IMPORTANT POINTS
1. It is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order.
2. The only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 Cr.P.C. 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.

Headnote:Criminal Procedure Code, 1973-Section 204-Issuance of process is a preliminary step in the stage of trial-Such an order being an interlocutory, same cannot be reviewed or reconsidered by Magistrate, there being no provision under the Code for review of order by same Court-High Court was correct in its conclusion that once plea of accused is recorded u/s 252 Cr.P.C., trial is to follow to its logical conclusion-In a complaint u/s 138 Negotiable Instruments Act, Company moved application for recalling summoning order on a plea of illegality of demand notice-Magistrate following judgment of Supreme Court in K.M. Mathew case allowed application-Sessions Court in revision set aside the order and order was upheld by High Court-SLP in Supreme Court was withdrawn-Petition by appellant, Managing Director of Company before Magistrate for recalling summoning order on validity of statutory notice-Magistrate allowed application-High Court set aside order in revision-Appeal-No illegality in the view taken by High 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. (Paras 12 to 15)
       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. (Para 17)

JUDGMENT

Santosh Hegde, J.-This appeal is preferred by accused No. 4 in Criminal Complaint Case No. 2209/S/1997 pending before the Metropolitan Magistrate, 33rd Court at Ballard Pier, Bombay challenging an order made by the High Court of Judicature at Bombay in a revision petition filed by the 2nd respondent herein whereby the High Court allowed the revision petition and set aside the order of discharge made by the trial court.

2. The facts necessary for the disposal of this appeal are as follows :

The 2nd respondent herein lodged a complaint before the Additional Chief Metropolitan Magistrate for offence punishable under Section 138 of the Negotiable Instruments Act against the appellant herein and four others which included a Company and its Directors. It is not disputed that the appellant herein was one of the Directors of the Company. The complaint in question was filed in December, 1996 and after following the procedure laid down in Chapter XV and XVI of the Code of Criminal Procedure, 1973, the trial court issued summons to the named accused in the complaint. On receipt of the complaint, the 1st accused Company challenged the same before the very same Magistrate on the ground that the Magistrate could not have taken cognizance of the offence because of the defective statutory notice. Therefore, the Company sought for its discharge. The said application came to be rejected. Thereafter, the second application for discharge was filed by the Company on the very same ground which was allowed by the Magistrate following the judgment of this Court in the case of K.M. Mathew vs. State of Kerala & Anr. (1992(1) SCC 217) which 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. In this process, the Magistrate came to the conclusion that the statutory notice issued by the complainant was not in conformity with the requirement of law.

3. Aggrieved by the said order of discharge made by the learned Magistrate, the complainant challenged the same by way of a revision petition before the learned Sessions Court on the ground that the learned Magistrate had no power to review his earlier order because of the Bar under Section 362 of the Cr.P.C. The Sessions Court accepted the contention of the appellant and allowed the revision petition without going into the merits of the legality of the statutory notice.

4. The Company thereafter challenged the said order of the learned Sessions Judge by way of a criminal writ petition filed under Article 227 of the Constitution of India before the High Court of Judicature at Bombay. The High Court by its order dated 20th December, 2000 rejected the said petition on the ground that once the Magistrate records the plea of the accused and the accused pleads not guilty then the Magistrate is bound to take all such evidence as may be produced in support of the prosecution and there is no provision under the Cr.P.C. enabling the Magistrate to recall the process and discharge the accused after recording the plea of the accused. It is to be noted that there is no dispute in regard to the fact that the plea of all the accused was recorded by the Magistrate on 1.11.1999.

5. The above said order of the High Court dismissing the criminal writ petition was challenged in a special leave petition bearing No. SLP (Crl.) No. 429/2001 by the Company before this Court. This Court rejected the SLP summarily on 5.2.2001 by the following order:

"Mr. Gopal Subramanian addressed arguments for some time. After noticing the observations made by this Court, he requested for permission to withdraw this SLP without prejudice (to) his contentions (to) be raised at the appropriate stage. We therefore, dismiss this SLP as withdrawn."

6. After withdrawing the SLP, one would have accepted the accused in the case to co-operate with the trial court in concluding the

Click Here to Read the rest of this document

2004 Supreme(SC) 1100

Cases Referred (2)