M S B PRASAD Vs. K M SHARMA

JUDGEMENT

(1.) This petition is filed under Section 482 of theCode of Criminal Procedure (Code for short) against an order dated 4.6.92 ofthe learned M.M. by which he has summoned the petitioners under Section500 read with Section 34 IPC.

(2.) Notice of this petition was issued to the respondent. There wasan interim order of stay. I have heard arguments advanced by learnedCounsel for the parties. There is a direct ruling now of Hon'ble theSupreme Court in the case of K.M. Mathew v. State of Kerala and AnotherJT1991(4) SC 464. Fortunately that was also a case in which the learnedMagistrate had summoned the accused person under Section 500 IPC. Therefore, there is absolutely no distinction between the present case and that case.In that case an application was made before the Magistrate on behalf of oneof the accused person that assuming the allegations in the complaint to betrue, no offence was made out against that accused. The Magistrate dropped the proceedings against that accused. The complainant took up thematter in revision. to the High Court. The High Court observed thatMagistrate had no power to drop the proceedings against the accused at aninterim stage. It was further observed that Magistrate was bound to recordthe evidence adduced on behalf of prosecution and only thereafter when theevidence was complete, the Magistrate after hearing arguments could acquitthe accused. The Hon'ble Supreme Court in these circumstances observedas under:

(3.) The above quoted authority of Supreme Court clearly points outthat the Magistrate even after summoning an accused has power to vary orrecall the order of summoning if it can be pointed to him that no case wasmade out against the accused person. The situation in the present case isalso the same. However, learned Counsel for the petitioner contends that ifthis argument was accepted then Section 482 becomes absolutely redundantand the High Court will have no jurisdiction to pass any order if the interestof justice so required in a particular case. This argument has been mentioned simply to be rejected because it goes against the very verdict of Hon'blethe Supreme Court. It has in most unambiguous language pointed out thatMagistrate retains the power to recall or vary the order of summoning passedby him earlier. I see no reason why in that situation such an argumentshould be accepted. In this situation there is no way except to dismiss thispetition which is accordingly dismissed. However, the petitioner will be atliberty to approach learned Magistrate for varying or recalling the order ofsummoning.