# 16 S.C.R. 542 URMILA DEVI v. YUDHVIR SINGH

- **Citation:** [2013] 16 S.C.R. 542
- **Court:** Supreme Court of India
- **Decided:** 2013-10-23
- **Case number:** Criminal Appeal No. 1822 of 2013
- **Bench:** T.S. Thakur, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/16-s-c-r-542-urmila-devi-v-yudhvir-singh-29008
- **Pages:** 47

## Headnote

Criminal Trial - Summoning order - Nature of - How to
C construe order passed by a Magistrate in exercise of its power
u/ss. 200 and 202 CrPC when it decides to issue process as
against the accused - Whether such an order could be the
subject matter of challenge by way of revision u!s. 397 CrPC
- Held: The order issued by the Magistrate deciding to
D summon an accused in .exercise of his power u!ss. 200 to 204
CrPC would be an order of intermediatory or quasi-final in
•
nature and not interlocutory in nature - In view of the said
position viz., such an order is intermediatory order or quasifina/ order, the revisionary jurisdiction provided u/s.397 CrPC,
E either with the District Court or with the High Court can be
worked out by the aggrieved party·- Such an order of a
Magistrate deciding to isst..ie process or summons to an
accused in exercise of his power u/ss.200 to 204 CrPC, can
always be subject matter of challenge under the .inherent
F jurisdiction of the High Court u/s. 482 CrPC -·Code of Criminal
Procedure, 1973 - ss.200 to 204, 397 and 482.
Code of Criminal Procedure, 1973 - s. 397 - Order of
Magistrate, directing issuance of summons - Challenge to -
Scope of power and jurisdiction of the Revisional court
G exercising jurisdiction uls.397 CrPC - Held: Revisional
jurisdiction uls.397 CrPC is available to the aggrieved party
in challenging the order of the Magistrate, directing issuance
of summons - Revision.
H
542
URMILA DEVI v. YUDHVIR SlNGH
543
Code of Criminal Procedure, 1973 - ss.197, 198 and 53,
A
54 - Sanction for prosecution -
Protection of s.197 CrPC if
available - Test of direct and reasonable connection between
official duty of the accused and the offences allegedly
committed - According to appellant, based on a complaint
preferred by 'M' alleging that the appellant and 'R' were living
B
in an illicit relationship, the respondent Executive Magistrate!
SOM, acted without authority of law and without any lawful
justification, harassed the complainant-appellant, violated her
right to privacy, and subjected her to an unwarranted public
humiliation - Whether offences allegedly committed by the c
respondent were committed while he was 'acting or purporting ·
to act in the discharge of his official duty'; and whether sanction
uls. 197 CrPC was necessary for prosecuting him- Held: The
offences alleged by 'M' against the appellant, if to be taken
cognizance of, could have fallen under any of the offences D
falling under Chapter XX of /PC - For all or any of the
offences falling in Chapter XX, an aggrieved person can be
either the husband or the wife and none else other than those
falling under the proviso to sub-section (2) of s. 198 CrPC -
'M' not an aggrieved person falling u!s. 198(1) CrPC or E
governed by proviso to s.198(2) CrPC - Therefore, it cannot
be held that respondent validly exercised his authority as
Executive Magistrate/SOM when he acted on the complaint
of 'M' - No scope to bring the action of respondent uls.198
CrPC - Further, no scope for respondent to contend that he
acted by virtue of the authority vested in him uls.107 CrPC -
Also there was no scope for anyone, inuch less for the
respondent in the capacity of an Executive Magistrate to order
F
for forcible medical examination of appellant and 'R' prior to
their arrest and in absence of any alleged offence requiring
such medical examination - Even assuming the allegation
G
of 'M' was true on its face value, respondent-SOM could not
have taken a decision to barge into the house of appellantlady, that too at the odd hours of 10 pm accompanied by a
posse of police officers under the guise of ascertaining the
H
544
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A truthfulness or otherwise of such a complaint and for that
purpose engage the services of two cameramen also with
video cameras - Such behaviour of respondent, if ultimately
found to be true, can only be held to be a high handed one
bordering on indecency of the highest order, wholly abusing
B his st

## Text

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A
B
(2013] 16 S.C.R. 542
URMILA DEVI
v.
YUDHVIR SINGH
(Criminal Appeal No. 1822 of 2013)
OCTOBER 23, 2013
[T.S. THAKUR AND FAKKIR MOHAMED IBRAHIM
KALIFULLA, JJ.]
Criminal Trial - Summoning order - Nature of - How to
C construe order passed by a Magistrate in exercise of its power
u/ss. 200 and 202 CrPC when it decides to issue process as
against the accused - Whether such an order could be the
subject matter of challenge by way of revision u!s. 397 CrPC
- Held: The order issued by the Magistrate deciding to
D summon an accused in .exercise of his power u!ss. 200 to 204
CrPC would be an order of intermediatory or quasi-final in
•
nature and not interlocutory in nature - In view of the said
position viz., such an order is intermediatory order or quasifina/ order, the revisionary jurisdiction provided u/s.397 CrPC,
E either with the District Court or with the High Court can be
worked out by the aggrieved party·- Such an order of a
Magistrate deciding to isst..ie process or summons to an
accused in exercise of his power u/ss.200 to 204 CrPC, can
always be subject matter of challenge under the .inherent
F jurisdiction of the High Court u/s. 482 CrPC -·Code of Criminal
Procedure, 1973 - ss.200 to 204, 397 and 482.
Code of Criminal Procedure, 1973 - s. 397 - Order of
Magistrate, directing issuance of summons - Challenge to -
Scope of power and jurisdiction of the Revisional court
G exercising jurisdiction uls.397 CrPC - Held: Revisional
jurisdiction uls.397 CrPC is available to the aggrieved party
in challenging the order of the Magistrate, directing issuance
of summons - Revision.
H
542
URMILA DEVI v. YUDHVIR SlNGH
543
Code of Criminal Procedure, 1973 - ss.197, 198 and 53,
A
54 - Sanction for prosecution -
Protection of s.197 CrPC if
available - Test of direct and reasonable connection between
official duty of the accused and the offences allegedly
committed - According to appellant, based on a complaint
preferred by 'M' alleging that the appellant and 'R' were living
B
in an illicit relationship, the respondent Executive Magistrate!
SOM, acted without authority of law and without any lawful
justification, harassed the complainant-appellant, violated her
right to privacy, and subjected her to an unwarranted public
humiliation - Whether offences allegedly committed by the c
respondent were committed while he was 'acting or purporting ·
to act in the discharge of his official duty'; and whether sanction
uls. 197 CrPC was necessary for prosecuting him- Held: The
offences alleged by 'M' against the appellant, if to be taken
cognizance of, could have fallen under any of the offences D
falling under Chapter XX of /PC - For all or any of the
offences falling in Chapter XX, an aggrieved person can be
either the husband or the wife and none else other than those
falling under the proviso to sub-section (2) of s. 198 CrPC -
'M' not an aggrieved person falling u!s. 198(1) CrPC or E
governed by proviso to s.198(2) CrPC - Therefore, it cannot
be held that respondent validly exercised his authority as
Executive Magistrate/SOM when he acted on the complaint
of 'M' - No scope to bring the action of respondent uls.198
CrPC - Further, no scope for respondent to contend that he
acted by virtue of the authority vested in him uls.107 CrPC -
Also there was no scope for anyone, inuch less for the
respondent in the capacity of an Executive Magistrate to order
F
for forcible medical examination of appellant and 'R' prior to
their arrest and in absence of any alleged offence requiring
such medical examination - Even assuming the allegation
G
of 'M' was true on its face value, respondent-SOM could not
have taken a decision to barge into the house of appellantlady, that too at the odd hours of 10 pm accompanied by a
posse of police officers under the guise of ascertaining the
H
544
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A truthfulness or otherwise of such a complaint and for that
purpose engage the services of two cameramen also with
video cameras - Such behaviour of respondent, if ultimately
found to be true, can only be held to be a high handed one
bordering on indecency of the highest order, wholly abusing
B his status as SOM - Since none of the actions alleged against
the respondent by the appellant can be held to be one in which
he acted 1n his capacity as the Executive Magistrate,
invocation of s.197 CrPC wholly uncalled for - Plea of
respondent that prosecution barred u/s.197 CrPC rejected -
c Resultantly, summons issued by trial Court and the order by
which the Magistrate declined to recall the issuance of
summons, restored - Penal Code, 1860 - Chapter XX; ss.
323, 354, 389, 452, 458, 500 and 506 r/w ss.34 and 120-8.
Words and Phrases - Expression "official duty" -
D Meaning of
The appellant filed complaint against the respondent,
a Sub-Divisional Magistrate, alleging that he had
threatened the appellant and 'R' to withdraw the
E complaint filed by them earlier as against 'M' under
Section 500 IPC. According to the appellant, based on a
complaint preferred by 'M' alleging that the appellant and
'R' were living in an illicit relationship, the respondent
directed the Tehsildar to enquire into the matter and also
F directed the DSP to conduct special investigation. The
respondent also allegedly accompanied the investigation
team alongwith two other accused persons with video
cameras and carried out search in the house of the
appellant. It was further alleged that the respondent
G threatened the appellant and 'R' to withdraw the case filed
against 'M'; that 'R' was made to strip off his clothes
before others and thereby he was humiliated and that
both the appellant and 'R' were forced to undergo a
medical examination in the civil hospital against their will.
H
URMILA DEVI v. YUDHVIR SINGH
545
The respondent and the other accused persons were
A
summoned by the Judicial Magistrate to face trial for
offences under Sections 323, 354, 389, 452, 458, 500 and
506, read with Sections 34 and 120-B of IPC. The
respondent filed application to recall the summoning
order. The application was dismissed by the Judicial
B
Magistrate. The respondent preferred revision before the
Sessions Judge, who held that in view of the bar enjoined
under Section 197 CrPC, the respondent, a SubDivisional Magistrate, could not be summoned to·face the
trial. The High Court declined to interfere with the order c
of the Sessions Judge.
In the instant appeal, the appellant inter a/ia
contended that the order of the Judicial Magistrate being
an interim order, there w~s no jurisdiction in the Sessions
Judge to entertain the revision under Section 397 CrPC;
D
and if at all the respondent was aggrieved, he could have
only approached the High Court under Section 482 CrPC.
The appellant further contended that none of the acts
complained of against the respondent would amount to
exercise of any powers in his offjcial capacity as SOM
E
and, therefore, he could not have taken umbrage under
Section 197 CrPC; and therefore, the order of the
Sessions Judge and the confirmation of the same by the
High Court in having held that for want of sanction under
Section 197 Cr.P.C the whole complaint of the appellant
F
was not maintainable was thoroughly illegal and liable to
be set aside.
The following questions therefore arose for
consideration before this Court: 1) whether the order G
issuing summons can be construed as an interim order
or an intermediate order and 2) what is the scope of
challenging such an order by way of revision under
Section 397 CrPC; 3) whether the offences allegedly
committed by the respondent pu~lic servant were
H
546
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A committed while he was 'acting or purporting to act in the
discharge of his official duty'; and 4) whether sanction
under Section 197 CrPC was necessary for prosecuting
the respondent public servant.
8
Allowing the appeal with costs payable by the
respondent to the appellant, the Court
Per Kalifulla, J.
HELD:1. The order issued by the Magistrate deciding
c to summon an accused in exercise of his power under
Sections 200 to 204 Cr.P.C. would be an order of
intermediatory or quasi-final in nature and not
interlocutory in nature. In view of the said position viz.,
such an order is intermediatory order or quasi-final order,
0 the revisionary jurisdiction provided under Section 397,
either with the District Court or with the High Court can
be worked out by the aggrieved party. Such an order of
a Magistrate deciding to issue process or summons to
an accused in exercise of his power under Section 200
E to 204 Cr.P.C., can always be subject matter of challenge
under the inherent jurisdiction of the High Court under
Section 482 Cr.P.C. The position has now come to rest
to the effect that the revisional jurisdiction under Section
397 Cr.P.C. is available to the aggrieved party in
challenging the order of the Magistrate, directing
F issuance of summons. [Paras 22, 24] [565-C-F; 566-D]
Rajendra Kumar Sitaram Pande and others vs. Uttam
and another AIR 1999 SC 1028: 1999 (1) SCR 580; K.K.
Patel and another vs. State of Gujarat and another AIR 2000
G SC 3346: 2000 (1) Suppl. SCR 312; Om Kumar Dhankar vs.
H
State of Haryana and another (2012) 11 sec 252 and
Subramanium Sethuraman vs. State of Maharashtra and
another (2004) 13 sec 324 - relied on.
Ada/at Prasad vs. Roop/al Jindal and others (2004) 7
URMILA DEVI v. YUDHVIR SINGH
547
sec 338; Bholu Ram vs. State of Punjab and another (2008)
A
9 SCC 140: 2008 (12) SCR 959; N.K. Sharma vs.
Abhimanyu (2005) 13 SCC 213: 2005 (4) Suppl. SCR 207; .
Amar Nath and others vs. State of Haryana (1977) 4 SCC
137: 1978 (1) SCR 222; Madhu Lima ye vs. State of
Maharashtra (1977) 4 SCC 551: 1978 (1) SCR 7 49; V. C.
B
Shakia vs. State through CBI 1980 2 SCR 380; Dharimal
Tobacco Products Ltd. and others vs. State of Maharashtra
and another AIR 2909 SC 1032: 2008 (17) SCR 844; K.M.
Mathew vs. State of Kera/a and another (1992) 1 SCC 217:
1991 (2) Suppl. SCR 364; Nilamani Routray vs. Bennett c
Coleman and Co. Ltd. (1998) 8 SCC 594 and Rakesh Kumar
Mishra vs. State of Bihar and others (2006) 1 SCC 557: 2006
(1) SCR 124 - referred to.
2.1. With reference to the complaint allegedly lodged
by 'M' against the appellant, the alleged offence, if to be
D
taken cognizance of, could have fallen under any of"the
offences falling under Chapter XX of° IPC. Under Section
198(1) of the CrPC it is specifically stipulated that no Court
shall take cognizance of an offence punishable under
Chapter XX of IPC except upon a complaint made by · E
some person aggrieved by the offence. Sub-section (2)
further states that for the purpose of sub-section (1 ), no
person other than the husband of the woman shall be
deemed to be aggrieved by any offence punishable
under section 497 or section 498 of the said Code. and
F
the proviso to the said section makes it clear that in the
absence of the husband, some person who had care of
the woman on his behalf at the time when such offence
was committed may, with the leave of the Court, make a
complaint on his behalf. Under Chapter XX of the IPC,
G
Sections 493 to 498 have been set out. For all or any of
the offences falling under Sections 493 to 498 IPC in
Chapter XX, an aggrieved person can be either the
husband or the wife and none else other than those who
H
548
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A would fall under the proviso to sub-section (2) of Section
198 Cr.P.C. [Paras 33, 34 and 35] [570-H; 571-A-F]
2.2. In the circumstances of the case, when the offence
complained of by 'M' is taken into account, she cannot be
8 held to be an aggrieved person falling under Section 198(1)
Cr.P.C. or for that matter governed by the proviso to
Section 198(2). The responden·t entered the house of the
appellant on 26.06.1997 pursuant to the complaint made
by 'M'. If the said complaint of 'M' cannot validly form the
basis for the respondent to exercise his power and
C authority as an Executive Magistrate/SOM, one is at a loss
to understand as to through what other source, the
respondent acquired the power or was empowered to
barge into the house of the appellant under the garb of an
Executive Magistrate. Therefore, it cannot be held that the
D respondent validly exercised his authority as an Executive
Magistrate when he acted based on the complaint of 'M'.
[Para 35] [571-G-H; 572-A-B]
2.3. If there is no scope to bring the action of the
E respondent under Section 198 Cr.P.C, the only other
provision under which the respondent could have acted
while ordering a search could have been only. under
Section 107 Cr.P .C. Section 107 relates to breach of
peace or disturbing the public tranquility or to do any
F wrongful act that may probably occasion a breach of
peace or disturb the public tranquility. When the simple
allegation of 'M' against the appellant was that the
appellant was having some illegal relationship with 'R' in
the premises in which the appellant was residing, there
G. is absolutely no scope for the respondent to invoke
Section 107 Cr.P.C and contend that he acted by virtue
of the authority vested in him under the said provision.
[Para 36] [572-C-F]
3.1. The only other aspect to be examined is the
H conduct of medical examination on the appellant and 'R'.
URMILA DEVI v. YUDHVIR SINGH
549
The alleged medical examination was stated to have been
conducted prior to the arrest of appellant and 'R'. Under
Sections 53 and 54 CrPC, the scope of holding a medical
examination on an accused is provided for. Reading,
Sections 53 and 54 together, prior to the arrest of a person
and in th_e absence of any alleged offence which would
require such medical examination there was no scope for
anyone, much less for a person in the capacity of an
Executive Magistrate to order for a forcible medical
examination. [Paras 37, 38] [572-G-H; 573-E-F]
A
B
c
3.2. The allegations complained of against the
respondent at the instance of the appellant in the present
proceedings if found to be true, the resultant position
would be, that the respondent cannot be said to have
legally acted in his official capacity as Executive D
Magistrate while ordering for the search and inquiry by
the Tehsildar, the DSP and the other police officers along
with the two video cameramen. Again, the only basis for
the respondent to act was the so called complaint of 'M'
alleging that the appellant was having illicit relationship
E
with 'R'. Assuming such an allegation of 'M' was true on
its face value, one wonders, how a person in the rank of
an SDM took a decision to barge into the house of a lady,
that too at the odd hours of 10 pm accompanied by a
posse of police officers under the guise of ascertaining
F
the truthfulness or otherwise of such a complaint and for
that purpose engage the services of two cameramen also
with video cameras. Such a behaviour of the respondent
as narrated in the complaint of the appellant, if ultimately
found to be true, can only be held to be a high handed
G
one bordering on indecency of the highest order, wholly
abusing his status as SDM and can never be held to have
acted within the statutory framework of law. [Para 39]
[573-G.-H; 574-A-C]
4. The respondent though might have been holding
H
550
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A the post of an Executive Magistrate, none of the acts
alleged against him can by any stretch of imagination be
held to have been carried out iri his capacity as an
Executive Magistrate. When the said conclusion based
on the allegations set out in the complaint and 11oted by
B the Courts b~low are inescapable, it will have to be held
that invocation of Section 197 of Cr.P.C. was wholly
uncalled for and consequently the impugr:ied orders of
the Sessions Judge as well as the High Court cannot be
sustained. Resultantly, the summons issued by the trial
c Court dated 30.07.2001 and the order dated 17.04.2007 by
which the Magistrate declined to recall the issuance of
summons on 30.07.2001 should stand restored. [Para 41°)
[574-G-H; 575-A-B]
Per Thakur, J. [Concurring)
D
HELD:1. Excesses by those in authority affect not
only the immediate victims who suffer them, but should
such excesses go unnoticed and unpunish~d, they have
a more pernicious effect in that they tend to erode the
E Rule of Law, violate fundamental rights and shake the
faith and the confidence of the people in the efficacy and
the credibility of the institutions that are meant to protect
the citizens against them and eventually lead to
catastrophic results like anarchy and the return of dark
F days of barbarism. [Para 6] [580-D]
D.K. Basu v. State of West Bengal (1997) 1 SCC 416:
1996 (10) Suppl. SCR 284; Smt. Shakila Abdul Gafar Khan
v. Vasant Raghunath Dhoble and Anr. (2003) 7 SCC 749:
2003 (3) Suppl. SCR 426; Sube Singh v. State of Haryana
G and Ors. (2006) 3 sec 178: 2006 (2) SCR 67; State of M.P.
v. Shyamsunder Trivedi and Ors. (1995) 4 SCC 262: 1995
(1) Suppl. SCR 44; State of Punjab v. Baldev Singh, etc. AIR
1999 SC 2378: 1999 (3) SCR 977 and State of Maharashtra
and Ors. etc. v. Saeed Sohail Sheikh etc. AIR 2013 SC 168:
H 2012 SCR 916 - referred to.
URMILA DEVI v. YUDHVIR SINGH
551
2.1. The protection of Section 197, Cr.P.C. will be
A
available only if the following ingredients are satisfied: (a)
The person concerned is or was a judge or magistrate
or public servant; (b) Such person is not removable from
his office save by the sanction of the Government; (c)
Such person is accused of commission of an offence
B
and (d)Such offence is committed while the person
concerned was acting or purporting to act in the
discharge of his official duties. [Para 9] [582-B-D]
2.2. In the instant case, the first three of the four
requirements set out above are satisfied inasmuch as the
C
respondent public servant was not removable from the
office held by him save by or with the sanction of the
Government and he is accused of the commission of
offences punishable under the Indian Penal Code. What
constituted the essence of the forensic debate at the bar
D
was whether the offences allegedly committed by the
respondents were committed while he was 'acting or
purporting to act in the discharge of his official duty'. The
words "acting or purporting to act in the discharge of his
official duty" appearing in Section 197 are critical not only
E
in .the case at hand but in every other case where the
accused invokes the protection of that provision. The
expression "official duty'' appearing in Section 197 has
not been defined. The dictionary meaning of the
expression would, therefore, be useful for understanding
F
the expression both literally and contextually. [Para 10]
[582-E-H; 583-A-B]
2.3. The expression "official duty" would in the
absence of any statutory definition denote a duty that
G
arises by reason of an office or position of trust or
authority held by a person. It follows that in every case
where the question whether the accused was acting in
discharge of his official duty or purporting to act in the
discharge of such a duty arises for consideration, the
H
552
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A Court will first examine whether the accused was holding
an office and, if so, what was the nature of duties cast
upon him as holder of any such office. It is only when
th1~re is a direct and reasonable nexus between the nature
of the duties cast upon the public servant and the ~ct
8 constituting an offence that protection under Section 197
Cr.P.C may be available and not otherwise. Just because
the accused is a public servant is not enough. A
reasonable connection between his duties as a public
servant and the acts complained of is what will determine
C whether he was acting in discharge of his official duties
or purporting to do so, even if the acts were in excess of
what was enjoined upon him as a public servant within
the meaning of that expression under Section 197 of the
Code. [Para 14) [583-F-H; 584-A-B]
D
2.4. The test of direct and reasonable connection
between the official duty of the accused and the acts
allegedly committed by them is the true test to be applied
while deciding whether the protection of Section 197 of
the Cr.P.C. is available to a public servant accused of the
E commission of an offence. The High Court has not
adverted to this test nor has it held that there existed a
direct and reasonable connection between the official
duty being discharged by the accused public servant and
the acts committed by him. The High Court has on the
F contrary misdirected itself when it said that the accused
had only committed an act of omission towards his official
duties which entitled him to the protection of Section 197
of the Code. [Para 17) [586-E-F]
G
2.5. It is difficult to appreciate what the High Court
meant by saying that the acts of the accused were "at best
acts of omission towards official duty". It was not the case
of the respondent before the High Court nor is it his case
before this Court that the complaint filed by 'M' disclosed
any offence which could be taken cognizance of by him
H
URMILA DEVI v. YUDHVIR SINGH
553
as an Executive Magistrate or investigated by the police.
A
Assuming that the complainant-appellant and 'R' were
living together even when they were not married to each
other, the complaint regarding any such relationship could
be filed only by the wife of 'R', or the husband of the
complainant. The complaint filed by 'M' could not provide
a valid basis for the SOM, the Tehsildar or the Deputy
Superintendent of Police concerned to barge into the
house of the complainant, humiliate or harass her or drag
B
her to the police station without the registration of any
case or subject her to an uncalled for medical examination.
C
The test of direct and reasonable connection between the
official duty of the respondent Sub Divisional Magistrate
and the police officers concerned and the acts complained
of thus fails in the present case especially because there
is not even a semblance of a lawful justification
forthcoming from the respondent for what he did. Entering
D
the house of a woman, after sunset with a posse of police
force, carrying video cameras conducting ~n unwarranted
search of the house, humiliating and invading the privacy
of the complainant, insulting and humiliating 'R' by asking
him to undress and dragging both of them to the police
station for medical examination against their wishes,
especially when male doctors were asked to examine the
complainant which adde<:f insult to injury, all remain
unsupported by any lawful justification and have no
connection with the duties that were cast upon the
respondent as a public servant, even if a complaint
alleging an adulterous relationship between the appellant
and 'R' had been received by the SOM. The alleged acts
E
F
of the respondent cannot, therefore, be said to be in
discharge of his official duties or in the purported
G
discharge of such duties. Public functionaries cannot
under the cloak of purported discharge of official duties
resort to harassment and humiliation of the citizens on the
pretext of a complaint having been received by them,
especially when the same does no~ disclose the
H
554
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A commission of any offence triable by the Executive
Magistrate or cognizable by the police; nor was there any
other proceeding in connection with which such conduct
could be justified in law. The plea of the respondent that
the prosecution was barred under Section 197 Cr.P.C. has,
8 therefore, to be rejected. [Para 18] [587-F-H; 588-A-G]
P. Arulswami v. State of Madras AIR 1967 SC 776: 1967
SCR 201; B. Saha and Ors. v. M. S. Kochar (1979) 4 SCC
177: 1980 (1) SCR 111 and General Officer Commanding
etc. v. CBI and Anr. etc. (2012) 6 sec 228: 2012 (5) SCR
C 599 - relied on.
Black's Law Dictionary and Law Lexicon - referred to.
First Hamlyn Lecture of 1949 by Lord Denning under
D the title "Freedom under the Law" - referred to.
Case Law Reference:
In the judgment of Fakkir Mohamed Ibrahim Kalifulla, J.
(2004) 1 sec 338
referred to
Para 11
E
2008 (12) SCR 959
referred to
Para 11
2005 (4) Suppl. SCR 207 referred to
Para 11
(2004) 13 sec 324
relied on
Para 11
F
2000 (1) Suppl. SCR 312 relied on
Para 12
1978 (1) SCR 222
referred to
Para 12
1978 (1) SCR 749
referred to
Para 12
G
Hl80 2 SCR 380
referred to
Para 12
1999 (1) SCR 580
relied on
Para 12
2008 (17) SCR 844
referred to
Para 12
H
1991 (2) Suppl. SCR 364 referred to
Para 14
URMILA DEVI v. YUDHVIR SINGH
555
(1998) 8 sec 594
referred to
Para 17
(2012) 11 sec 252
relied on
Para 23
2006 (1) SCR 124
referred to
Para 23
In the judgment of T.S. Thakur, J.
1996 (10) Suppl. SCR 284referred to
Para 3
200·3 (3) Suppl. SCR 426 referred to
Para 4
2006 (2) SCR 67
referred to
Para 4
1995 (1) Suppl. SCR 44
referred to
Para 4
1999 (3) SCR 977
referred to
Para 5
2012 SCR 916
referred to
Para 5
1967 SCR 201
relied on
Para 14
1980 (1) SCR 111
relied on
Para 15
2012 (5) SCR 599
relied on
Para 16
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1822 of 2013.
Fro"m the Judgment & Order dated 20.07.2011 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Misc. No. M9585/08 (O&M).
' .
Rishi Malhotra for the Appellant.
Dr. Bairam ·Gupta, Manjeet Singh, Sudhir Bisla, Sanjit
Singh, Nikhil Jain for the Respondent.
The Judgments of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
granted.
A
B
c
D
E
F
G
2. This appeal at the instance of the complainant is
H
556
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A directed against the judgment of the High Court of Punjab and
Haryana at Chandigarh, in Criminal Miscellaneous Petition
No.9585-M of 2008. The High Court, by the order impugned in
this appeal, confirmed the order of the learned Additional
Sessions Judge, Panchkula dated 10.03.2008, in and by which,
B the learned Additional Sessions Judge reversed the orders of
the learned Chief Judicial Magistrate, Panchkula dated
30.07.2001 and 17.04.2007.
3. The brief facts, which are required to be stated are that
C the appellant herein filed a complaint against the respondent,
alh:ging that the respondent threatened the appellant and one
Shri. R.C. Chopra that if they did not withdraw the complaint
filed by them earlier as against one Smt.Maya Rani, under
Section 500 l.P.C., both of them will not remain in service. By
an order dated 30.07.2001, the learned Chief Judicial
D Magistrate, Panchkula summoned the accused 1 to 10 and 12
to face the trial for the offences under Sections 323, 354, 389,
452, 458, 500 and 506, read with Sections 34 and 120-B of
1.P.C.
E
4. The first accused who is the sole respondent herein,
filed an application to recall the summoning order dated
30.07.2001. The said application was dismissed by the learned
Chief Judicial Magistrate by an order dated 04.07.2007, on the
ground that the summoning order, which was passed-way back
F on 30.07.2001 and that recalling the order, would amount to
reviewing of the order, which was not permissible in law.
5. The respondent preferred a revision before the learned
Additional Sessions Judge, who by an order dated 10.03.2008,
while accepting the revision, set aside both the orders dated
G 30.07.2001 and 17.04.2007, holding that in view of the bar
enjoined under Section 197 Cr.P.C., the respondent herein who
is a Sub-Divisional Magistrate, could not be summoned to face
the trial. It is the said order of the learned Additional Sessions
Judge, which was the subject matter of challenge before the
H
URMILA DEVI v. YUDHVIR SINGH
557
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
High Court and the High Court by the impugned order, declined
A
to interfere with the order of the learned Additional Sessions
Judge, Panchkula.
6. We have heard Mr. Rishi Malhotra, learned counsel for
the appellant and Dr. Bairam Gupta, learned Senior counsel for
8
the respondent.
7. The learned counsel appearing for the appellant
contended that the learned Chief Judicial Magistrate had no
power under the provisions of the Criminal Procedure Code to
recall or review its own order summoning the accused, including
C
the respondent herein. There was no jurisdiction in the learned
Additional Sessions Judge, Panchkula to entertain the revision
under Section 397 of Cr.P.C. According to the learned counsel,
neither the order issuing summons to the respondent dated
30.07.2001, nor the order dated 17.04.2007, or any other order,
D
can be challenged by way of revision under Section 397 of
Cr.P .C. It was contended that both the orders viz., 30.07.2001,
as well as 17.04.2007, were only interim orders and therefore,
the bar under Section 397(2) of Cr.P.C. would operate for the
learned Additional Sessions Judge to entertain the revision
E
petition. The contention of the learned counsel was that if at all
the respondent was aggrieved as against the orders dated
30.07.2001 and' 17.04.2007, he could have only approached
the High Court under-Section 482 of the Code of Crim.inal
Procedure and not by way of a revision under Section 397 of
Cr.P.C.
F
8. It was also contended that since the sole issue raised
before the learned Chief Judicial Magistrate, while seeking to
recall the order dated 30.07.2001, was that the respondent
being a Sub Divisional Magistrate and the action complained
G
of by the appellant was in the course of discharge of his
functions as Sub Divisional Magistrate, the appellant ought to
have sought for the necessary sanction under Section 197 of
the Code of Criminal Procedure, before preferring a complaint
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558
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A before the learned Chief Judicial Ma91strate. It was also
contended that it would be a question, which could have qeen
gone into by the learned Trial Judge at the time of trial in as
much as, according to the appellant the manner in which the
respondent and the other accused behaved in the house of the
8 appellant would be a relevant factor to determine the said
question.
9. According to the appellant, on 26.06.1997, Shri R.C.
Chopra came to her house at about 09.30 P.M. to discuss
about the evidence to be adduced in the Court relati~g to the
C complaint filed by the appellant, as against one Smt. Maya Rani
in the Court of the learned Chief Judicial Magistrate,
Panchkula, that when they were discussing about the same, at
the instance of the respondent herein, the Tehsildar, the second
acc:used, DSP the third accused, ASI the fourth accused, Head
D Constable the fifth accused, along with accused No.7 and 8 who
were having video cameras, forcibly entered the appellant's
house in civil dress, woke up the children of the appellant and
questioned them with a view to insult them in the presence of
the children as to what R.C. Chopra was doing in her residence.
E It was further alleged that R.C. Chopra was directed to pull
down his clothes and while sucb activities were going on, the
appellant was pleading for mercy ~nd the second accused
directed for a thorough search of the suitcase, trunks, almirah
and the personal belongings of the appellant and thus, created
F a nasty scene in her house. It was alleged that Shri. R.C.
Chopra and the appellant were made to board a jeep brought
by the third accused and were taken to the Civil Hospital, Kalka,
where the appellant was forcibly examined by a male doctor
and was also not allowed to contact her friends through
G telephone. According to the appellant, even though R.C. Chopra
had an order of anticipatory bail granted by the learned
Additional Sessions Judge, Ambala, the first accused declined
to abide by the said order and therefore, the appellant had to
prefer a complaint before the learned Chief Judicial Magistrate,
H Panchkula. It was contended that the above conduct of the
URMILA DEVI v. YUDHVIR SINGH
559
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
respondent and other accused cannot be construed as on,e
A
performed in the course of discharge of their official duties and
therefore, the learned Chief Judicial Magistrate, Panchkula
rightly issued summons in the cor .. ..,laint preferred by the
appellant and also declined to recall the same holding that once
summons were issued, there was no power vested in the Chief
B
Judicial Magistrate to review his own order. Therefore, it was
contended on behalf of the appellant that the said order of the
learned Chief Judicial Magistrate, Panchkula being an interim
order, revision under Section 397 Cr.P.C. before the learned
Additional Sessions Judge was not maintainable and c
consequently, the order of the High Court in declining to interfere
with the same is liable to be set aside and the order of the
learned Additional Sessions Judge dated 10.03.2008, is also
liable to be set aside.
10. As against the above submissions, the learned senior
D
counsel appearing for the respondent contended that this Court
has held in innumerable decisions that an order-issuing
summons is not an interim order, but an intermediate order and
therefore, the jurisdiction of the revisional Court under Section
397 of Cr.P.C. was not ousted. It was also contended that in
E
any event, when the inherent jurisdiction of the High Court was
invoked by the appellant herself, the whole issue as regards
the validity of the issuance of summons by the learned Chief
Judicial Magistrate, which was the subject matter of challenge
was open, that the High Court could validly examine the
F
correctness of the issuance of summons by the learned Chief
Judicial Magistrate and therefore no fault can be found with the
order of the High Court impugned in this appeal.
11. The learned counsel for the appellant by relying upon
G
the decisions in Ada/at Prasad vs. Roop/al Jindal and others
- (2004) 7 SCC 338, Bho/u Ram vs. State of Punjab and
another - (2008) 9 SCC 140, N.K. Sharma vs. Abhimanyu -
(2005) 13 SCC 213 and Subramanium Sethuraman vs. State
of Maharashtra and another - (2004) 13 sec 324, contended
H
560
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A that only the jurisdiction of the High Court under Section 482
Cr.P.C. alone could have been invoked, as against the order
of the learned Chief Judicial Magistrate deciding to issue
summons against the respondent and not by way of revision
under Section 397 Cr.P.C.
B
12. The learned counsel for the respondent relied upon the
decisions in K. K. Patel and another vs. State of Gujarat and
another reported in AIR 2000 SC 3346, where the earlier
decisions of this Court in Amar Nath and others vs. State of
C Ha1yana - (1977) 4 SCC 137, Madhu Limaye vs. State of
Maharashtra - (1977) 4 SCC 551, V.C. Shukla vs. State
through CBI - 1980 2 SCR 380 and Rajendra Kumar Sitaram
Pande and others vs. Uttam and another-AIR 1999 SC 1028,
were followed, which was reiterated in Adalat Prasad (supra) .
. Reliance was also placed upon the recent decision of this Court
D in Dharimal Tobacco Products Ltd. and others vs. State of
Maharashtra and another reported in AIR 2009 SC 1032.
13 Having heard the learned counsel for the appellant, as
well as the respondent and having perused the orders of the
E learned Chief Judicial Magistrate, Panchkula, the learned
Additional Sessions Judge, Panchkula, as well as the judgment
of the High Court impugned in this appeal, we feel that the
minute distinction as between the two sets of decisions dealing
with the question as to whether the order issuing summons can
F be construed as an interim order or an intermediate order on
the one hand and what is the scope of challenging such an
order by way of revision under Section 397 Cr.P.C needs to
be highlighted. We feel that having regard to the above
mentioned decisions, which dealt with the said question, it has
G become imperative for this Court to give an authoritative
pronouncement by reconciling the above decisions, which have
dealt with the jurisdictional issue raised under section 397
Cr.P.C. and the nature of the order and also as to how to
construe an order passed by the learned Judicial Magistrate,
H while deciding to issue summons to a party under Section 202
Cr.P.C.
URMILA DEVI v. YUDHVIR SINGH
561
[FAKKIR MOHAMED· IBRAHIM KALIFULLA, J.]
14. In the decision in K.M. Mathew vs. State of Kera/a and
A
another reported in (1992) 1 sec 217, it was held that'the
order issuing the process is an interim order and not a judgm~nt
and it can be varied or recalled. It was held in paragraph 8 that
the fact that the process has already been issued is no bar to
drop the proceedings if the complaint on the very face of it does
not disctose any offence against the accused. Here and now,
we want to make it abundantly clear that in the said decision,
this Court did not examine the question about the reviseability
B
of an order passed under Section 204 Cr.P.C., either by the
Sessions Judge or by the High Court in exercise of its revisional c
jurisdiction under Section 397 Cr.P.C. On the other hand in the
decision in Rajendra Kumar Sitaram Pande (supra) this
Court after referring to the earlier decisions in Amar Nath
(supra), Madhu Limaye (supra) and V.C. Shukla (supra) held
as under in paragraph 6:
"6 ..... this Court has held that the term 'interlocutory order'
used in the Code of Criminal Procedure has to be given
a very liberal construction in favour of the accused in order
D
to ensure complete fairness of the trial and the revisional
power of the High Court or the Sessions Judge could be
E
attracted if the order was not purely interlocutory but
intermediate· or quasi final. This being the position of
law, it would not be appropriate to hold that an order
directing issuance of proce.sS is purely interlocutory and,
therefore, the bar under sub-section (2) of Section 397
F
would apply. On the other hand, it must be held to be
intermediate or quasi final and, therefore. the
revisional jurisdiction under Section 397 could be
exercised against the same. The High Court, therefore,
was not justified in coming to the conclusion that the
G
Sessions Judge had no jurisdiction to interfere with the
order in view of the bar under sub-section (2) of Section
397 of the Code." (Emphasis added)
15. This decision makes it clear that an order directing
H
562
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A issuance of process is an intermediate or quasi final order and
therefore, the revisional jurisdiction under Section 397 Cr.P.C.
can be exercised against the said order. This view was
subsequently reiterated by this Court in K.K. Patel (supra).
After making reference to the cases of Madhu Limaye (supra},
B V.C. Shukla (supra), as well as Rajendra Kumar Sitaram
Pande (supra}, this Court laid down the test for finding out as
to what order can be construed as an interim order in order to
find out the exercisability of the revisional jurisdiction under
Section 397 (2) of Cr.P.C. The said part of the order contained
C in Para 12 can be usefully referred to which reads as under:
D
E
"12 ..... The feasible test is whether by upholding the
objections raised by a party, would it result in culminating
the proceedings, if so any orqer passed on such
objections would not be merely interlocutory in nature as
envisaged in S.397(2) of the Code. In the present case,
if the objection raised by the appellants were upheld
by the Court the entire prosecution proceedings
would have been terminated. Hence, as per the said
standard, the order was revisable." (Emphasis added)
16. A perusal of the above referred two decisions
discloses that the reviseability of the or~er passed under
Section 204 Cr.P.C. either by the Sessions Judge or the High
Court, was never challenged and the decision that such an
F order is revisable under Section 397 Cr.P.C. therefore, continue
to remain even as on date. It is also necessary to point out that
the ratio of the decision in K.M. Mathew (supra) that the power
of the Criminal Court to review its own order passed under
Section 204 Cr.P .C. was inherent in the absence of any
G specific provision in the Cr.P.C. was referred for consideration
by a larger Bench of three-Judge in the decision in Adalat
Prasad (supra).
17.