THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE NO.633 OF 2002 ORDER: 1 This revision is directed against the order dated 15.02.2002 passed by the learned Chief Judicial Magistrate-cum-I Additional District & Sessions Judge, Guntur in PRC No.1 of 1998, whereby the learned Chief Judicial Magistrate, instead of committing the case to the Court of Sessions, discharged the respondents 1 & 2 herein for the offence punishable under section 306 of IPC. 2 Succinctly the facts are that the husband of the petitioner herein and some other constables were alleged to have committed offences punishable under sections 341, 323, 506, 211 and 448 r/w 34 of IPC. Stating that he was not responsible for the said offence and having been not able to sustain the humiliation meted out by his superiors, the husband of the petitioner committed suicide by pouring petrol over his body and setting ablaze of himself. In that connection the petitioner lodged a complaint before the police and the same was later on referred as mistake of law. Thereafter the petitioner filed the present private complaint before the court below for the offence punishable under section 306 of IPC arraying the respondents 1 and 2 herein as accused. The court below after recording the sworn statement of the petitioner and also recording the evidence of one more witness initially took cognizance of the offence punishable under section 306 of IPC and issued process. Thereafter, the accused i.e. respondents 1 and 2 appeared before the court below and at that stage the court below passed the order impugned in this revision. Aggrieved thereby the petitioner preferred this revision. Hence the point involved in this revision is as to whether the Chief Judicial Magistrate, who took cognizance of the offence, can recall his order i.e. issuance of summons and discharge the accused persons instead of committing the case to the Court of Session. 3 Heard both sides. 4 The learned counsel for the petitioner Mr. Posani Venkateswarlu contended that the Magistrate who took cognizance of the case has no power to recall the said order of issuance of process but to commit the case to the Court of Session. If the said Magistrate is competent to try the case, then he may entertain the application filed under section 239 Cr.P.C. but when it is a case to be tried exclusively by the Court of Session, the only option left to the Magistrate is to commit the case to the Court of Session and he cannot recall his order. In this context he has drawn my attention to the decision laid down in Adalat Prasad Vs. Rooplal Jindal and others[1] & Subramanium Sethuraman Vs. State of Maharashtra and another[2]. 5 However, the learned counsel for the respondents 1 and 2 Mr.A.Hanumantha Reddy pleaded that the order impugned is based on sound reasoning of both facts as well as law and hence the same needs no interference. By placing strong reliance on the ratio laid down by the apex court in Suresh Kumar Bhikamchand Jain Vs. Pandey Ajay Bhushan and others[3] the learned counsel contended that since there was no previous sanction to proceed against the respondents the court below has rightly discharged the accused persons. He further placed reliance on the ratio laid down by the apex court in Dr. P. Surya Rao Vs. Hanumanthu Annapurnamma and others[4] and contended that even if the court comes to the conclusion that the deceased committed suicide because of the alleged harassment meted out by the respondents herein, the respondents cannot be held guilty of the said offence since the same would not attract any offence inasmuch as they discharged their official duty and hence the court below has rightly exercised its jurisdiction and recalled the order of issuance of summons. 6 Since the point involved in this revision is as to whether the Chief Judicial Magistrate, who took cognizance of the offence, can recall his order i.e. issuance of summons and discharge the accused persons, this court is of the opinion that it need not go into the factual aspects of the case leading to the filing of the complaint by the petitioner herein before the court below. 7 I find force in the submissions made by the learned counsel for the petitioner Mr. Posani Venkateswarlu. Of course, in Suresh Kumar Bhikamchand Jain case (3 supra) relied on by the counsel for the respondents 1 and 2 the apex court held that previous sanction is a must. But in the instant case the Magistrate has already taken cognizance of the offence and issued process to the accused i.e. respondents 1 and 2 herein for their appearance. So Section 203 Cr.P.C. stage was over. When once the Court has crossed the stage of 203 Cr.P.C. and issued summons to the accused for their appearance, the very same court, at that stage, cannot turn around and entertain the plea of the accused and discharge them of the allege offences. This opinion of mine is fortified by the ratio laid down by Three Judge Bench of the apex court in Adalat Prasad (1 supra) wherein their Lordships held at paras 15 and 16 as under: 15. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this court in Mathew’s case {2004 (2) ALD (Crl.) November} before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under sections 200 and 202, and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 16. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking Section 482 of Code. 8 Further, inasmuch as the Magistrate is not empowered under the Code of Criminal Procedure, to review his own order, the order impugned in this revision is not maintainable. My opinion of this is further fortified by the ratio laid down by the apex Court in Subramanium Sethuraman case (2 supra) where the apex court held at para No.14 as follows: “………. 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.” 9 In the light of the above legal provision, this court is of the view that since the court below being the committal court has no power to review its own order of issuance of summons, the order impugned in this revision is not sustainable. Further, the court below has already crossed stage of Section 203 Cr.P.C since it has already issued summons for the appearance of the accused. At that stage the accused cannot plead for discharge and the only remedy available to him to challenge an order at an interlocutory stage is the extraordinary remedy under Section 482 of Cr.P.C. Hence this revision has to be allowed. 10 Mr. A. Hanumantha Reddy further placed reliance on the ratio laid down in T.J. Stephen and othe.rs Vs. M/s. Parle Bottling Co. (P) Ltd, and others[5] and pleaded that the respondents are police officers and for no fault of theirs, they were shown as accused and that the alleged offence took place in the year 1997 and thus requested this court to take a lenient view. 11 May be it is a fact that the respondents are police officers, but it shall be remembered that this revision is not at the instance of the accused and the de facto complainant who is aggrieved by the order of the court below in discharging the accused persons filed the present revision. Hence, if the respondents so choose, they may, after committal, file an appropriate application before the Court of Session and it is for the Sessions Court to look into the said aspect and pass appropriate orders in accordance with law. 12 With the above observations, this revision is allowed and the order passed by the learned Chief Judicial Magistrate-cum-I Additional District & Sessions Judge, Guntur in PRC No.1 of 1998 dated 15.02.2002 is hereby set aside. The court below is hereby directed to issue summons to the accused persons and proceed in accordance with law as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this order since the same is an old case of the year 1998. -------------- 13.08.2010 Kvsn [1] 2004 (2) ALD (Crl.) 855 (SC) [2] 2005 (1) ALD (Crl.) 124 (SC) [3] AIR 1998 SC 1524 [4] 1981 Crl. L.J. 1191 (1) [5] AIR 1988 SC 994