2006(1) Bankmann 509
SUPREME COURT OF INDIA
N. Santosh Hegde, S.B. Sinha and Tarun Chatterjee, JJ.
Subramanium Sethuraman — Appellant
versus
State of Maharashtra
& Anr. — Respondents
Cri. Appln. No. 1253 of 2002
Decided on 17-9-2004

IMPORTANT POINT
Once the plea of accused is recorded under Section 252 Cr.P.C., it is not open to accused to seek a discharge.

Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 251 and 362—Prosecution of company and its directors for dishonour of cheque issued by company—Petition for discharge by company on plea that statutory notice was not in conformity with law and Magistrate allowed petition—Sessions Court set aside the order on ground that Magistrate had no power to review his order without going into merits of legality of statutory of notice—High Court declined to interfere—SLP was rejected summarily—Fresh petition by appellant, who was the managing director, on same ground of illegality of demand notice—Magistrate allowed the application—High Court in revision set aside the order holding that it was not open to Magistrate to order discharge of accused once his plea had been recorded—Appeal—Contention that decision of Supreme Court in Adalat Prasad’s case required reconsideration was not acceptable—Only remedy available to an aggrieved accused was to challenge an order in an interlocutory stage was under Section 482 Cr.P.C.

       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’s 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. (Para 12)

       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 of 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 of K.M. Mathew’s case by the learned Counsel appearing for the appellant cannot be accepted nor can the argument that the Adalat Prasad’s case requires reconsideration be accepted.

       The next challenge of the learned Counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion.

       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. (Paras 14 to 17)

       Result: Appeal dismissed.