DAVENDER KUMAR Vs. ANIL KUMAR

JUDGEMENT

(1.) THIS petition under section 482 of the Code of Criminal Procedure, 1973 (Crpc) is directed against an order dated 19th May, 2004 passed by the learned additional Sessions Judge (ASJ), New Delhi dismissing the Criminal Revision No. 2/2004 filed by the petitioner herein. By the impugned order the learned ASJ declined to interfere with the summoning order dated 24. 4. 1998 passed by the learned Metropolitan Magistrate (MM) on a complaint filed by the Respondent No. 1 herein against the petitioner under Sections 406/420/506 read with Section 34 ipc.

(2.) THE learned ASJ declined to interfere with the summoning order of the MM not on merits but on the ground that it was an interim order and not a judgment. The learned ASJ relied relying on the judgment of Supreme Court in k. M. Mathew v. State of Kerala 1992 SC 2206 in which it was held that the appropriate remedy for a person aggrieved by a summoning order would be to approach the Magistrate for its recall. Learned Counsel for the petitioner in the first instance submits that the said decision in K. M. Mathew has been overruled by a later decision of the Supreme Court in Adalat Prasad v. Rooplal jindal AIR 2004 SC 4674 in which it has been held that the only remedy available to a person aggrieved by a summoning order is to file a petition under section 482 Crpc. He accordingly submits that since learned ASJ has not dealt with the merits of the petition the matter should be remanded to learned ASJ for a fresh decision on merits.

(3.) AT this stage learned Counsel for the respondent submits that even if the summoning order were not an interim order, it would be open to the petitioner to challenge it in a petition under Section 482 Crpc and therefore the respondent will have no objection to this Court examining the merits of the summoning order in these proceedings. In view of this submission, there is no need for this court to remand the matter to the learned ASJ. Learned counsel for the petitioner has been heard on the merits of the summoning order dated 24th April 1998 passed by the learned MM.