Patel and Anr. (supra) wherein it is held that such an order is not interlocutory and hence a revision in respect of the same is maintainable. It is pertinent to note that nowhere in the case of Poonamc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the observations of the Apex Court in paras 10 and 13 in the case of Madhu Limaye, it is clear that the revisional power was being considered in respect of the High Court as well as the Sessions Court. Thus, from the decision in the case of Madhu Limaye, it is clear that an order issuing process is not an interlocutory order and hence, revision would be maintainable against the same. As far as the case of Poonamchand is concerned, the learned counsel for the applicants was unable to point out any para or sentence therein, wherein it has been specifically held or observed that no revision is maintainable in respect of an order of the Magistrate issuing process. On the other hand in the case of Madhu Limaye it has been held that such an order is not an interlocutory order and revision in respect of the same would be maintainable. In any event, the decision in the case of Madhu Limaye having been rendered by a larger Bench than the one in the case of Poonamchand, the said decision would obviously prevail. 20. Moreover, it is to be noted that the decision in the case of Poonamchand is dated 15-10-2004. In a recent decision of the Supreme Court dated 11-3-2005 in the case of S.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atni and Ors., AIR 1996 SC 1445 wherein in relation to what is the final order, it is observed as under: The finality of that order was not to be judged by co-relating that order with the controversy in the complaint, viz. whether the appellant had committed the offence charged against him therein. The fact that that controversy still remained alive is irrelevant. (emphasis supplied) 22. As observed earlier, after considering the case of Kuppuswami and various other decisions of the Supreme Court, it has been held in the case of Madhu Limaye that an order issuing process or summons is not an interlocutory order. 23. In addition to the decisions discussed above, useful reference may also be made to the case of Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr. 1999CriLJ1620 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 said question was directly in issue in the said case. The said issue was decided giving detailed reasons. The Supreme Court held after giving detailed reasoning that the order of Magistrate directing issuance of process is not an interloc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If one bears in mind the principle laid down in the case of Madhu Limaye in relation to the exercise of power of the High Court under Section 482 of Criminal Procedure Code, it is clear such power should not be resorted to if there is specific provision in the Code for the redress of the grievance of the aggrieved party. As observed earlier, the applicants have an efficacious remedy of preferring revision in respect of the order of the Magistrate issuing process. Thus, as there is a specific provision in the Code for redressal of the grievance of the applicants, in my opinion, it would be appropriate that the applicants prefer a revision against the order of the Magistrate issuing process. This is the position in respect of application under Section 482 Criminal Procedure Code. As far as Writ Petitions seeking similar reliefs i.e. quashing of process or proceedings in which process has been issued, are concerned, it would be advantageous to refer to a decision by five Honourable Judges of the Supreme Court in the case of Thansingh Nathmal v. The Supdt. of Taxes Dubri and Ors. reported in [1964]6SCR654 . In the said decision, it has been observed that when there is an efficacious ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
