# Smt. Swarn Manjal v. State of U.P. and another

- **Citation:** (2000) 3 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-swarn-manjal-v-state-of-u-p-and-another-39493
- **Pages:** 5

## Text

3All] Smt. Swarn Manjal V. State of U.P. and another 149

during investigation. We have
already above found that the First
Information Report disclose cognizable
offence and therefore F.I.R. can not be
quashed. It has been held by Full Bench
of this Court in Satya Pal and others vs.
State of U.P. 2000(40) ACC, 75, that in
appropriate cases, if the Court is
convinced that the power of arrest will
be exercised wrongly or mala-fidely or
in violation of Section 41 ( 1 ) ( a ) of the
Code of Criminal Procedure, writ of
mandamus can be issued restraining the
police from misusing its legal power.
However, the order of Staying arrest may
be granted sparingly in the exceptional
cases and with circumspection that too in
rarest of rare cases keeping in mind that
any relief, interim or final during
investigation which has the tendency to
slow
or
otherwise

hamper

the
investigation should not be granted.

7. As already pointed out above the
question of examining truthfulness or
otherwise of the allegations made in the
First Information Report is not to be gone
into by this Court, as the same is to be
determined by the investigating Agency
during investigation. We hope and trust
that the Investigating Agency shall act
honestly, fairly and independently while
making investigation and take legal
recourse against the petitioner only when
it is necessary to do so.

8. Lastly it was contended that goods
seized may be released in favour of the
petitioners. But no such prayer has been
made in any of the writ petition.
Moreover, order for interim custody of
the goods may be made by the Court
having jurisdiction to take cognizance of
the case and the petitioners are at liberty
to make such prayer before appropriate
Court.

9. The above writ petition nos. 4167
of 2000, 4257 of 2000, 4258 of 2000 4283
of 2000, 4289 of 2000 and 4299 of 2000
are
dismissed
with
the
aforesaid
observations.

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By the Court

1. This is a revision under Section
397/401 Cr.P.C. The facts giving rise to
this revision are as follows:

2. The opposite party no.2 filed a
complaint against the revisionist and three
other for offences under Section 406
I.P.C. and 138 N.I. Act which was case
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

150
no.792 of 1998 pending before VIth
Additional Chief Judicial Magistrate,
Agra. The learned Magistrate recorded the
evidence under Sections 200 and 202
Cr.P.C. and thereafter passed the order
under Section 204 Cr.P.C. summoning the
revisionist. In compliance of the process
issued
against
the
revisionist,
the
revisionist appeared and filed objections
pleading that no case is made out against
her and therefore, the order of summoning
her under Section 204 Cr.P.C. be recalled.
The application was not considered on the
merits. On the other hand, it was rejected
only on the ground that objections against
the order for issuing summons are not
maintainable in view of the decision of
Full Bench of this Court in the case of
Ranjit Singh and others Versus State of
U.P. and others, 2000 (1) JIC 399.
Feeling aggrieved by this order, the
revisionist has approached this Court.

3. I have heard Sri Raghubir Singh,
learned counsel for the revisionist and the
learned A.G.A.

4. This revision involve a question
of law only regarding which there are
several decisions of this Court and
therefore, I think it proper to consider the
matter in detail to clarify the law, on the
point at the admission stage itself.

5. The important decision on this
point was delivered by Hon'ble Mr.
Justice S.R. Singh in the well known of
Kailash Chaudhary and others Versus
State of U.P. and others, 1993 (30)
A.C.C. 665 which was being universally
followed by the subordinate courts of
Magistrate in this State. Broadly speaking
the following two prepositions were laid
down in the above case:

1) That the order under Section 204
Cr.P.C. for issue of process is an
interlocutory order and the revision
against that order is barred by clause (2)
of Section 397 Cr.P.C.

2) The order under Section 204
Cr.P.C. is an interim order which can be
varied, rescinded or recalled by the
Magistrate and the Proceedings could be
dropped, if the Magistrate found that no
offence was disclosed.

6.

This
decision
of
Kailash
Chaudhary
(Supra)
came
for
consideration before the Division Bench
of this Court in Uma Kant Pandey
Versus Addl. Chief Judicial Magistrate,
Karvi, 1996 A.Cr.888. The Division
Bench of this Court patially over ruled the
judgment of Kailash Chaudhary (Supra).
The preposition no.1 mentioned above
was over ruled by the Division Bench, but
preposition no. 2 was upheld. It was
observed by the Division Bench "In view
of what we have discussed hereinbefore
we find that barring the observations of
Hon'ble S.R. Singh, J. that order issuing
the processes under Section 204 Cr.P.C. is
an interlocutory order against which no
revision would lie in the High Courts in
view of the bar under Section 397 (2)
Cr.P.C., rest of the judgment of Brother
S.R. Singh, J. in the case of Kailash
Chaudhary and others meets our full
approval."

In the above background I consider
the decision of the Full Bench in the case
of Ranjit Singh and others (Supra) which
have been relied upon by the learned
Magistrate to reject the application of the
revisionist to recall the order passed under
Section 204 Cr.P.C. The question referred
to the Full Bench was "Whether a
3All] Smt. Swarn Manjal V. State of U.P. and another 151

Magistrate/Court before rejecting "Final
Report" filed by the Investigating Officer
has to hear the accused on his appeaing
voluntarily or after notice irrespective of
the fact whether or not the informant is
proposed to be heard with or without a
protest petition challenging the said
"Final
Report".
The
Full
Bench
considered the various decisions on this
question and answered the question as
follows:

" That There is no scope to uphold that
the accused should be afforded an
opportunity
by
the
Magistrate/Court
before accepting or rejecting a final report
submitted by the police after investigation
of a F.I.R."

8. The decisions of the cases of
Kailash Chaudhary (Supra) and Uma
Kant Pandey (Supra) were incidentally
considered by the Full Bench in the above
case of Ranjit Singh (Supra). Regarding
the case of Kailash Chaudhary (Supra) it
was observed "that the decision is neither
correct on facts nor law and does not lay
down the correct law." The decision of
Division Bench of Uma Kant Pandey
(Supra) so far as it confirmed the decision
of Kailash Chaudhary (Supra) in part was
also over ruled. Relying on this decision
of the Full Bench the learned Magistrate
therefore had held that an application to
recall the order under Section 204 Cr.P.C.
is not maintainable and there is no
provision for the same.

9. In the cases noted above reference
was also made to the decision of the
Hon'ble Supreme Court in the case of
K.M. Mathew Versus State of Kerala J.T.
1991 (4) SC 464 and was relied on in the
case of Kailash Chaudhary (Supra) and
Uma Kant Pandey (Supra). It was laid
down in that case that the Magistrate has
jurisdiction to recall the process. However
it was observed by the Full Bench that
correctness of the decision of the case of
K.M. Mathew (Supra) was doubted by the
Hon'ble Supreme Court in the case of
Nilamani
Routry
Versus
Bennet
Colemn and Co. Ltd., 1998 (8) SCC
594. It was observed that "K.M. Mathew
case requires re-consideration for it is
settled law that a power of review has to
be conferred by law specifically and
Cr.P.C. does not confer such power." It
was further observed that "it is desirable
that the matter be heard by a Bench of
three Judges." The another reason for not
accepting the view expressed by the Apex
Court in the case of K.M. Mathew (Supra)
was that it was a summons trial in which
on the appearance of the accused and
praying for dropping of proceedings, the
Magistrate can exercise powers conferred
upon him by the provisions of Section
258 Cr.P.C. It was observed that this
provision of Section 258 Cr.P.C. does not
apply to warrant trial or the Sessions trial.
The law laid down in the case of K.M.
Mathew (Supra) is regarding summons
cases instituted on a complaint.

10. In the present case I am not
concerned with the preposition of law laid
down by the Full Bench on the question
referred to it. The consideration before me
is the law laid down in the case of Kailash
Chaudhary (Supra) and Uma Kant Pandey
(Supra) which have been over ruled by
the above Full Bench. The decision of the
Full Bench was delivered on 12.11.1999.
However, it appears that an important
decision of the Apex Court on the
controversy before me omitted from the
attention of the Full Bench which is of
great assistance. That decision is in the
case of Rajendera Kumar Sita Ram
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

152
Pandey and others Versus Uttam and
another, 1999 (3) SCC 134. It was
decided
by
the
Apex
Court
on
11.02.1999. In that case the appellant
before the Hon'ble Supreme Court were
accused in a case for offence punishable
Under
Section
500/34
I.P.C.
The
Magistrate after recording the evidence
Under Section 200 and 202 Cr.P.C. issued
summons to the accused persons to appear
to stand trial for offence Under Section
500/34 I.P.C. That order of the Magistrate
was challenged by the accused in the
revision before the Sessions Judge. The
learned Sessions Judge set aside the order
of the Magistrate issuing process against
the
accused
after
coming
to
the
conclusion that the case is covered by
exception 8 to Section 499 I.P.C.
Aggrieved by the order of the Sessions
Judge, the complainant approached the
High Court Under Section 482 Cr.P.C.
The High Court set aside the order of the
Sessions Judge on the finding that the
order of the Magistrate is an interlocutory
order and the Sessions Judge had no
jurisdiction Under Section 397 Cr.P.C. to
interfere with the same. Against that order
the accused approached the Hon'ble
Supreme Court by means of an appeal in
which it was held by the Hon'ble
Supreme Court that the order of the
Magistrate directing issuance of the
process is not an interlocutory order and
therefore amenable to the revisional
jurisdiction
of
the
Sessions
Judge.
Therefore, by this decision preposition no.
1 mentioned above laid down in the case
of Kailash Chaudhary (Supra) has been
over ruled by the Apex Court. However,
the following observation of the Apex
Court in this case is very material and
supports the preposition no.2 laid down in
that case. It was observed that "In view of
the matter, requiring the accused persons
to face trial or even to approach the
Magistrate afresh for reconsideration of
the question of issuance of process could
not be in the interest of justice." By this
observation,
the
Apex
Court
has
recognized the right of the accused to
approach
the
Magistrate
afresh
for
reconsideration
of
the
question
of
issuance of process with the request to
recall the order.

11. Another latest decision of the
Apex Court in the case of K.K. Patel and
another Versus State of Gujrat and
another, J.T. 2000 (7) SC 246 is very
material regarding this point. In this case
the complaint was filed in the court of
Magistrate against the police officers for
officers
Under
Sections
166,167,176,201,219,220,342, 417 I.P.C.
The Magistrate took cognizance of the
offences and processes were issued Under
Section 204 Cr.P.C. to the accused
persons. The accused on appearance
before the Magistrate filed a petition for
discharge briefly for the reason that no
sanction was obtained to prosecute them.
The Metropolitan Magistrate considered
the matter and by very detailed judgment
rejected
the
request
for
discharge
observing that it will be decided on merits
after considering the evidence produced
by the parties. The accused, therefore,
filed revision against that order before the
Sessions Judge. The Sessions Judge held
that there was no sanction for prosecution
and the complaint is also barred by time
and therefore, he quashed the complaint
and also the summoning order. Thereafter
the complainant approached the High
Court. The High Court set aside the order
of the learned Sessions Judge on the
ground that the order was inter-locutory
and the revision could not be entertained.
The accused therefore, approached the
3All] Nabbu Khan V. IIIrd Additional District Judge, Pilibhit and others 153

Hon'ble Supreme Court in an appeal. The
Hon'ble Supreme Court allowed the
appeal and restored the order passed by
the
Sessions
Judge
dismissing
the
complaint.

Therefore, this case is also an
authority on the point that the accused
persons
on
appearance
after
being
summoned Under Section 204 Cr.P.C.
may file a petition for discharging them.
The very fact that the petition for
discharging the accused and dismissing of
the complaint was allowed by the Apex
Court show that it was held that the
application
for
this
purpose
is
maintainable
before
the
Magistrate
passing
the
summoning
order.
The
contrary view taken by the Full Bench in
the case of Ranjit Singh (Supra) is not in
conformity with the above two decisions
of the Apex Court and therefore, can not
be followed.

12. In the light of the above
discussions, therefore I find that the
decision of the Full Bench in the case of
Ranjit Singh (Supra) to the extent that it
over ruled the preposition no.2 mentioned
above of the case of Kailash Chaudhary
(Supra) is not a good law. In view of the
decision
of
the
Apex
Court,
the
Magistrate has power to recall the
summoning order passed Under Section
204 Cr.P.C. and can discharge the
accused on the request of the accused that
no offence is disclosed against them or
the prosecution is barred by any law for
the time being enforced.

13. In view of the above the learned
Additional Chief Judicial Magistrate, has
erred in rejecting the application of the
applicant on the ground that it is not
maintainable in view of the decision of
the Full Bench in the case of Ranjit Singh
(Supra).

14. The revision is therefore
allowed.
The
learned
Magistrate
is
directed to consider and dispose of the
application of the applicant on merits.

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