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Bhopal Sugar Industries Ltd. And ... vs State Of U.P. And Ors.

High Court Of Judicature at Allahabad|31 January, 2002


1. By means of this writ petition, petitioners have prayed for quashing the orders dated 12.5.2000 and 24.8.2000 passed by Judicial Magistrate, Ghaziabad and Additional Sessions Judge, Ghaziabad respectively. A further prayer has been made for issuing a writ of certiorari quashing the Complaint of Case No. 3386 of 1997, Dabur India Ltd. v. B.S.I. Ltd. and Ors., and entire proceedings initiated on the basis of the said complaint, which are pending before I Additional Chief Judicial Magistrate, Ghaziabad.
2. The Court has heard Mr. P.K. Sinha for the petitioners, learned A.G.A. for the State and S/Sri D.S. Tiwari, H.N. Mehrotra and Shankar Suan for respondent Nos. 2 and 3.
3. The relevant facts are that respondent Nos. 2 and 3 have filed a criminal complaint against the petitioners for proceeding against them under Section 420, I.P.C. and Sections 138/141 of the Negotiable of Instruments Act. After recording statement of the complainant under Section 200, Cr.P.C. and holding inquiry under Section 202, Cr.P.C., the concerned Magistrate on 29.11.1997 passed an order summoning petitioners as accused persons in respect of the aforesaid penal offences. The petitioners challenging the said order and the maintainability of complaint, filed an application under Section 482 of the Code of Criminal Procedure invoking inherent powers of this Court for quashing order and for dropping the proceeding against them which were pending in the Court below. This application was dismissed by a learned Single Judge of this Court, Hon'ble R.K. Singh, J. by the order dated 24.2.1999. Against this order the petitioners filed S.L.P. No. 1063/99 but the same was dismissed as withdrawn on 13.8.1999. It further appears that thereafter the petitioners through their Counsel filed objection before the Magistrate for recalling the summoning order dated 29.11.1997. This objection was dismissed by the learned Magistrate by the impugned order dated 12.5.2000. Against this order the petitioners filed revision before the Sessions Judge which too has been dismissed by the impugned order dated 24.8.2000. Against these two orders the present writ petition has been filed.
4. At the outset learned Counsel for the con testing-respondents raised an objection regarding maintainability of this writ petition. It is submitted by them that when on an earlier occasion this Court has respected the petitioners application made under Section 482, Cr.P.C. against the summoning order and the S.L.P. filed against the said order has also been dismissed by the Apex Court, no objection for recalling the summoning order was maintainable before the Magistrate concerned. It further urged that in any view of the matter there is no provision in Code of Criminal Procedure for recalling summoning order and, therefore, in this view of the matter also objection filed by the petitioners before the Magistrate concerned, was not legally maintainable, consequently this writ petition deserves to be dismissed.
5. Copy of the order whereby petitioners claim made under Section 482, Cr.P.C. was rejected by this Court has been annexed as Annexure-13 to the writ petition. A perusal of this order leaves no room for doubt that application was decided on merit. After noting the various submissions made by parties Counsel, this Court carefully perused the summoning order dated 29.11.1997, the complaint petition and other annexures which were placed from the side of the petitioners. The Hon'ble Judge rejected the submissions made on behalf of the petitioners, and it was observed :
"The complaint petition is statement of fact which is to be examined by the Court where the case will be heard according to the procedure of law under the Code of Criminal Procedure. The parties will have ample opportunity to adduce evidence in support of the complaint or in defence of the accused. The cases relied upon by Mr. Chaudhari noted above have been carefully studied. Those cases are clearly distinguishable from the facts of the present case. At this stage this Court is not inclined to observe anything which may go against any party of this case in the trial before the Court below. The facts are there which the Court below will examine in the light of the evidence adduced by the parties. The impugned order discloses application of judicial mind and the argument of Mr. Chaudhari on this score is rejected."
The operative portion ran as under :
"This Criminal Miscellaneous Petition is accordingly dismissed. The matter is left for decision by the Court below. The interim order dated 22nd April, 1998 passed by this Court stands discharged".
6. Mr. Sinha learned Counsel for the petitioners submitted that this Court had left the matter open for decision by the Court below, therefore, when the petitioners had filed objections for recalling the summoning order they should have been decided on merit, On the other hand Mr. D.S. Tiwari, learned Counsel for the respondents submitted that the expression "the matter is left for decision by the Court below cannot be construed narrowly. What this Court meant that the matter was left for decision in trial by the Court below in accordance with law. He submitted that in view of Full Bench decision of this Court in Ranjeet Singh and Others v. State of U.P., 2000 Crl. L. J. 2738. The objections filed on behalf of the petitioners before the Magistrate were not legally maintainable. In this decision it was held that the accused cannot be relegated to the remedy under Section 204 of the Code of Criminal Procedure to approach the Magistrate and satisfy him that the process in the case ought not to have been issued. Challenging the order of issuing process before the Court issuing the said process is in fact requiring the arms of the clock to move anti-clockwise Which does not happen or at least should not happen. A parallel trial cannot be allowed to commence before the actual trial begins.
7. When an order of summoning is passed it is always open for the accused to appear before the Magistrate concerned in compliance of the said order and to make a prayer to discharge him. Under Chapter XIX a definite procedure has been laid down in relation to the cases instituted otherwise than on police report. Section 244 provides that when, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Sub-section (1) of Section 245 then provides that if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him, Subsection (2) of Section 245 however provides that it is open for a Magistrate to discharge the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, considers the charge to be groundless, Therefore, when this remedy is already provided to an accused under Sub-section (2) of Section 245 a parallel remedy cannot be allowed to be availed of by him by filing objections against the summoning order and for recalling the same. This view of mine is fully supported by the aforesaid Full Bench decision.
8. For the reasons stated above, this Court finds that the objections filed by the petitioners before the Magistrate concerned for recalling the summoning order were not maintainable for two reasons. Firstly, that this Court while deciding application under Section 482, Cr.P.C. had already held that the summoning order was passed by the Magistrate concerned after application of judicial mind and had rejected the contention of the accused persons that complaint was not maintainable, and secondly no such objections were permissible under law in view of Full Bench decision of Ranjeet Singh (supra).
9. For the above reasons, this writ petition fails and is hereby dismissed.
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Bhopal Sugar Industries Ltd. And ... vs State Of U.P. And Ors.


High Court Of Judicature at Allahabad

31 January, 2002
  • J Gupta