Supreme Court of India

Subramanium Sethuraman vs State Of Maharashtra & Anr on 17

September, 2004
Author: S Hegde
Bench: N. Santosh Hegde, S.B.Sinha, Tarun Chatterjee
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 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 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. 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.

Delhi High Court

R K Aggarwal vs Brig Madan Lal Nassa & Anr on 13 June, 2016

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 1507/2015 & Crl.M.A. Nos.5548-5549/2015, 8630/2015

Date of Decision: June 13th, 2016

R K AGGARWAL ..... Petitioner

Through Mr.K.K. Manan, Sr. Adv. with
Ms.Anjali Rajput, Adv., Mr.Nipun
Bhardwaj, Adv. & Mr.Ankush
Narang, Adv.
versus

BRIG MADAN LAL NASSA & ANR ..... Respondents

Through Mr.Meet Malhotra, Sr. Adv. with

Mr.Prateek Dahiya, Adv. for R-1.
Mr.Kamal Kumar Ghai, APP for the
State.
SI Kuldeep Yadav, PS Connaught
Place

AND

+ CRL.M.C. 1527/2015 & Crl.M.A. Nos.5589/2015, 8633/2015

PRABHAT RANJAN DEEN ..... Petitioner

Through Mr.K.K. Manan, Sr. Adv. with

Ms.Anjali Rajput, Adv., Mr.Nipun
Bhardwaj, Adv. & Mr.Ankush
Narang, Adv.
versus

BRIG MADAN LAL NASSA & ANR ..... Respondents

Through Mr.Meet Malhotra, Sr. Adv. with

Mr.Prateek Dahiya, Adv. for R-1.

Crl.M.C.Nos.1507/15 & 1527/15 Page 1 of 7

Ms.Manjeet Arya, APP for the State.
SI Kuldeep Yadav, PS Connaught
Place.

CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.

1. The present petitions have been filed under Sections 482 Cr.P.C. seeking to

invoke the inherent powers of this Court to set aside/quash the order dated
31.01.2015 passed by Sh.Satvir Singh Lamba, MM, Patiala House Courts, New
Delhi and to further direct the Trial Court not to read the evidence adopted by the
complainant against the present petitioners and quash the Trial Court proceedings
qua the petitioners in Complaint Case Nos.:469/1/06 under Section
500/501/502 IPC pending before the Trial Court.

2. The facts of the case in nutshell are that the complaint in question dated
06.05.2002 was filed by the complainant alleging that Janta Express, a Hindi Daily
newspaper published a story on 15.03.2002 with date line Lucknow 14 March,
2002 authored by the petitioner/Prabhat Ranjan Deen concerning tragic deaths of
some youths at Army Recruitment Centre, Lucknow in septic tank accident. It was
alleged in the complaint that to sensationalize the said story, knowingly false
malicious and baseless allegations against the complainant were leveled in the
story in order to defame him and his family, smearing his good name by not only
connecting him with the so call corruption in MES but also dubbing him as anti-
national by falsely and maliciously asserting that the complainant was caught
red handed for the charge of supplying Arms to the Kashmiri Militants. It was
further stated in the said story that the complainant while serving as Chief
Engineer MES was arrested at Jammu Airport with Rs.28 lakhs cash on the charge
of supplying arms to Kashmiri militants and was still undergoing imprisonment.
The caption of the story read: 'AATANKIYON KO HATIYAR SUPPLY
KARNEY WALAY BRIG. KAY BETAY PER THA RKAHRAKHAO KA
ZIMMA', which was alleged to be defamatory.

3. It was further alleged that the publication of the said story was false and
baseless and malicious assertions made in the said story has defamed the
complainant causing him tremendous loss of reputation and tarnished his image
and lowered him in the estimation of others causing mental agony to him and his
family members.

4. It was further alleged that the said story was authored by the petitioner/ Prabhat
Ranjan Deen and printed by the petitioner/R.K.Aggarwal without verifying the
truth of the allegations contained in the publication which were false, malicious
and defamatory.

5. Based on the presummoning evidence, the Trial Court vide order dated
08.01.2007 opined that there is prima facie material on record to summon all the
accused under Section 500 IPC as the alleged publication Ex.CW1/A was prima
facie defamatory.

6. Vide order dated 27.11.2012, at the stage of recording of statement of accused,

it was observed that notice under Section 251 Cr.P.C. was inadvertently not served
upon the accused before the commencement of complainant's evidence as the
matter was advertently being listed for recording of pre-charge evidence despite
the fact that the matter pertains to commission of an offence for which the
procedure of summons trial is to be followed and no pre charge evidence is to be
recorded. Thus, the matter was fixed for consideration of notice under Section
251 Cr.P.C. on 17.12.2012. Thereafter arguments were heard in the matter on
procedural irregularity on service of notice of accusation under Section
251 Cr.P.C. on the accused persons before recording of evidence. The said issue
was decided by the Trial Court vide order dated 01.04.2014 where it was opined
that non service of notice of accusation upon the accused under Section
251 Cr.P.C.would not vitiate the trial as the accused persons were duly represented
by their counsels who had not only cross examined the complainant at length on
seven dates of hearing but had also preferred a quashing petition under Section
482 Cr.P.C. for getting the present proceedings quashed. Thereafter the matter was
fixed for recording the statement of accused. At that stage, the learned counsel for
the petitioners argued that there was no incriminating evidence against the accused
persons in the present case. Hence, there was no need to record the statement of
accused persons under Section 313 Cr.P.C. It was submitted on behalf of accused
persons that after the summoning of accused in the present case, neither any new
evidence had been led on behalf of the complainant nor the documents were
exhibited in the presence of accused persons. Hence, no new incriminating
evidence had been brought on record at the stage of post summoning evidence
during the trial. Thus, it was prayed that the petitioners be discharged/acquitted.

7. The Trial Court observed that the petitioners were summoned for the offence
under Section 500 IPC vide order dated 08.01.2007 and vide order dated
02.05.2011, the complainant was permitted to adopt his pre-summoning evidence
as evidence for the further prosecution of the present case. Thereafter the
complainant and his witnesses were duly cross-examined and thus the
petitioners/accused cannot seek discharge/acquittal upon the conclusion of post
summoning evidence on behalf of the complainant. The Trial Court further
observed that the case involved the summons case which is covered by Chapter
XX of Cr.P.C. which does not contemplate a stage of discharge like Section
239 which provides for the discharge in a warrants case. Thus, the objections of
the petitioners/accused were rejected and the matter was put up for recording the
statement of accused under Section 313 Cr.P.C. to explain the circumstances
appearing in the evidence against them.

8. I have heard the learned counsel for the parties and gone through the entire
record.

9. So far the contention of the petitioner regarding non-framing of notice

under Section 251 Cr.P.C. is concerned, it is apparent from the record that against
the non-framing of notice, the petitioner had preferred a revision petition bearing
CR No.64/2014 which was disposed of by the learned ASJ vide order dated
13.08.2014. Learned ASJ directed the Trial Court to frame a formal notice
under Section 251 Cr.P.C. against the accused persons including the petitioner-
herein. It was also observed that the evidence of the complainant already recorded
at the stage of pre-charge evidence shall be considered and read as evidence
recorded during post notice under Section 251 Cr.P.C. Thereafter, a formal notice
under Section 251 Cr.P.C. was framed by the Trial Court against the petitioners on
06.09.2014 and an opportunity to cross-examine the complainant witnesses was
given to the accused persons. The said opportunity was duly availed by the
accused persons and the witnesses of the complainant were cross-examined.

10. The other limb of argument of the petitioners is that since the evidence of the
complainant was not recorded in their presence, therefore, no incriminating
evidence came on record against them and they were liable to be discharged.
There is no basis in the contention of the petitioners for discharge for the reasons
that firstly, there is no stage of discharge in a summons case. Under Chapter XX
of Cr.P.C., after filing a private complaint, in a summons case, the accused is
either convicted or acquitted. There is no stage of discharge of an accused at any
stage under Chapter XX of Cr.P.C. The other aspect of the matter is that during the
pendency of the revision petition preferred by the petitioners-herein, it was duly
conceded by the learned counsel for the petitioners to consider the evidence of the
complainant already recorded during pre-charge stage as evidence recorded after
the stage of framing notice under Section 251 Cr.P.C. When it was fairly conceded
by the petitioners themselves that the evidence recorded during pre-charge stage
be considered as evidence recorded post notice stage, now it does not lie in the
mouth of the petitioners to challenge the same while contending that no evidence
was recorded in their presence which results into discharge in the absence of
any incriminating evidence. The proceedings to which the petitioners themselves
were party cannot be questioned by them subsequently.

11. In view of the above facts and circumstances, this Court is of the considered
opinion that neither any abuse to the process of law has been established nor any
interference is warranted in the impugned order dated 31.01.2015.

12. Before parting with, any observation made above shall not have any bearing
on the merits of the case.

13. The revision petitions are accordingly dismissed.

(P.S.TEJI) JUDGE JUNE 13, 2016 dm