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CASE NO.: Special Leave Petition (crl.)  96 of 2005

PETITIONER: S. K. Bhatt

RESPONDENT: State of U.P. and others

DATE OF JUDGMENT: 11/03/2005

BENCH: CJI R. C. Lahoti & G. P. Mathur

JUDGMENT: J U D G M E N T

O R D E R

       Feeling aggrieved by the remarks made by the High Court in the  judgment dated 5.11.2004, while allowing Criminal Misc. Writ Petition  No.  7218 of 2004, the Sessions Judge whose order was set aside, has filed the  present petition.   

On the basis of a report submitted by the police under Section  190(1)(b) Cr.P.C., the learned Chief Judicial Magistrate took cognizance of  the offence on 5.4.2004 and directed that summons be issued to the accused  for their appearance on 21.5.2004.  The accused did not appear on the date  fixed, and some other dates were fixed and finally on 31.7.2004 the learned  Chief Judicial Magistrate passed an order specifically recording that the  accused are absent and fixed 27.8.2004 for their appearance in Court.  A  Criminal Revision Petition was filed by the accused before the Sessions  Judge, Ghazipur which was dismissed on the ground that the order under  challenge was an interlocutory order and, therefore, the revision was barred  by virtue of Section 397(2) Cr.P.C.   The accused then preferred Criminal  Misc. Writ Petition in the High Court challenging the order dated 5.4.2004  passed by the learned Chief Judicial Magistrate and also the order dated  27.8.2004 passed by the learned Sessions Judge (petitioner herein).  The  High Court, after referring to four decisions of this Court in Amar Nath and  others vs. State of Haryana and another 1977 SCC(Cri) 585, Madhu Limaye  vs. State of Maharashtra 1978 SCC (Cri) 10,  Rajendra Kumar Sitaram  Pande and others vs. Uttam and another 1999 SCC(Cri) 393 and  V.C.  Shukla vs. State 1980 SCC (Cri) 695 held that an order summoning an  accused is not an interlocutory order and, therefore, the bar created by  Section 397(2) Cr.P.C.  would not operate.  The High Court accordingly set  aside the order dated 27.8.2004 passed by the learned Sessions Judge and  remanded the matter for deciding the revision on merits.  

The petitioner who had decided the Criminal Revision Petition on  27.8.2004 in his capacity as Sessions Judge is aggrieved by certain remarks  made against him in the order of the High Court.  The main plea taken in the  present Special Leave Petition is that the order dated 31.7.2004, wherein the  learned Chief Judicial Magistrate had only recorded that the accused are  absent and the case be posted for appearance of the accused on 27.8.2004,  was an interlocutory order and,  therefore, the bar created by Section 397(2)  Cr.P.C. would operate.  An English translation of the memorandum of  revision which was filed before the learned Sessions Judge has been filed as  Annexure P-3 and it shows that the accused had specifically written that they  were aggrieved by the order dated 31.7.2004 and also by the order taking  cognizance of the offence and summoning them.  The grounds of revision  also indicate that the accused had laid challenge to the order taking  cognizance of the offence and summoning them to face trial.  However, we

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do not want to express any concluded opinion on this question.

Having regard to the entire facts and circumstances of the case, we  consider it appropriate to dispose of the Special Leave Petition with the  direction to the petitioner to move an application before the High Court for  expunging the remarks by which he feels aggrieved.  If such an application  is filed, the High Court will decide the same in accordance with law, without  being influenced in any manner by any observation made in the present  order.