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:
JUDGMENT

SANTOSH HEGDE,J.

Ranjit Kumar Sr. Advocate i/b Temple Law for the Petitioners.

Chinmoy Khaladkar i/b S.K.Nandy , A.P.Mayee for the respondents.

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
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.
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 Chinmoy Khaladkar, 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.
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
applications and petitions filed by the accused.

With the above observations this appeal fails and the same
is dismissed.