IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR FC.G.1 Cr. M.P. No. 33 /2008 APPUCANTS .0..^;'-^ ^•^' ^~°^ .%<-'• ^•sl^^i^^^ -APPLICANTS •t% y ,^^G ^<)v^' ^ ^^' -z? 1. Sant Kumar Shukla S/o. Ramdayal Shukla, aged about- 59 years, Occupation- service 2. Shyama Shukla W/o. Sant Kumar Shukla, aged about- 55 years, 3. Udbhat Shukla @ Bullu S/o. Sant Kumar Shukla, aged about- 19 years, All of R/o. Kachaharipara, Baikunthpur, P.S. Baikunthpur, District- Korea (C.G.) VERSUS 1. Movin S/o. UsufQuraishi, Caste- Quraishi, aged about- 35 years, Occupation- Business, R/o. Kachahripara, Baikunthpur, Tahsil- Baikunthpur, Tahsil- Baikunthpur, District- Korea (C.G.) State of Chhattisgarh Through:- The Collector, Korea, District Korea (C.G.) frm.^ APPLICATION U/S. 482 OF CQDE_QECRIMINAL PROCEDURE "-i"r___dated___Q7.11.2008 •sssssa^. ^ ^^ ^.' HIGH COURTOF CHHATTISGARH : BILASPUR Single Bench: Hon'ble Shri Manindra Mohan Shrivastava^ J, PET1TIONERS RESPONDENTS Cr.M.P. No.33/2009 Sant Kumar Shukla and two others Versus Movin and another PETITION UNDER SECTION 482 OF THE CODE OF CRtMINAL PROCEDURE Present: - Shri Saurabh Dangi, counsel for the petitioners. Shri D.N.PrajapaSi, counsel forthe respondent No.1. ORAL ORDER (Passed on 11 ofJuly, 2011) This petition is directed against order dated 7/11/08 passed by the Sessions Judge, Koriya in Criminal Revision No.46/07 by which the petitioner's revision against issuance of process of a complaint has been dismissed. 2. A complaint was flled by the non-applicant No.1 against the petitioner atteging commission of offence under Section 506, 294 IPC indudina 341 read with Section 34 IPC before the Chief Judiciai Magistrate, Baikunthpur. After recording statements of the complainants witnesses, the Chief Judicial Magistrate vide its order dated 31/5/07 registered offence against the petitioner and directed issuance of process. Aggrieved by the aforesaid order, the petitioner preferred revision before the learned Sessions Judge, assailing the correctness and validity of order of taking cognizance and issuance of process. However, vide impugned F fr ^i order, the tearned Sessions Judge has dismissed the revision holding that the revision petition itself is not maintainable as issuance of process by registering criminal case is merely an interiocutory stage and therefore, provisions under Section 397 (2) CrPC would be attracted and only remedy for the petitioner is to take recourse to provisions under Section 482 CrPC. 3. Thesote submission of learned counsel for the petitioner is that on complaint made before the h/iagistrate, the statements were recorded whereupon the Magistrate, after applying its mind, has come to the conclusion that a case of registering offence is made out and thererore, taken cognizance by registering offence under Section 294 and 506 IPC against the petitioner has directed issuance of summons which cannot be said a mere interlocutory order in the sense, it has been used under Section 397 (2) GrPC, so as to bar exercise of revisional jurisdiction. in support of his submission, learned counsel for the petitioner placed reliance upon the decision of the Supreme Court in the case of Rajjendra KymaiLSjtaram^ande and others v. Uttam and another. AIR 1998 SC 1028 and Dhariwal Tobacco Producis Limited and others v. State of Maharashtra^and_another, 2009 (2) SCC 370. Further submission of learned counsel for the petitioner is that the iearned Court below has completely misconstrued the judgment of the Supreme Court In the case of AdalatPrasad v. Rooplal Jindal, 2004 (7) SCC, 338. The record show that upon complaint being filed by the complainant, the Magistrate recorded preliminary statements of the compiainant witnesses and thereafter, recorded that a case for trial is made out registering ofrence under Section 294/506 IPC and directed issuance of summons thereby initiating criminal proceedings against the petitioner. It is against this order, that the petitioner preferred revision invoktng provision under Section 397 CrPC. 4. On the other hand; leamed counsel for the respondent no.1 supports the order passed by the learned revisional Court. 5. The issue involved in this case as to whether an order taking cognizance by registering orfence is pureiy interiocutory so as to bar exercise of revisional jurisdiction under Section 397 CrPC, is no ionger res integra. In the case of Rajendra Kumar (supra), the Supreme Gourt heid that an order directing issuance of process cannot be termed as purely interlocutory so as to attract bar as engrafted under Section 397 (2) of the CrPC. In a more recent decislon in the case of Dhariwal Tobacco (Supra), this aspect came up for consideration and relying upon its eariier decision in the case of R.P.Kapur v. State of Punjab and other decisions, it was heid - "6. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court In a large number of decisions begtnning from R.P.Kapur v. State of Punjab, AIR 1960 SC 866 to Som Mittal v. Government of Karnataka, 2008 (3) SCC 574 has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, wouid not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application Is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of india wouid be availabte. Even in cases where a second revision before the High Court after dismissal of the firet one by the Court of Session is barred under Section 397 (2) of the Code, the inherent power ofthe Court has been heid to be available." 6. The Supreme Court also considered its earlier decislon in the case of Amar Nath v. State of Haryana. (1977) 4 SCC 137, which was atso reiied upon in its decision in the case of Rajendra Kumar (Supra). In the case of Amarnath (Supra), it was opined - "10... ..It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appettants possessed and which was being denied to them by the impugned order. it cannot, therefore, be said that the appeilants were not at all prejudiced, or that any right of their's was not invoived by the impugned order. It is difficult to hold that the impugned order summoning the appeiiants straightaway was merety an interlocutory order whteh could not be revised by the High Court under sub-sections (1) and (2) of Section 397 of the 1973 code. Theorder of the Judicial Magistrate summoning the appeilants in the clrcumstances of the present case, particularly having regard to what had preceded, was cs^ undoubtedly a matter of moment, and a valuable right of the appetlants had been taken away by the Magistrate's passing an order prima facie in a mechanical feshion without applying his mind, We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did invoive a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants io face a trial without proper application of mind cannot be heid to be an interlocutory matter but one which decided a serious question as to the rights ofthe appellants to be put on trial." 7. The learned revisional Court has compietely misdirected itseif in coming to the conciusion that the revisional jurisdiction against the order of issuing process is barred under Section 397 (2) of the CrPC, in view of the dicta of the Supreme Court in the case of Adaiat Prasad (Supra). In the case of Dhariwal Tobacco (Supra), the judgment In the case of Adalat Prasad (Supra) was explained by the Supreme Court, in following words- "8. In fact in Adalat Prasad v. Roopial Jindai, to which reference has been made by the learned Singie Judge of the Bombay High Court in V.K.Jain, this Court has cieariy opined that when a process is issued, the provisions of Sectlon 482 of the Code can be restored to. It may be true, as has been notlced by the High Court that thereunder availabitity of appellate or revisional jurisdiction of the High Court did not fall for its consideration but in our considered opinion it is wholly preposterous to hotd that Adaiat Prasad (Supra) so far as rt related to invoking the inherent jurisdiction of the High Court is concemed, did not lay down good iaw. The High Court in saying so did not only read the said judgment in its proper w perspective: it misdirected itsetf in saying soas It did not ppse unto itself a correct question. " 8. The upshot of above discussion is that the Impugned order of the learned revisional Court declining to exercise its jurisdictiort on the ground that no revision is maintainable, in /iew of the bar under Section 397 (2) of CrPC, is iilegal and unsustainable in law. The Court below has faited to exerclse jurisdiction vested in it by law. Deepti 9. Accordingty, the petition is atlowed. The impugned order is set aside and the matter is remanded back to the leamed revisional Court for consideration of petitioner's revision, on its own merits and in accordance with law. — Sd/- IVIanindra Mohan Shrivastava Judge