THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY CRIMINAL PETITION NO.163 OF 2018

ORDER

This criminal petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to recall the N.B.W. issued on 12.08.2013 against the petitioner/accused No.1 in C.C.No.1658 of 2012 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad, registered for the offences punishable under Section 365, 384, 506, 323 read with 149 of Indian Penal Code (for short “I.P.C.”).

The only contention raised before this Court is that the petitioner is not aware of the pendency of the case as he is residing at Saudi Arbia, therefore he did not appear before the Court and requested this Court to recall the N.B.W. issued against the petitioner.

As seen from the material produced before the Court, the petitioner did not appear before the Court on several occasions, hence on 12.08.2013 N.B.W. was issued, even then he did not appear before the Court for framing of charges upon hearing the petitioner either in person or through his counsel, but remained at Saudi Arbia, thereby prevented the Court from completing the trial Court in the said case.

The request made before this Court is that if the Court fixes the date for appearance of the petitioner, the petitioner appear before the Court and file appropriate application.

According to Section 204 (1) (b) of Cr.P.C., it is the discretion of the Magistrate to issue summons, in case the case is triable by summons proceduire or warrant, in case the case is triable by warrant procedure. Section 204 (1) (b) of Cr.P.C. reads thus:

“204. Issue of process.

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.”

Therefore, the Magistrate rightly exercised discretion conferred on him under Section 204 (1) (b) of Cr.P.C. and issued N.B.W. and the same is pending since long time. Instead of filing a petition under Section 70 (2) of Cr.P.C., the petitioner invoked inherent jurisdiction under Section 482 of Cr.P.C., but the petition under Section 482 of Cr.P.C. is not maintainable under law as held by the Apex Court in “Girish Kumar Suneja v. C.B.I1”. In the said judgment, the Apex Court held as follows:

“The second reason why Amar Nath (AIR 1977 SC 2185)

is important is that it invokes the principle, in the context of criminal law, that what cannot be done directly cannot be done indirectly. Therefore, when Section 397(2) of the Code of Criminal Procedure prohibits interference in respect of interlocutory orders, Section 482 of the Code of Criminal Procedure cannot be availed of to achieve the same objective. In other words, since Section 397(2) of the Code of Criminal Procedure prohibits interference with interlocutory orders, it would not be permissible to resort to Section 482 of the Code of Criminal Procedure to set aside an interlocutory order. This is what this Court held:

While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred Under Sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred Under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that