Recalling of summons is not permissible: Chhattisgarh high court

Page AFRHIGH COURT OF CHHATTISGARH BILASPURCRMP No. 216Order Reserved on : 08.07.2021Order Delivered on : 06 .08.2021Smt. Rachana Ghale W o Chaman Ghale Aged About 33 Years R o Plot No. 11 Block No. 16 Radhika Nagar Bhilai P.S. Supela Tahsil & District DurgPetitionerVersus 1.Chaman Ghale S o Radheshyam Ghale Aged About 32Years R o 11 12 Ispat Nagar Risali P.S. Newai Tahsil &District DurgRespondents For Petitioner: Mr. T.K. Tiwari AdvocateFor Respondent No. 1 to 3:Mr. Manish Upadhyay Adv.For State Res No. 4:Mr. Uddhav Sharma G.A.Hon ble Shri Justice Narendra Kumar VyasCAV Order1.The petitioner has filed this petition under Section 482 of theCr.P.C. against the order dated 15.10.2015inComplaint Case No. 5498 2015in which the learned Judicial Magistrate FirstClass has recalled the order dated 20.07.2015 of registrationof complaint rejected the application filed by complaint u s156(3) of Cr.P.C. further directed that application be treatedas complaint under Section 200 of Cr.PC and fixed the casefor complaint’s evidence before registration of the complaint. Page .The brief facts as projected by the petitioner in the complaintas well as in the Petition are that marriage of the petitionerwas solemnized with respondent No. 1 on 07.07.2007 atBhilai as per Buddhist customs. After marriage the petitionerwas residing at her matrimonial home with respondents No. 1to 3. Just after 3 to 4 days of marriage respondents No. 1 to 3started causing harassment to the petitioner for demand ofdowry making false and frivolous allegations against her. Thepetitioner was compelled to leave her matrimonial home anddriven out from her matrimonial home on 03.03.2008. TheRespondent No. 1 filed divorce petition before Family Court Durg but the application filed by respondent No. 1 against thepetitioner was dismissed on 28.07.2008. After dismissal of thesaid divorce petition respondents No. 1 to 3 approached thepetitioner and her parents tendered apology for their conductand for making false allegation and filing divorce petition.3.The petitioner and her family members accepted the requestof respondents No. 1 to 3 and again she was living with herhusband and in laws they again started causing physical andmental torture to the petitioner between the year 2008 to 2014many times. In the midnight of 01 02.11.2014 respondentsNo. 1 to 3 again badly assaulted the petitioner as a result ofwhich she sustained injuries at her head chest and mouth.When she was crying for her rescue respondents No. 1 to 3gagged her mouth forcefully by putting cloth in her mouth inorder to silent her. The petitioner called her parents on02.11.2014 went to police station and lodged report againstrespondents No. 1 to 3. Respondent No. 4 sent the petitionerfor medical examination in which injuries were found on herchest and other parts of her body. In spite of the medicalexamination and receiving the injury report respondent No. 4has not registered any offence against respondents No. 1 to 3.4.Learned counsel for the petitioner would submit that thelearned Judicial Magistrate First Class vide order dated20.07.2015 registered the complaint as the report was already Page received and thereafter issued notice for appearance of therespondents No. 1 to 3. He would further submit that thelearned Judicial Magistrate has committed mistake byrecalling its order therefore it is against the judgment ofHon ble the Supreme therefore the same is liable to bequashed. 5.This Court vide order dated 12.01.2016 issued notice torespondent No. 1 to 3 but no reply has been filed by them.The State respondent No. 4 has filed reply contending thatthis petition under Section 482 of the Cr.P.C. is notmaintainable as the process initiated by the learned trial courtis legal and justified and there is no abuse of process of law therefore this petition is liable to be dismissed. 6.Learned counsel for the petitioner would submit that thelearned trial court has already issued summon to thecomplainant and process was already been initiated vide itsorder dated 27.07.2015 and thereafter the matter was listedon 22.08.2015. The case was fixed for consideration on thereport submitted by the police and that matter was listed on15.10.2015 on that date the trial court recalled its order andhas rejected the report submitted by the police. The actiontaken by learned trial Court is amounting to recalling ofsummon which is not permissible in view of the judgmentpassed by Hon ble the Supreme Court.7.Learned counsel for the petitioner would refer to the judgmentof Hon ble the Supreme Court in Devendra KishanlalDagalia Vs. Dwarkesh Diamonds Private Limited & others1and would submit that the procedure adopted by the learnedJudicial Magistrate First Class directing to review recall is notpermissible under the Cr.P.C. as remedy lies against the saidorder is before High Court under Section 482 of Cr.P.C. orArticle 227 of the Constitution of India available torespondents No. 1 to 3.1(2014) 2 SCC 246 Page .Learned State counsel as well as learned counsel forrespondents No. 1 to 3 would support the order passed by thelearned Judicial Magistrate First Class. Learned State counselwould refer to Section 460 of Cr.P.C and would submit that theMagistrate has committed irregularities which do not vitiateproceedings therefore the order passed by the learnedJudicial Magistrate First Class is legal and justified which isnot liable to be interfered by this Court while exercising powerunder Section 482 of the Cr.P.C. It is necessary to extractSection 460 of the Cr.P.C. which is as under: “460. Irregularities which do not vitiateproceedings If any Magistrate not empoweredby law to do any of the following thingsto issue a search warrant under section 94to order under section 155 the police toinvestigate an offenceto hold an inquest under section 176to issue process under section 187 for theapprehension of a person within his localjurisdiction who has committed an offenceoutside the limits of such jurisdictionto take cognizance of an offence underclauseor clauseof sub sectionofsection 190to make over a case under sub sectionofsection 192 to tender a pardon under section 306to recall a case and try it himself undersection 410 or(i) to sell property under section 458 or section459 erroneously in good faith does that thing his proceedings shall not be set aside merely onthe ground of his not being so empowered.9.Three judges Bench of Hon ble the Supreme Court in AdalatPrasad Vs. Rooplal Jindal & others2 has examined thepower of Magistrate for recalling of process of summon atparagraph 15 of the judgment which is as under: “15. It is true that if a Magistrate takescognizance of an offence issues process withoutthere being any allegation against the accused orany material implicating the accused or incontravention of provision of Sections 200 & 202 2(2004) 7 SCC 338 Page the order of the Magistrate may be vitiated butthen the relief an aggrieved accused can obtainat that stage is not by invoking section 203 of theCode because the Criminal Procedure Codedoes not contemplate a review of an order.Hence in the absence of any review power orinherent power with the subordinate criminalcourts the remedy lies in invoking Section 482 ofCode. ”10.Hon ble the Supreme Court in Devendra Kishanlal Dagalia(Supra) at paragraph 10 held as under: “10. The aforesaid provisions make it clear thatthe Magistrate is required to issue summons forattendance of the accused only on examination ofthe complaint and on satisfaction that there issufficient ground for taking cognizance of theoffence and that it is competent to take suchcognizance of offence. Once the decision is takenand summon is issued in the absence of a powerof review including inherent power to do so remedy lies before the High Court under Section482 Cr. P.C or under Article 227 of the Constitutionof India and not before the Magistrate. ”11.Learned counsel for the State as well as respondents No. 1 to3 would submit that the procedure followed by learned JudicialMagistrate First Class is correct which is not liable to beinterfered by this Court.12.From perusal of Section 460 of the Cr.P.C. it is perceptiblethat the irregularities which do not vitiate proceedings havebeen enumerated in this Section and recall of order byMagistrate for whatsoever reason does not fall within thisSection. If any Magistrate is not empowered by law to recallits order therefore the impugned order dated 15.10.2015 isnon est illegal and deserves to be quashed by this Court. Assuch the order dated 15.10.2015 passed by the learnedJudicial Magistrate First Class is quashed.13.As an upshot of the above discussion and considering the lawlaid down by Hon ble the Supreme Court the order dated15.10.2015 so far as recalling of the summon rejection of thereport submitted by the police is quashed and subsequentdirection for recording of preliminary evidence of the Page complainant for registration of FIR is also illegal and the sameis liable to be and is hereby quashed.14.It is held that once the complaint has been registered summon has been issued it cannot be recalled. Theregistration of complaint will not preclude right of respondentsNo. 1 to 3 to challenge the issuance of process by the JudicialMagistrate First Class further proceeding initiated by theJudicial Magistrate First Class including order dated15.10.2015 before appropriate forum without being influencedby any of the observations made by this Court.15.With the aforesaid observations and directions this petition isallowed. Sd (Narendra Kumar Vyas)JudgeArun 

Summary: Judicial Magistrate First Class directing to review/ recall a summon is not permissible under the Cr.P.C. as remedy lies against the said order is before High Court under Section 482 of Cr.P.C. or Article 227 of the Constitution of India. This was held by Hon’ble Justice Narendra Kumar Vyas in the case of Smt. Rachana Ghale Vs. Chaman Ghale [CRMP No. 28 of 2016] on the 06th of August, 2021 before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, the marriage of the petitioner was solemnized with respondent No. 1 on 07.07.2007 at Bhilai as per Buddhist customs. After marriage, the petitioner was residing at her matrimonial home with respondents No. 1 to 3. Just after 3 to 4 days of marriage, respondents No. 1 to 3 started causing harassment to the petitioner for demand of dowry making false and frivolous allegations against her. The petitioner was compelled to leave her matrimonial home and driven out from her matrimonial home on 03.03.2008. The Respondent No. 1 filed divorce petition before Family Court, Durg, but the application filed by respondent No. 1 against the petitioner was dismissed on 28.07.2008. After dismissal of the said divorce petition, respondents No. 1 to 3 approached the petitioner and her parents, tendered apology for their conduct and for making false allegation and filing divorce petition. The petitioner and her family members accepted the request of respondents No. 1 to 3 and again she was living with her husband and in-laws, they again started causing physical and mental torture to the petitioner between the year 2008 to 2014 many times. In the midnight of 01-02.11.2014, respondents No. 1 to 3 again badly assaulted the petitioner as a result of which, she sustained injuries at her head, chest and mouth. When she was crying for her rescue, respondents No. 1 to 3 gagged her mouth forcefully by putting cloth in her mouth in order to silent her. The petitioner called her parents on 02.11.2014, went to police station and lodged report against respondents No. 1 to 3. Respondent No. 4 sent the petitioner for medical examination, in which, injuries were found on her chest and other parts of her body. In spite of the medical examination and receiving the injury report, respondent No. 4 has not registered any offence against respondents No. 1 to 3. Learned counsel for the petitioner would submit that the learned Judicial Magistrate First Class vide order dated 20.07.2015 registered the complaint as the report was already received and thereafter, issued notice for appearance of the respondents No. 1 to 3. He would further submit that the learned Judicial Magistrate has committed mistake by recalling its order, therefore, it is against the judgment of Hon’ble the Supreme, therefore, the same is liable to be quashed. The counsel for the petitioner submitted that, the learned trial court has already issued summon to the complainant and process was already been initiated vide its order dated 27.07.2015 and thereafter the matter was listed on 22.08.2015. The case was fixed for consideration on the report submitted by the police and that matter was listed on 15.10.2015, on that date the trial court recalled its order and has rejected the report submitted by the police. The action taken by learned trial Court is amounting to recalling of summon, which is not permissible in view of the judgment passed by Hon’ble the Supreme Court. The counsel for the respondents however submitted that, he Magistrate has committed irregularities which do not vitiate proceedings, therefore, the order passed by the learned Judicial Magistrate First Class is legal and justified, which is not liable to be interfered by this Court while exercising power under Section 482 of the Cr.P.C. The learned judge heard the submissions of both the parties and relied on the judgement in Adalat Prasad Vs. Rooplal Jindal &amp; others [(2004) 7 SCC 338] wherein it was held that, “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 provision of Sections 200 &amp; 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. ”.