THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 2062 of 2009 Date: 14.12.2009 Between: Sunkala Maddi Mallaiah Goud. ..Petitioner. And The State through Sub-Divisional Police Officer, Mahabubnagar, rep. by the Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 2062 of 2009 Order: This revision has been filed challenging the order dated 14.09.2009 passed in P.R.C. No.48 of 2009 by the Judicial Magistrate of First Class, Nagarkurnool, Mahaboobnagar District, whereby and whereunder NBW was issued against the petitioner herein. The brief facts of the case which are necessary for disposal of this revision are as follows. The petitioner is the sole accused in Crime No.71 of 2007 of Thimmajipet Police Station, Mahaboobnagar District, registered for the offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’). The petitioner filed Criminal Petition No.7618 of 2008 to quash the proceedings in Crime No.71 of 2007. This Court, by order dated 25.11.2008, passed orders as follows. “In the circumstances, there shall be stay of arrest of the petitioner till filing of charge sheet, if any. Investigation and consequential steps on the basis of result of investigation shall go on. The Criminal Petition is accordingly disposed of.” The charge sheet allegations go to show that the petitioner is the son of the Sarpanch of the village and the husband of the de facto complainant requested the petitioner to erect street lights in Harijanawada with the funds of the Grampanchayat and also informed that snakes and scorpions were moving in the locality during night time. In view of the demand of the husband of the de facto complainant, the petitioner bore grudge against the husband of the de facto complainant and got foisted a case against him. In the above circumstances, on 27.07.2007 morning at about 6.00 AM when the de facto complainant Smt. Kommu Lakshmamma, w/o Peda Narasimha, 7th Ward member, resident of Pothireddipalli, went to the petitioner and requested him to relieve her husband from criminal case and then the accused abused her in the name of her caste and insulted her. After filing of the charge sheet, the same has been numbered as PRC No.48 of 2009 and the learned Judicial Magistrate of First Class, Nagarkurnool, passed orders on 14.09.2009 as follows. “Taken on file against the accused under Section 3(1)(x) of SC/ST (POA) Act. Issue NBW against the accused. Call on 02.11.2009.” Challenging the above referred order, this revision has been filed. Sri K. Sreenivas, learned counsel for the petitioner, submitted that the petitioner on earlier occasion approached this Court and filed a petition in Crl.P. No.7618 of 2008 praying to quash the FIR in Crime No.71 of 2007 and this Court, by order dated 25.11.2008, granted stay of arrest of the petitioner till filing of the charge sheet. It is also submitted that in the charge sheet the order passed by this Court in Crl.P. No.7618 of 2008, dated 25.11.2008, has been mentioned. His main submission is that the learned Magistrate while taking cognizance ought to have issued summons to the petitioner but straight away issued NBWs, even though the order passed by this Court dated 25.11.2008 is mentioned in the charge sheet. It is his further submission that since there was a direction from t[1]his Court not to arrest the petitioner till filing of charge sheet and filing of the charge sheet is not within the knowledge of the petitioner issuance of summons would have been sufficient to secure the presence of the petitioner before the Magistrate. It is also submitted that the learned Magistrate ought to have granted an opportunity to the petitioner to secure regular bail from the competent Court. It is also submitted that the order to issue process can be challenged under Section 482 Cr.P.C. In support of his contention he relied on a decision reported in N.N. Ponnappa v. State of Karnataka[1]. It is also his submission that sub-section (3) of Section 438 Cr.P.C. envisages that where a person has been granted anticipatory bail under Section 438 Cr.P.C and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person he shall issue a bailable warrant in conformity with the orders of the anticipatory bail under sub-section (1) of Section 438 Cr.P.C. It is his further submission that though the petitioner has not obtained anticipatory bail, but the order passed in quash proceedings i.e., in Crl.P. No.7618 of 2008 is similar to an order of anticipatory bail and therefore the learned Magistrate ought to have issued summons under sub-section(3) of Section 438 Cr.P.C. In support of his contention, he relied on a judgment reported in Puran Singh v. Ajit Singh[2]. It is also his submission that the powers to exercise revisional jurisdiction are very wide and it can be exercised to examine the whole question of the correctness, propriety or legality of any order. It is also his submission that the Hon’ble High Court of Jammu and Kashmir in case between Pir Ghulam Shah v. Pir Meerajuddin[3], observed that an order can be challenged not only with regard to legality or correctness but also with regard to propriety of an order. With regard to revisional powers and power to quash the proceedings under Section 482 Cr.P.C reliance has been placed in case between Madhu Limaye v. State of Maharashtra[4]. Learned counsel for the petitioner submitted that for any reason if the Court comes to a conclusion that the revision is not maintainable a direction may be given to the learned Sessions Judge to consider the bail application of the petitioner on the very same day. On the other hand, learned Additional Public Prosecutor submitted that the order passed by this Court in quash proceedings ordering stay of arrest of the petitioner was only till the date of filing of the charge sheet. It is further submitted that once the charge sheet has been filed the order in the quash proceedings become automatically inoperative. It is also submitted that in the same order this Court has specifically observed that the investigation and consequential steps on the basis of result of investigation shall go on. Thus the order in the quash proceedings is very clear and the petitioner cannot take advantage of the same after filing of the charge sheet. His further submission is that Section 204 Cr.P.C is very clear and the same authorizes the Magistrate to issue process to an accused and a warrant has to be issued in a warrant case. It is further submitted that it is the discretion of the Magistrate either to issue a warrant or summons and issuing of a warrant cannot be said to be illegal or improper. The points that arise for consideration are whether the revision is maintainable against the order of issuing process under Section 204 Cr.P.C and whether the impugned order is illegal, improper and liable to be set aside under Section 397 Cr.P.C. It is not in dispute that a case in Crime No.71 of 2007 of Thimmajipet Police Station was registered against the petitioner for the offence punishable under Section 3(1)(x) of the Act on 28.07.2007. The petitioner filed Crl. P. No.7618 of 2008 praying to quash the proceedings in Crime No.71 of 2007 and this Court, by order dated 25.11.2008, granted stay of arrest of the petitioner till filing of charge sheet. It is also not in dispute that the police after completion of investigation laid charge sheet against the petitioner for the offence punishable under Section 3(1)(x) of the Act. From the facts it appears that the petitioner is a son of the Sarpanch of the village and that the de facto complainant is also a ward member of Pothireddipalli village and that the husband of the de facto complainant seems to have requested the petitioner to erect street lights in Harijanawada with the funds of the Grampanchayat and also seems to have appraised him about the snakes and scorpions moving in that locality. It appears that on the report given by the petitioner herein a case was registered against the husband of the de facto complainant. The prosecution case is that on 27.07.2009 at about 6.00 AM when the de facto complainant approached the petitioner and touching his feet requested to leave her husband, the petitioner is alleged to have abused her in the name of her caste and insulted her. Admittedly the Sub-Divisional Police Officer, after completing the investigation, laid charge sheet against the petitioner under Section 3(1)(x) of the Act. It is also not in dispute that the petitioner had obtained stay orders in quash proceedings referred to above and obtained stay of arrest till filing of the charge sheet. The order of this Court makes it clear that the investigation and consequential steps on the basis of result of investigation shall go on. Thus, the order in the quash proceedings makes it clear that the stay of arrest shall be only till the date of filing of the charge sheet and the consequential steps on the basis of the result of investigation shall go on. Therefore it appears that the petitioner cannot take advantage of the same. Admittedly, the petitioner has not obtained any order of anticipatory bail probably in view of the bar under Section 18 of the Act. Whatever it may be, admittedly, there is no order granting anticipatory bail under Section 438 Cr.P.C. Merely because the petitioner had obtained an order of stay of arrest in quash proceedings the same cannot be treated as an order of anticipatory bail. Therefore, issuing of bailable warrant as required under sub- section(3) of Section 438 Cr.P.C does not arise. Issuing of a bailable warrant would arise only in case wherein the accused obtained anticipatory bail under sub-section (1) of Section 438 Cr.P.C. Now it has to be seen whether the learned Magistrate is justified in issuing NBW against the petitioner and whether the said order is revisable. Section 204 Cr.P.C is as follows. “S.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- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (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. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87.” Section 204 empowers a Magistrate to issue process against the accused provided upon consideration of the material placed before him i.e., either a report under Section 173 of Cr.P.C or the statements of the complainant or the witnesses if the Magistrate thinks that there is prima facie case for proceeding in respect of an offence he shall issue process against the accused. If it is a summons case, the Magistrate shall issue summons for the attendance of the accused under clause (a) of sub-section (1) of Section 204 Cr.P.C. Clause (b) of sub- section(1) of Section 204 Cr.P.C. empowers the Magistrate either to issue a warrant in a warrant case or if he thinks fit to issue summons to the accused. Thus it is the discretion of the Magistrate either to issue a warrant or summons in a warrant case. It is not in dispute that the Magistrate is empowered to issue NBW straight away in a warrant case. Even at the first instance the Magistrate can issue warrant in a warrant case. It is also settled law that while issuing process the Magistrate need not pass a detailed order. In N.N. Ponnappa v. State of Karnataka (1 supra), it was held that the order of the Magistrate to issue process against a person, not being an interlocutory order the same is amenable to revisional jurisdiction. Whether it is mandatory for a Magistrate deciding to proceed against an accused on taking cognizance of a non-bailable offence to issue bailable warrant in the first instance irrespective of the fact that the accused has not obtained anticipatory bail under Section 438 Cr.P.C came up for consideration before the High Court of Punjab and Haryana in Puran Singh v. Ajit Singh (2 supra), wherein it was held that in case where the person sought to be summoned as an accused has not been allowed anticipatory bail by the High Court or the Court of Session, the Magistrate has jurisdiction to issue NBW or, in other words, he is not mandatorily obliged to issue bailable warrant in the first instance. Learned counsel for the petitioner has relied on a decision reported in Pir Ghulam Shah v. Pir Meerajuddin (3 supra) in support of his contention that the High Court has wide powers to set aside an order simply on the ground that it is improper. In that case it was held that the High Court has ample powers even suo motu to call for and examine the record of any proceeding before any inferior Criminal Court situate within its local limits and satisfy itself as to the correctness, legality or propriety of any finding or order. The words used are not only legality or correctness but even the propriety of an order. No doubt the High Court has wide powers while exercising revisional jurisdiction but it is for the petitioner to show how the impugned order is illegal, incorrect or improper. It is settled law that the scope of revisional jurisdiction is very limited and only in case of any illegality or irregularity which require correction the revisional powers can be exercised. Revisional powers of the High Court could be exercised only to prevent miscarriage of justice and to correct injustice. The learned Magistrate has exercised his jurisdiction and I do not find any illegality or irregularity in the order of the learned Magistrate. He could have either issued a warrant or summons. The Magistrate has to apply his mind to the report and the documents sent along with the report and to decide whether any offence has been made out or not. He should first decide whether he should take cognizance or should not take cognizance of the offence. Once he takes decision to take cognizance then he has to look into the nature of the offence and to issue process. In a warrant case since he is empowered to issue either a warrant or a summons and once he exercises his powers to issue a warrant the same cannot be said to be illegal or improper. Therefore, I am of the view that there is no need to set aside the impugned order. Learned counsel for the petitioner submitted that this Court can exercise inherent powers under Section 482 Cr.P.C and grant relief to the petitioner. It is also submitted that if by any reason this revision is dismissed the petitioner may be permitted to file an application to recall NBW under Section 70(2) Cr.P.C. Since this is not a petition filed under Section 482 Cr.P.C. to exercise inherent powers of this Court, I am of the view that there is no need to exercise any powers under Section 482 Cr.P.C. However, this order does not prevent the petitioner from filing an application under Section 70(2) Cr.P.C or from surrendering before the Sessions Court and seeking regular bail. In view of the above discussion, I hold that the revision is not maintainable and the same is liable to be dismissed. Accordingly, the Criminal Revision Case is dismissed. ____________________ B. CHANDRA KUMAR, J. Date: 14.12.2009 Nsr [1] 1978 Cri.L.J. 1551 [2] 1985 Cri L.J. 897 [3] AIR 1964 Jammu and Kashmir 1 [4] AIR 1978 Supreme Court 47