1. 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 section 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 Versus State of Maharashtra and another, reported in AIR 2004 Supreme Court Page 4711 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 (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. 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 reaso