IN THE HIGHF'^QURT OF JUDICATURE .ST BILASPUR [C.G.1 CR.M.P.NO. o?-5'z) /2011 ench PETITIONER »r , .^.^ ^-^^ trfi** '" ^t M*...--" K.L.Patel S/o late Sri Raj Kumar Patel Aged-about 63 years, Retired Assistant engineer (Irrigation/ water resources department) Hasdeo barrage, division- Rampur Korba R/o village- Jatari, Thana/Tahsil-Pussour, Halmukam- Krishna Vatika, Boerdadar, Raigarh, Distt.- Raigarh [C.G.] VERSUS RESPONDENTS ^ 1. Hem Singh Rafhiya S/o Janak Rain Rathiya Aged-about 45-46 years, caste- Kanwar, occupation- Agriculture 8s social welfare, R/o Village- Gorpar Thana./ Tahsil-Khai-asiya, Distt.- Raigarh [C.G.] 2. Bihari Das Mahant S/o Rohidas Mahant, Aged-about 44-45years, Occupation-Upsarpanch, R/o Gorpay- chowki jobi thana/ tahsil- Kharasiya, Distt.- Raigarh [C.G.] 3. Gulab Singh Rathiya S/o Bodhan Singh Aged-about 37 ye,u-s, Sarpanch, Gram Panchayat Gorpai', Tahsil- Kharasiya, Distt.- Raigarh [C.G.] 4.Kartik Ram Rathiya S/o Asamas Singh Rathiya, Aged- about 36 years, ^ icaste- Kanwar, occupation- Secretai-y/ Panchayat Karmi, village Panchayat- Gorpar, Tahsil- Kharasiya, Distt.- Raigarh [C.G.] S.C.D.Khobragade Sub Engineer, I.E.S. department Kharasiya, Distt.- Raigarh [C.G.] —r 6.8hupendra Kumar Verraa S/o Ganesh Ram Venna Tractor owner, Aged-about 36 years, R/o village- Sajapali, Tahsil- Kharasiya, Distt.- Raigarh [C.G.] 7.8tate of Chhattisgarh Through- District Magistorate, Raigarh [C.G.] PETITION UNDER SECTION 482 OF THE CRIMINAL PROCEDURE CODE A. " f^^^-. '"^'- .-^w-6' •••• "%,' Sr's^SSs B --^ .'s/ /^s^- fl^ HIGH COURT OF CHHATTiSGARH : BiLASPUR Sinaie Bench: Hon'ble Shri Manindra Mohan Shrivastava. J. PETITiONER RESPONDENTS Cr.M.P. No.253/2011 K.L.Patel Versus Hem Sinah Rathiya and ors. FETITiON UNDER SECTiON 482 OF THE CODE OF CRirviiNAL PROCEDU8E Present: - Shri Rajiv Shrivastava, counsei for the petitloner. Shri Manoj Jaiswal, counse! for respondent No.1. snn suresn verrna, counsei ror responaent NO.S. Shri Akhii Mishra, Government Advocate ror the State / respondent No.7. None tor other respondents. ORAL ORDER (Passed on 12'" of-August, 2011) This petition has been fiied by the petitioner aggrieved by order dated 31/1/2011 passed by the Revisional Court whereby the RevisionaE Court has dismissed the revision of the petitioner holdinfl the same to be not maintainable. The petitioner filed the revision petition before the Revisionai Court aggrieved by the order of the Magistrate taking cosnizance against him. 2. This Court in the case of Sant Kumar Shukla and others vs. Movin and another in Cr.M.P. No.33/09 has held that an order of takin.q cognizance cannot be treated as interlocutory and the revision is maintainable. .ff 3. The issue involved in this case as to whether an order iakina cognizance by registering offence is purely interiocutory so as to bar exercise of revisional jurisdiction under Section 397 CrPC, is no ionger res integra. in the case of Rajendra Kumar Sitaram Pande and others v. Uttam and another, AIR 1999 SC 1028, the Supreme Court held that an order directing issuance of process cannot be termed as pureiy interiocutory so as to attract bar as enflrafted under Section 397 (2) or the CrPC. in a more recent decision in the case of Dhariwal Tobacco Products Limited and others v. State of Maharashtra and another, 2009 (2) SCC 370, this aspect came up for consideration and reiying upon its earlier decision in the case of R.P.Kapur v. State of Punjab and other decisions, it was heid - "6. indisputabiy issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. Thls Court in a large number of decisions beginning from R.P.Kapur v. Siate of Punjab, AIR 1960 SC 866 to Som Mittai v. Government of Karnataka, 2008 (3) SCC 574 has iaid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itseif, in our considered opinion, would not constitute a bar for entertaining an applicatlon under Section 482 of the Code. Even where a revision application is barred, as for exampiethe remedy by way of Section 115 ofthe Code or Civil Procedure, 1908, this Couri: has heid ihat the remedies under Artictes 226/227 of the Constitution of India would be available. Even in cases where a second revision before the Hiah Court after .~\ •l^.' 'JiaM dismissai of the first one by the Court of Session is barred under Section 397 (2) of the Code, the inherent power of the Court has been heid to be availabie." 3. The Supreme Court also considered its eariier decision in the case of wnaLNain v. State of Haryana, y977) 4 SQC 13J, which was aiso relied upon in its decision in the case of Rajendra Kumar (Supra). in the case of Amarnath (Supra), it was opined - "10....ltwas onlywith the passing ofthe impugned orderthat the proceedings started and the question of the appeiiants being put up for triai arose for the first time. This was undoubtedly a vaiuable right which the appeliants possessed and which was being denied to them bv the impugned order. !t cannot, therefore, be said that the appeilanis were not at aii prejudiced, or that anv riaht or theirs was not involved bv the impugned order. It is difficult to hold that the impugned order summoning the appeiiants straightaway was merety an interlocutory order which couid not be revised by the High Court under sub-sections (1) and (2) of Section 397 of the 1973 code. The order ofthe Judicial Maflistrate summonina tne appeliants in the circumstances of the present case, particuiariy having regard to what had preceded, was undoubtedly a matter or moment, and a valuable right of the appellants had been taken away by the Magistrate's passing an order prima racie in a mechanicai rashion without appiying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and which dia' involve a decision regarding the rights of the appeliants. If the appellants were not summoned, then they couid not have faced the triai st all, but by compeiling ihe appellants to face a triai without proper aDpiication of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appeiiants to be put on triai." 4. In the case of Dhariwal Tobacco (Supra), the judgment in the case of Adalat Prasad v. Rooplal Jindal, 2004 (7) SCC, 338, was expiained by the Supreme Court, in following words - "8. In fact in Adaiat Prasad v. Rooplai Jindal, to which reference has been made bv the iearned Sinale JudRe of the Bombay Hiflh Court in V.K.Jain, this Court has ciearly opined that when a process is issued, the provisions or' Section 482 of the Code can be restored to. it mav be true, as has been noticed by tbe High Court that thereunder availability of appellate or revisional jurisdiction of the Hicih Court did not fali for its consideration but in our considered opinion it is wholly preposterous to hold that Adaiat Prasad (Supra) so far as it related to invokinfl the inherent jurisdiction of the High Court is concerned, did not lay down good law. The High Court in saying so did not only read the said judgment in its proper perspective : it misdirected itself in saying so as it did not oose unto itself a correct auestion." 5. In the present case, the Trial Court had taken coanizance and the petitioner moved an application before the trial Court for recall of the order of taking cognizance on the ground that wjthout taking sanction under Section 197 CrPC, the petitioner cannot be prosecuted. That appiication has been rejected by the Magistrate which ied to fiiing of this petition. -I \ - 6. Therefore, the order taking cognizance q»|the order rejecting the application for recal! of the order taking cognizance, cannot be said to be interlocutorv in nature. The bar under Section 397 (2) CrPC would not be attracted. Accordingly, the petition is aiiowed. The impugned order of the revisionai Court is set aside and the matter is remanded back to the Sessions Judge for consideration of petitioner's revision on its own merits and in accordance with iaw. g^y. Manindra Mohan Shrivastava Judge Deepti