O P SINGHI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) I have heard Mr. A. P. Chatterjee, the learned advocate appearing for the petitioners and the learned Advocate -General appearing for the State and have examined the records of the case and I am of opinion that the revisional application should be dismissed.

(2.) THE facts of the case, shorn of such details as are not necessary for the present purpose, are that on receipt of a complaint filed by the respondent No. 2 against the petitioners and two others, the learned District Magistrate, without examining the complainant or his witnesses, decided, by his order dated 5th Aug., 1977, to hold enquiry and fixed 17th Aug., 1977, as the date therefor, but on the date so fixed, that is on 17th Aug., 1977, the learned District Magistrate by order transferred the case to another Magistrate for proceeding according to law. The transferee Magistrate on receipt of the complaint fixed 23rd Aug., 1977 for the examination of the complainant and his witnesses and after examining them on several dates, the learned Magistrate issued process against the petitioners and two others under Section 323 of the Indian Penal Code. The petitioners have come up in revision against this order of the learned Magistrate issuing process against them.

(3.) IN order to appreciate the first objection raised by the learned Advocate -General it is necessary to state that after process was issued by the learned Magistrate requiring the petitioners to appear before him on 1st April, 1978, the petitioners on that date filed applications before the learned Magistrate through their lawyers praying that another date be fixed for their appearance as they were not in a position to appear on that date due to various pre -occupations and other reasons and that prayer was allowed and 6th June, 1978 was fixed for their appearance in Court, But on 5th June, 1978, the petitioners moved this Court in revision and further proceeding in this case before the Magistrate was stayed. The learned Advocate -General has, therefore, urged that the revisional application is not maintainable in as much as the accused -petitioners have not surrendered to the process of the Court below and the learned Advocate -General has relied on the decision of the Calcutta High Court in Lakshmi Kanta Sen v. State ((1971) 75 Cal WN 601). In that case Talukdar, J., sitting singly, has observed that the rule of practice "that the accused shall surrender to the processes of the Court below before being entitled to invoke the revisional jurisdiction of the High Court is a wholesome and well -known rule of practice which has assumed a sanctity imparted to it by an imprimatur of judicial decisions" and should not be deviated from. But, as Talukdar, J. has himself pointed out, and in my view rightly, there is no such rule of law nor any absolute rule of practice that a person summoned to appear must appear and submit to the process of the Court below before he can invoke the revisional jurisdiction. I am aware of this rule of practice of the Calcutta High Court, but I do not know this to be an inflexible rule of universal application and I am of opinion that rigorous application of this rule, without consideration to the facts and circumstances of a case, may result in flagrant failure to administer justice in deserving cases on the ground of technicalities. If in a case any process has been issued by the Court illegally or without jurisdiction and the High Court feels that justice requires that such an illegal process should be cancelled or quashed, then it is difficult to understand what further principle of justice should invariably require that the person concerned must submit and surrender to such an illegal process before hie can be heard to pray for justice and be administered justice by quashing such illegal process.