17 September 2004
Supreme Court
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SUHBRAMANIUM SETHURAMAN Vs STATE OF MAHARASHTRA

Case number: Crl.A. No.-001253-001253 / 2002
Diary number: 13953 / 2001
Advocates: Vs RAVINDRA KESHAVRAO ADSURE


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CASE NO.: Appeal (crl.)  1253 of 2002

PETITIONER: Subramanium Sethuraman

RESPONDENT: State of Maharashtra & Anr.

DATE OF JUDGMENT: 17/09/2004

BENCH: N. Santosh Hegde, S.B.Sinha & Tarun Chatterjee

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

       This appeal is preferred by accused No.4 in Criminal  Complaint Case No.2209/S/1997 pending before the Metropolitan  Magistrate, 33rd Court at Ballard Pier, Bombay challenging an  order made by the High Court of Judicature at Bombay in a  revision petition filed by the 2nd respondent herein whereby the  High Court allowed the revision petition and set aside the order of  discharge made by the trial court.   The facts necessary for the disposal of this appeal are as  follows:         The 2nd respondent herein lodged a complaint before the  Additional Chief Metropolitan Magistrate for offence punishable  under Section 138 of the Negotiable Instruments Act against the  appellant herein and four others which included a Company and its  Directors. It is not disputed that the appellant herein was one of the  Directors of the Company. The complaint in question was filed in  December, 1996 and after following the procedure laid down in  Chapter XV and XVI of the Code of Criminal Procedure, 1973, the  trial court issued summons to the named accused in the complaint.  On receipt of the complaint, the 1st accused Company challenged  the same before the very same Magistrate on the ground that the  Magistrate could not have taken cognizance of the offence because  of the defective statutory notice. Therefore, the Company sought  for its discharge. The said application came to be rejected.  Thereafter, the second application for discharge was filed by the  Company on the very same ground which was allowed by the  Magistrate following the judgment of this Court in the case of  K.M.Mathew vs. State of Kerala & Anr. (1992 (1) SCC 217)  which judgment had held that it was open to the Magistrate taking  cognizance and issuing process to recall the said process in the  event of the summoned accused showing to the court that the  issuance of process was legally impermissible. In this process, the  Magistrate came to the conclusion that the statutory notice issued  by the complainant was not in conformity with the requirement of  law.         Aggrieved by the said order of discharge made by the  learned Magistrate, the complainant challenged the same by way of  a revision petition before the learned Sessions Court on the ground  that the learned Magistrate had no power to review his earlier order  because of the Bar under Section 362 of the Cr.P.C. The Sessions  Court accepted the contention of the appellant and allowed the  revision petition without going into the merits of the legality of the  statutory notice.         The Company thereafter challenged the said order of the  learned Sessions Judge by way of a criminal writ petition filed

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under Article 227 of the Constitution of India before the High  Court of Judicature at Bombay. The High Court by its order dated  20th December, 2000 rejected the said petition on the ground that  once the Magistrate records the plea of the accused and the  accused pleads not guilty then the Magistrate is bound to take all  such evidence as may be produced in support of the prosecution  and there is no provision under the Cr.P.C. enabling the Magistrate  to recall the process and discharge the accused after recording the  plea of the accused. It is to be noted that there is no dispute in  regard to the fact that the plea of all the accused was recorded by  the Magistrate on 1.11.1999.         The above said order of the High Court dismissing the  criminal writ petition was challenged in a special leave petition  bearing No. SLP(Crl.) No.429/2001 by the Company before this  Court. This Court rejected the SLP summarily on 5.2.2001 by the  following order:         "Mr.Gopal Subramanian addressed  arguments for some time. After noticing the  observations made by this Court, he  requested for permission to withdraw this  SLP without prejudice (to) his contentions  (to) be raised at the appropriate stage. We  therefore, dismiss this SLP as withdrawn."

       After withdrawing the SLP, one would have accepted the  accused in the case to co-operate with the trial court in concluding  the trial at the earliest but that was not to be. The second round of  litigation challenging the issuance of process was then initiated by  the present appellant herein who is none other than the Executive  Director of the accused-Company which had earlier fought the  litigation right up to this Court. In the fresh application filed before  the learned Magistrate, the appellant in his turn contended that the  statutory notice issued was contrary to law, hence, no cognizance  could have been taken by the learned Magistrate nor the process   could have been issued. This application was filed within 10 days  after the rejection of the above said SLP by this Court. A perusal of  the averments made in the application for discharge by the  appellant in the second round of litigation shows that the said  application was also on the same grounds as was taken by the  Company when it filed the application for discharge. Surprisingly,  this application of the appellant came to be allowed by the  Magistrate holding the statutory notice issued prior to filing of the  complaint was not in accordance with law and in view of the  judgment of this Court in the case of K.M.Mathew  vs. State of  Kerala & Anr. (1992 (1) SCC 217) it was open to him to recall the  order of issuance of process. In that process, he allowed the  application of the appellant for discharge.          Being aggrieved by the said order of the learned Magistrate,   the complainant filed a criminal revision petition before the High  Court of Judicature at Bombay which by the impugned order  reiterated its earlier view that it was not open to the Magistrate to  order the discharge of an accused once his plea has been recorded  and on that basis it allowed the revision petition of the complainant  keeping open the question of validity of the statutory notice to be  raised at the trial.         It is against the said order of the High Court, the appellant is  before us in this appeal.         It is to be noted that when this matter came up for  preliminary hearing by an order dated 6th September, 2002, this  Court observed that the decision rendered in K.M.Mathew’s case  (supra) may require reconsideration, therefore, this appeal was  referred to a Bench of 3-Judges. At this stage itself, it may be  relevant to mention that the correctness of the judgment in  K.M.Mathew’s case (supra) came up for consideration before a 3- Judge Bench of this Court in another case of Adalat Prasad vs.

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Rooplal Jindal & Ors. (2004 (7) Scale 137). In the said case of  Adalat Prasad (supra), a 3-Judge Bench did not agree with the law  laid down by this Court in  K.M.Mathew’s case.            

Shri Ranjit Kumar, learned senior counsel appearing for the  appellant firstly contended that principles laid down by this Court  in Adalat Prasad’s case (supra)  may require  reconsideration   because in Adalat Prasad’s case  this Court proceeded  on the  basis  that the same was a summons case  but in reality it was a  warrant case covered by Chapter XIX of the Code. He nextly  contended  that the High Court in this case erred in coming to the  conclusion  that once the plea of the accused is  recorded  the Trial  Court did have the jurisdiction to entertain an application  for  discharge in a summons case. He submitted since very foundation  of the complaint being based  on an illegal  statutory  notice, the  Trial Court  could not have taken cognizance  of the offence and  issued summons  and having erroneously  done so it had the power  to recall the summons and or entertain  an application for discharge   of an accused  person.  He also contended  the fact that Company’s  petition  for discharge has been rejected right up to this Court did  take away  appellant’s right  to separately agitate his grievance.          Shri  Chinmay Khaladhar, learned counsel appearing for the  respondent contended that though the case considered by this  Court in Adalat Prasad’s case  involved  an offence  which was  triable as a warrant case, this Court actually  considered the power  of the criminal courts to recall its earlier orders bearing in mind the  prohibition contained in Section 362 of the Code. He also  submitted the fact that in Adalat Prasad’s case involved a warrant  case and in K.M.Mathew’s case involved a summons case did not  make any difference, so far as the correctness of law considered   by this Court  in Adalat Prasad’s case. He also submitted  that  the  appeal  in hand being one triable  as a summons case, the Code has  not contemplated a stage of discharge and once the plea of not  guilty is recorded the appellant has to face a trial as contemplated  in Chapter XX of the Code. He pointed out the appellant being one  of the Directors of the accused company and a co-accused, is using   dilatory  tactics  to delay the trial in spite of the fact  the core issue   involved in this case has already been decided by this Court in the  earlier S.L.P.  filed by the company.          Having considered the argument of the learned counsel for  the parties, we are of the opinion that the argument of the learned  counsel for the appellant that the decision of this Court in Adalat  Prasad’s case requires reconsideration cannot be accepted. It is  true that the case of Adalat Prasad pertained to a warrant case  whereas in Mathew’s case the same pertained to a summons case.  To this extent, there is some difference in the two cases, but that  does not, in any manner, make the law laid down by this Court in  Adalat Prasad’s case a bad law.  .         In Mathew’s case this Court held that consequent to a  process issued under Section 204 by the concerned Magistrate it is  open to the accused to enter appearance and satisfy the court that  there is no allegation in the complaint involving the accused in the  commission of the crime. In such situation, this Court held that it is  open to the Magistrate to recall the process issued against the  accused. This Court also noticed the fact that the Code did not  provide for any such procedure for recalling the process. But  supported its reasoning by holding for such an act of judicial  discretion no specific provision is required.         In Adalat Prasad’s case, this court considered the said view  of the court in K.M.Mathew’s case and held that the issuance of  process under Section 204 is a preliminary step in the stage of trial  contemplated in Chapter XX of the Code. Such an order made at a  preliminary stage being an interlocutory order, same cannot be  reviewed or reconsidered by the Magistrate, there being no  provision under the code for review of an order by the same Court.

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Hence, it is impermissible for the Magistrate to reconsider his  decision to issue process in the absence of any specific provision to  recall such order. In that line of reasoning this Court in Adalat  Prasad’s case held :  "Therefore, we are of the opinion that the  view of this Court in Mathew’s case  (supra) that no specific provision is  required for recalling and issuance order  amounting to one without jurisdiction,  does not laid down the correct law".          From the above, it is clear that the larger Bench of this Court  in Adalat Prasad’s case did not accept the correctness of the law  laid down by this Court in K.M.Mathew’s case. Therefore, reliance  on K.M.Mathew’s case by the learned counsel appearing for the  appellant cannot be accepted nor can the argument that Adalat  Prasad’s case requires reconsideration be accepted.                The next challenge of the learned counsel for the appellant  made to the finding of the High Court that once a plea is recorded  in a summons case it is not open to the accused person to seek a  discharge cannot also be accepted.   The case involving a summons  case is covered by Chapter XX of the Code which does not  contemplates a stage of discharge like Section 239 which provides  for a discharge in a warrant case. Therefore, in our opinion the  High Court was correct in coming to the conclusion once the plea  of the accused is  recorded under Section 252 of the Code the  procedure contemplated under Chapter XX has to be followed  which is to take the trial to its logical conclusion.         As observed by us in Adalat Prasad’s case the only remedy  available to an aggrieved accused to challenge an order in an  interlocutory stage is the extraordinary  remedy under Section 482  of the Code and not by way of an application to recall the  summons  or to seek discharge which is not contemplated in the  trial of a summons case.          The learned counsel for the appellant then sought leave of  this Court to approach the High Court by way of 482 petition   questioning  the issuance  of process by the Magistrate.  The same  was very strongly opposed by the learned counsel  for the  respondents who contended  that the complaint in this case was  filed as far back  as 24th of December, 1996  and though there was  a direction earlier for an early disposal  of the trial, appellant and  the other accused have successfully  managed to keep the trial in  abeyance  by initiating  one proceeding after the another even up to  this Court.  He submitted  both this Court as well as the High Court  in the earlier proceedings has left the question of validity of  statutory notice to be considered at the trial but the accused   persons including the appellant herein are time and again raising  the same issue with a view to delay the trial, hence no such  permission  as sought for by the appellant should be granted.           We see that this Court while dismissing earlier S.L.P. as  withdrawn  had left the question  of legality of the notice open to  be decided at the trial.  Therefore, legitimately the appellant  should raise this issue to be decided at the trial. Be that as it may,  we cannot prevent an accused person from taking recourse to a  remedy which is available in law. In Adalat Prasad’s case  we  have  held  that  for an aggrieved person the only course available  to challenge the issuance of process under Section 204 of the  Code is by way of  a petition  under Section 482 of the Code.   Hence, while  we do not  grant any permission to the appellant  to  file a petition under Section 482, we cannot also deny him the  statutory right available  to him in law.  However, taking into  consideration the history of this case, we have no doubt  the  concerned court entertaining the application will also take into  consideration the objections i.e. raised  by the respondent in this  case as to delay  i.e. being caused by the entertainment of

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applications and petitions filed by the accused.         With the above observations this appeal fails and the same  is dismissed.