RAJENDRA KUMAR SITARAM PANDE Vs. UTTAM

JUDGEMENT

(1.) The accused persons in a complaint case are the appellants and in this appeal, the Judgment of the Nagpur Bench of Bombay High Court in Criminal Application No. 376 of 1994 is under challenge. By the impugned Judgment, the High Court came to the conclusion that the order of the Judicial Magistrate, First Class, Amravati dated 16-8-1991, issuing process was only an interlocutory order and was not amenable to the jurisdiction of the Sessions Judge under Section 397 of the Cr. P.C. and therefore, the Sessions Judge committed error in interfering with the said order of the Magistrate, directing issuance of process. The High Court however also observed that it would be open for the Judicial Magistrate to recall the order of issuing process, if satisfied, in accordance with the Judgment of this Court in K. M. Mathew v. State of Kerala, AIR 1992 SC 2206.

(2.) On the basis of a complaint, filed by the Respondent No. 1 alleging inter alia that the accused persons made a false complaint to the Treasury Officer, Amravati, containing false that the complainant had come to office in a drunken state and abused the Treasury Officer and thereby have committed criminal offence punishable under Section 500 read with Section 34, I.P.C. the Magistrate postponed the issue of process against the accused and directed the Treasury Officer to submit a report under sub-section (1) of Section 202 of the Code of Criminal Procedure. After receipt of the said report from the Treasury Officer, the Magistrate was of the opinion that sufficient material exist for issuance of process and accordingly issued summons against the accused persons under Section 500 read with Section 34, I.P.C. This order of the Magistrate dated 16-8-1991 was challenged by the accused persons in a revision before the learned Sessions Judge. Learned Sessions Judge came to the conclusion that the Magistrate having himself directed for an inquiry under Section 202, on receipt of the inquiry report from the Treasury Officer, was not justified in discarding the same. On the basis of the aforesaid inquiry report and the allegations in the complaint, the Sessions Judge came to the conclusion that the case is one covered by exception 8 of Section 400, I.P.C. and, therefore, issuance of process itself is an abuse of process. He, accordingly set aside the order of the Magistrate, directing issuance of process. against the aforesaid revisional order of the learned Sessions Judge, the complainant moved the High Court, invoking its jurisdiction under Section 482 of the Code of Criminal Procedure. The High Court came to the conclusion that the order directing issuance of process being an interlocutory order, the Sessions Judge has no jurisdiction under Section 397 to interfere with the same and accordingly set aside the order of the learned Sessions Judge.

(3.) Mr. Lalit, learned counsel, appearing for the appellants submitted that the order of the Magistrate, directing issuance of process cannot be held to be an interlocutory order not amenable to the revisional jurisdiction under Section 397 of the Code of Criminal Procedure. He further contended that when the allegations in the complaint read with the report of the Treasury Officer obtained from him pursuant to an inquiry made under sub-section (1) of Section 202, clearly bring out the case under exception 8 to Section 400, the High Court in exercise of its inherent jurisdiction under Section 482 ought not have interfered with the order of the Sessions Judge, passed in revisional jurisdiction. The learned counsel also submitted that even if the remedy of approaching the Magistrate by the accused under Section 205 for recalling the process already issued is available in terms of the judgment of this Court in Mathew's case, but the matter being present in this Court itself, this Court may consider the averments made in the complaint petition to find out whether any offence is made out and then would pass appropriate order. Mr. Deshpande, the learned counsel, appearing for the respondent, on the other hand contended that the direction given by the High Court is fully justified in the facts and circumstances of the case and no interference at all is called for under Article 136 of the Constitution of India.