A. K. SIKRI, J.

( 1 ) THE Petitioner (accused) and the Respondent (complainant), in the instant case, are both residents of Chitranjan Park, New Delhi. Complainant is a married person with two children out of the wedlock. He was married on 4. 12. 1987 at Dhanbad. The Petitioner is stated to be an old friend of the complainant and known to him for last number of years. The petitioner is an unmarried man and had been a frequent visitor to the family of the complainant.

( 2 ) ON 22. 10. 1998, a divorce petition was filed by the complainant against his wife on the ground of adultery. The Petitioner was also impleaded as respondent no. 2 in the said divorce petition as the allegation was that the Petitioner was living in adultery with the complainant's wife number of times. Four months after filing the divorce petition, the complainant on the basis of these very allegations also filed a complaint under Sections 497 and 506 IPC on 9. 2. 1999. However, some time later the complainant withdrew the divorce petition on 24. 11. 1999 making a statement that he had compromised the matter with his wife and both had started living together and, therefore, he did not want to pursue the said petition. However, the complainant pursued the complaint against the petitioner herein.

( 3 ) THIS complaint was initially dismissed by the Learned MM vide order dated 11. 9. 2003. The complainant, however, preferred revision petition against this order and after hearing the said revision petition, the Learned asj passed the order dated 23. 12. 2003, whereby, remanding the case back to the Learned MM and directing him to reconsider the question of summoning of the Petitioner. On remand, the Learned MM passed the following order on 24. 12. 2003 :

"file and order of Court of Shri Lal Singh, ASJ received. Since case is remanded back, so case be registered. Sessions Court in its findings have already held that there is a prima facie evidence against the accused and offence of adultery is already made out. Hence on basis of findings given by the Ld. ASJ, I find prima facie case under Section 497 IPC against accused. No offence under section 506 IPC is made out even after reconsidering the evidence. Accordingly, issue summons to accused on PF/speed post and through process server of court on 20. 1. 2004. "

( 4 ) THE Petitioner had, in the meantime, preferred petition under Section 482 of the Cr. P. C. against the order dated 23. 12. 2003 passed by Learned asj remanding the case back to the MM. This petition was disposed of by this Court vide order dated 13. 2. 2004, inter alia, observing:

". . . It is obvious that a remand order which is based on an allegation that the Magistrate has not summoned the accused inspite of material on record cannot be an order on merits of the case but is a direction to the Magistrate to reconsider the material placed before him in the complaint in accordance with law. "

( 5 ) AFTER this order was passed, the Petitioner moved an application for recalling summoning orders dated 24. 12. 2003. This application has been rejected by the Learned MM vide order dated 30. 10. 2004. The Learned MM, inter alia, observed that in view of the judgment in the case of Adalat prasad v. Rooplal Jindal and Ors. , 113 (2004) DLT 356 (SC), the application for recalling was not maintainable. He also referred to the order dated 23. 12. 2003 of the Learned ASJ. The aforesaid two orders passed by the Learned MM are challenged primarily on two grounds:

(1) With the withdrawal of divorce petition by the complainant on 24. 11. 1999, the acts of adultery had been condoned by the complainant and, therefore, it was not open to the complainant to pursue the complaint. In support, he referred to the judgment of the Supreme Court in the case of Smt. Chandra Mohini Srivastava v. Shri Avinash prasad Srivastava and others, AIR 1967 SC 581 and Jasimaddin sheikh v. Ichohak Mistri, Vol. I Calcutta Weekly Notes 498.

(2) There was no application of mind by the Learned MM i