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2008 (4) Crimes 458 (Karn.)
KARNATAKA HIGH COURT
Subhash B. Adi, J.
Prof. Manjunatha B.P. —Petitioner
versus
Prof. V.J. Pyati and Anr. —Respondents
Crl. Rev. Petition No. 4 of 2007
Decided on 17.6.2008
Counsel for the Parties:
For the Petitioner:Sri. S.R. Hegde Hudlamane, Advocate.
For the Respondent No. 1:Sri T.R. Rajagopal, Advocate.
For the Respondent No. 2: Sri Honnappa, High Court Government Pleader.
IMPORTANT POINT
In case of issuance of summons, only remedy available is by way of petition under Section 482 Cr.P.C and revision entertained by Sessions Court against such order was not proper.
Headnote:Criminal Procedure Code, 1973—Sections 204 and 397—Whether issue of process under Section 204 Cr.P.C. by Magistrate is amenable to revisional jurisdiction No—Expression interlocutory order—Explained.
Held: 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 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. However, the Apex Court in the matter of Subramanium Sethuraman’s case considered the Mathew’s case and the Adalat Prasad’s case and found that, the view expressed in Mathew’s case is not accepted by the Apex Court in Adalat Prasad’s case. In the decision of the Subramanium’s case, 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. (Para 8)
Result: Petition allowed.
ORDER
Subhash B. Adi, J.—This revision is against the order passed in Criminal Revision Petition No. 79/2005 on the file of the Sessions Judge, Udupi.
2. A private complaint was filed by respondent in P.C. No. 893/2000 which is registered as C.C. No. 1705/2005 for an offence punishable under Sections 384, 385, 389, 467, 468 and 506(II) read with Section 511 of IPC.
3. The Trail Court based on the averments of the complaint took cognizance and registered the case. Thereafter, on the basis of the sworn statement and the material produced found prima facie case and ordered for issue of summons under Section 204 of Cr.P.C.
4. The said order was called in question by the respondent in Criminal Revision Petition No. 79/2005 before the learned Sessions Judge under Section 397 read with 401 of Cr.P.C. The learned Session Judge by the order in question partly allowed the revision petition. Insofar as accused No. 1 is concerned, the issue of process in respect of offence punishable under Sections 384, 385, 389, 465 and 467 of IPC is set aside and further directed the Trial Court to proceed with the matter for the offence punishable under Section 506(2) of the IPC. It is this order is called in question by the complainant.
5. Sri Hegde Hudlamane, learned Counsel appearing for the petitioner submitted that, the revision petition filed by the accused No. 1 is not maintainable. He submitted that, the order passed by the learned Magistrate is the interlocutory order and the interlocutory orders are not amenable to the jurisdiction of the revisional Court. In this regard, he referred to Section 397 of Cr.P.C. and submitted that, Section 397 (2) clearly reveals that, revision is not maintainable against the interlocutory order. In support of his case, he relied on a judgment of the Apex Court reported in the matter of Subramanium Sethuraman v. State of Maharashtra and Anr.1 and submitted that, the Apex Court in the said case relied on the earlier decision reported in the matter of Adalat Prasad v. Rooplal Jindal and Ors.2 where the Apex Court over-ruled the decision reported in the matter of K.M. Mathew v. State of Kerala and Anr.3 and submitted that, the Apex Court has held that, the remedy against issue of process under Section 204 of Cr.P.C. is only by way of Section 482 petition and not by way of a revision.
6. Learned Counsel appearing for the respondent submitted that, the revision is maintainable. If the interlocutory order touches the rights of the parties, then the Revisional Court has jurisdiction to entertain a revision. In support of his submission he relied on the decision reported in the matter of Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr.4 and submitted that, the Apex Court relying on the Mathew’s case has observed that, the jurisdictional Magistrate has power to recall the order of issue of summons. He further submitted that, the discretion in exercise of revisional jurisdiction should be within the four corners of Section 397 of Cr.P.C., whenever there has been miscarriage of justice in whatever manner. He further submitted that, the interlocutory orders referred to under Section 397(2) which are purely interim and temporary in nature, do not touches the rights or the liabilities of the parties and in order to prevent the delay in the trial, the revisional jurisdiction is not conferred against the said interlocutory order. But in cases where interlocutory orders touches the rights and liabilities of the parties, such orders cannot be termed as interlocutory orders and they substantially effect the rights of the parties. He further submitted that, issuance of process substantially touches the rights of the accused and in such circumstances, as observed by the Apex Court, the revisional Court can exercise power under Section 397 of Cr.P.C.
7. The only point that arises for consideration in this revision petition is:
“As to whether issue of process in exercise of power under Section 204 of Cr.P.C. by the learned Ma
