Criminal Writ Petition No.1720 of 2010

18th January, 2011

Petitioner Counsel: Mr. ANANT SHINDE
Respondent Counsel: Mr. BHUSHAN WALIMBE,Ms. PREETI WALIMBE,Mr. D. R. MORE

Cases Cited:
Subramanian Sethuraman Vs. State of Maharashtra, 2004 ALL MR (Cri) 3469 (S.C.)=AIR 2004 SC 4711 [Para 3,4]
Rajendrakumar Sitaram Pande Vs. Uttam, (1999)3 SCC 134 [Para 3]
K. M. Mathew Vs. State of Kerala, 1992(1) S.C.C. 217 [Para 4]
Adalat Prasad Vs. Rooplal Jindal, 2004 ALL MR (Cri) 3131 (S.C.)=2004(7) Scale 137 [Para 4]
Professor Manjunath B. P. Vs. Prof. V. J. Pyati, 2009 Cri.L.J. 209 [Para 8]
Dhariwal Tobacco Products Ltd. Vs. State of Maharashtra, 2009 ALL MR (Cri) 234 (S.C.)=(2009)2 S.C.C. 370 [Para 10]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith.

2. This petition challenges the order dated 1st April, 2010 passed by the Sessions Court allowing Criminal Revision Application preferred by respondent nos.1 and 2 from the order of issuance of process by the trial court in the proceedings filed under sections 406 and 420 read with 34 of I.P.C.. There were two contentions raised by the applicant before the Sessions Court in its challenge to the order. Firstly that the Criminal Revision Application before the Sessions Court was not maintainable as the order of issuance of process is interlocutory order and secondly that the order of issuance of process was quite legal and proper.

3. Mr. Shinde, the learned counsel for the petitioner submits that the order of issuance of process is a purely interlocutory order. It does not touch the rights and liabilities of parties. Therefore, in view of the specific provision of sec.397(2), Criminal Procedure Code the revision application to the Sessions Court against such an order was not maintainable and the Sessions Court ought not to have entertained the same. Mr. Shinde relies upon decision of the Apex Court in Subramanian Sethuraman Vs. State of Maharashtra and another, reported in AIR 2004 Supreme Court Page 4711 : [2004 ALL MR (Cri) 3469 (S.C.)] in support of his submission. As against this Mr. Walimbe the learned counsel for respondent no.1 relies upon another decision of the Apex Court in Rajendrakumar Sitaram Pande and others Vs. Uttam and another reported in (1999)3 Supreme Court Cases Page 134 to submit that the order directing issuance of process is intermediate or quasi-final order and hence, revisional jurisdiction u/s.397 can be exercised against the same.

4. In order to appreciate the above two seemingly inconsistent decisions a reference is required to be made to the facts of the case involved in each decision and the issue arising therefrom for decision of the Apex Court. I will first take up the latest decision i.e. the decision in Subramanian's case [2004 ALL MR (Cri) 3469 (S.C.)] (supra). In that case the accused in a complaint u/s.138, Negotiable Instruments Act had, on receipt of the summons, challenged the same before the same Magistrate on the ground that the Magistrate could not have taken cognizance of the offence because the statutory notice was contrary to law. The application was allowed by the Magistrate following judgment of the Apex Court in the case of K. M. Mathew Vs. State of Kerala and anr. reported in 1992(1) S.C.C. 217. That judgment had held that it was open to the Magistrate taking cognizance and issuing process to recall the said process in the event of the summoned accused showing to the court that the issuance of process was legally impermissible. Aggrieved by the order the complainant challenged it by filing criminal revision application before the High Court which allowed the revision application on the ground that there is no provision under the Code of Criminal Procedure enabling the Magistrate to recall the process and discharge the accused after recording the plea of the accused. This order was then carried to the Apex Court. The Apex Court at Para 14 of the judgment, noted that the decision rendered in K. M. Mathew's case has been overruled by its three judge Bench in the case of Adalat Prasad Vs. Rooplal Jindal and others reported in 2004(7) Scale Page 137 : [2004 ALL MR (Cri) 3131 (S.C.)]. Para 14 reads as follows :

"14. 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 lay down the correct law"."

5. Accepting the decision in Adalat Prasad's case, the Apex Court held that the order of the Magistrate reconsidering his own decision of issuing process was bad in law. It also noticed that the order had been passed in a summons case covered by Chapter XX of Code of Criminal Procedure which does not contemplate a stage of discharge. Then at para 17 it observed as follows which observations have been stressed upon by Mr. Shinde.

"17. 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 extra-ordinary 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."

6. In Rajendrakumar Pande's case a complaint had been filed alleging commission of the offence punishable u/s.500 r/w. 34 of Indian Penal Code in which process was issued and the summons served upon the accused. That order was challenged in a revision before the Sessions Court. The learned Sessions Judge considered the merits of the case and set aside the order of issuance of process. The complainant then moved the High Court invoking it's jurisdiction u/s.482 of Code of Criminal Procedure. The High Court set aside the order of the learned Sessions Judge holding that the order directing issuance of process being an interlocutory order, the Sessions Judge has no jurisdiction under Section 397 to interfere with the same. While considering appeal from that order, the question framed by the Apex Court was :

"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."

The answer to the question at paras 5 and 6 of the judgment reads as follows :

"5. The very object of conferring revisional jurisdiction upon the superior criminal courts is to correct miscarriage of justice arising from mis-conception 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 & Ors. Vs. State of Haryana, 1978(1) SCR 222, 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 Vs. State of Maharashtra, 1978(1) SCR 749, 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 Vs. State, 1980(2) SCR 380, 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."

7. Undoubtedly both the above decisions of the Apex Court arise out of the same basic order of issuance of process by the Magistrate. The challenge to the orders however, was before different forums. In Subramanian's case, the order was challenged before the same court i.e. the trial court whereas in Rajendrakumar Pande's case it was challenged in the higher court by invoking revisional powers of that court. Consequently the questions of law emerging from the two cases could not have been and were not the same. Subramanian's case considered the power of the Magistrate to review or reconsider his own decision to issue process in the absence of any specific provision in Code of Criminal Procedure to recall the said order. As the question did not involve powers of the revisional court, the judgment in Subramanian's case neither discussed the provisions of section 397(2) of Code of Criminal Procedure nor referred to the decision in Rajendrakumar Pande's case. In the circumstances, the observations made including the observations at para 17 of the judgment which has been heavily relied upon by Mr. Shinde must be read and understood in the facts of that case. As against this in Rajendrakumar Pande's case, the Apex Court was considering the ambit of powers of Sessions Court as the revisional court. As has been mentioned in that judgment itself, the very object of conferring revisional jurisdiction on the superior criminal courts is to correct miscarriage of justice arising from misconception of law or irregularity of procedure adopted by any inferior criminal court situate within its local jurisdiction. The interpretation as regards the term "interlocutory order" in Subramanian's case is not interpretation of the term used in any provision of the Criminal Procedure Code. The term has been interpreted because it was used in K. M. Mathew's case. The interpretation of the term in Rajendrakumar Pande's case is for its use in Section 397(2) of the Code of Criminal Procedure. Since two decisions of the Apex Court though arising out of the same basic order and apparently interpreting the same term "interlocutory order" are completely distinct from each other, no confusion can be created by reading the interpretation of the term "interlocutory order" from Subramanian's case into section 397(2) of the Code of Criminal Procedure in the face of specific decision interpreting the term in the very provision. In these circumstances, in my considered opinion, the decision in Subramanian's case relied upon by Mr. Shinde is not applicable to the facts and circumstances of the present case.

8. Mr. Shinde then relies upon the decision of Single Judge of Karnataka High Court in Professor Manjunath B. P. Vs. Prof. V. J. Pyati and anr. reported in 2009 Cri.L.J. 209. He submits that Karnataka High Court after considering both the above decisions held that issuance of process is interlocutory order which does not touch the rights and liabilities of the parties or substantially affect the rights of the parties. Careful reading of the decision of Karnataka High Court shows that it was sought to be argued before the Karnataka High Court that the interlocutory order referred to in section 397(2) is an order purely interim and temporary in nature and does not touch rights and liabilities of the parties and in order to prevent delay in the trial, revisional jurisdiction is not conferred against such interlocutory order. But in cases where the interlocutory orders touch rights and liabilities of the parties, such matters cannot be termed as interlocutory orders as they substantially affect the rights of the parties. It was further submitted that issuance of process substantially touches the rights of the accused and in such circumstances as observed by the Apex court in Rajendrakumar Pande's case, the revisional court can exercise power under section 397 of Code of Criminal Procedure. For rejecting the above argument, Karnataka High Court at Para 8 of the judgment observed as follows :

"8. Interlocutory order if substantially touches the rights of the parties and has an effect of final decision against the party, certainly such orders cannot be termed as interlocutory orders. However, the issuance of process under Section 204 of Cr.P.C. cannot be termed as an order substantially touches the rights of the accused and partake the character of the final decision. Inasmuch as the accused has a right to participate in the proceedings and has a right to question the issuance of process under Section 482 of Cr.P.C.. The Apex Court in the Mathew's case (AIR 1992 SC 2206) has held that, the Magistrate can recall the issuance of summons after the appearance of the accused. This view was accepted in the case of Rajendra Kumar Sitaram Pande (AIR 1999 SC 1028). However, the Apex Court in the matter of Subramanian Sethuraman's case (AIR 2004 SC 4711) considered the Mathew's case and the Adalat Prasad's case (AIR 2004 SC 4674) and found that, the view expressed in Mathew's case is not accepted by the Apex Court accepted the view taken by the Adalat Prasad's case and held that, the learned Magistrate has no power to recall the order of issuance of summons. At para 19 of the Subramanian's case, the Apex Court has observed as under:

"Therefore, legitimately the appellant should raise this issue to be decided at the trial. Be that as it may, we cannot prevent an accused person from taking recourse to a remedy which is available in law. In Adalat Prasad's case, we have held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law."

9. It then noted the observations of the Apex Court in Subramanian's case that in the cases of issuance of summons the only remedy available is by way of filing petition under section 482 of Code of Criminal Procedure, to hold that, if that was so, the revision entertained by the revisional court was not proper. I most respectfully disagree with the observations of the Karnataka High Court for the reasons stated earlier in the foregoing para. Apparently it was not argued before the Karnataka High Court that the questions falling for consideration of the Apex court in two decisions were entirely different, one related to the power of the trial court whereas the other related to the revisional powers of the higher court.

10. A reference may also be made to another decision of the Apex Court on the subject i.e. the decision in Dhariwal Tobacco Products Ltd. and Others Vs. State of Maharashtra and anr. reported in (2009)2 S.C.C. Page 370 : [2009 ALL MR (Cri) 234 (S.C.)] in which it has been in terms observed "Indisputably issuance of summons is not an interlocutory order within the meaning of section 397 of the Code". The Apex Court in the case was considering the scope of the exercise of power of the High Court u/s.482 of Code of Criminal Procedure. The specific question involved was whether an application u/s.482 of Code of Criminal Procedure can be dismissed only on the premise that an alternative remedy for filing an application u/s.397 of the code is available. The appellant before the Apex Court had challenged the order of issuance of process by the Magistrate by invoking jurisdiction u/s.482 of Code of Criminal Procedure. That application was dismissed by the High Court on the ground that a recourse could be taken by the appellant to the remedy of filing a revision application u/s.397 of Code of Criminal Procedure. The Apex Court held that indisputably issuance of summons is not an "interlocutory order" within the meaning of section 397 of the Code. But only because a revision application is maintainable the same by itself would not constitute a bar from entertaining an application under section 482 of Code of Criminal Procedure.

11. In view of the two decisions of the Apex Court there can be no doubt as regards maintainability of a revision against the order of issuance of process. Therefore, I find no merit in the first contention raised on behalf of the petitioner.

12. The question that is now to be considered is whether the order passed by the revisional court setting aside the issuance of process was justified on the merits of the case. The brief statement of the case of the petitioner in his complaint is that he is a builder and developer by profession. Original accused Nos.1 to 3 are legal heirs of one Shri. Koya Joma Todekart and Late Smt. Natubai Hira Patil who were owners of the agricultural land at Kharghar. The said land has been acquired by the State Government of Maharashtra for development of new township of Navi Mumbai by CIDCO. Original accused nos.1 to 3 being project affected persons were entitled to get leasehold plot to the extent of 12.5% of their total land acquired by the State for CIDCO. In the month of July, 2003 original accused nos.1 to 3 represented to the petitioner that they are entitled to get lease-hold plot admeasuring 2600 sq. mtrs. within the limits of Kharghar and offered to sell 500 sq. mtrs. of land out of the said plot for total consideration of Rs.15 lacs. Accordingly, the agreement of "Development-cum-Assignment of Rights" dated 13th August, 2003 came to be executed. Original accused Nos.1 to 3 also executed power of attorney pertaining to the said plot in favour of the petitioner. At that time, the petitioner had paid sum of Rs.1,50,000/- as earnest money. They also handed over letter dated 8th October, 2003 issued by the office of CIDCO Bhavan, stating inter alia that CIDCO has agreed to allot leasehold plot total admeasuring 2600 sq. mtrs. in favour of original accused nos.1 to 3. Thereafter, accused nos.1 to 3 offered further land admeasuring 500 sq. mtrs. to the petitioner at the same contract rate. Petitioner then made further payment of Rs.28 lacs. from time to time, the last payment being made on 1st April, 2006. The petitioner alleges that after receiving the payments, original accused nos.1 to 3 deliberately delayed execution of tripartite agreement. In January, 2006 the petitioner learnt from reliable sources that the original accused nos.1 to 3 in connivance with one developer were trying to assign their rights to some other person. Therefore, he filed civil suit being Suit No.113 of 2007 in the court of Civil Judge, Senior Division, Panvel against the original accused nos.1 to 3. The complaint does not give any particulars of the civil suit, neither the contents thereof nor its outcome. It is then baldly alleged that original accused Nos.1 to 3 in collusion with respondent nos.1 and 2 played fraud upon the court by submitting false and fabricated documents. And further that "respondent nos.1 and 2 along with other accused persons in connivance with each other with fraudulent intention played fraud and cheating against the complainant and systematically hatched the conspiracy against the complainant". According to complaint, respondent nos.1 and 2 have wrongly entered into transaction with original accused nos.1 to 3 and thereby cheated the petitioner to the extent of Rs.29,50,000/-. This act according to the complaint, amounts to offence under sections 120(B), 406, 415, 418, 420, 423 read with 34 of I.P.C..

13. The revisional court noted that there was no dispute that the original accused nos.1 to 3 had agreed to hand over portion of 1600 sq. mtrs. of plot to respondent nos.1 and 2 in the month of August, 2006 for development. This land was different from the portion of land admeasuring 1000 sq. mtrs. to be given to the petitioner. It also took note of the delay of three years in filing the complaint and the fact of respondent nos.1 and 2 not being parties to the transaction between the petitioner and original accused nos.1 to 3. It observed that there is no evidence to show that respondent nos.1 and 2 were informed by original accused nos.1 to 3 of the earlier transaction. It held that merely because petitioner entered into transaction during the subsistence of the earlier transaction and that too without knowledge of the earlier transaction, it cannot be said that respondent nos.1 and 2 entered into transaction with an intention of cheating the earlier purchasers. For these reasons, revisional court held that there is no sufficient ground to proceed with the complaint against respondent nos.1 and 2. The observations of the revisional court are fully justified and are borne out by the record. It has also been already seen that the complaint filed by the petitioner is vague as it does not set out the necessary particulars. In the circumstances, there can be no interference with the impugned order setting aside the order of issuance of process and dismissal of complaint against respondent nos.1 and 2. Hence, the petition is dismissed.

Petition dismissed.