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Nageshwar Prasad Mishra & Others v. State Of U.P. & Another - CRIMINAL MISC. WRIT PETITION No. 4194 of 2007 [2007] RD-AH 5978 (3 April 2007)


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                                                                      COURT NO.51


Nageshwar Prasad Mishra............................................Petitioner.


State of U.P. and another.............................................Respondents.

Hon'ble Mrs. Poonam Srivastav, J.

Heard learned counsel for the petitioner and learned A.G.A. for  the State.

The petitioner is aggrieved by the judgment and order dated 20.1.2007 passed by the Sessions Judge, Allahabad  in criminal revision no. 61 of 2007, Nageshwar Prasad Mishra and others Vs. State of U.P. The revision was dismissed as not maintainable on the principles enunciated by the Apex Court in the case of Adalat Prasad Vs. Roop Lal Jindal and others, 2004 (50) ACC page 924, Subramanayam Sethuraman Vs. State of Maharashtra and another 2005 (51) ACC page 684. No finding has been recorded on merits in the revision. Submission is that revision of the petitioner was dismissed on wrong interpretation of law. The Apex Court ruled that the Magistrate cannot review its own order, once he has issued summons after application of mind summoning the accused. Decision in the case of K.M. Mathew Vs. State of Kerala and another 1992 JIC page 212 (SC) was overruled by the Apex Court and was held not to be a good law.  No doubt observation of the Apex Court in the case of Adalat Prasad (supra) is that the summoning order can be challenged by invoking inherent powers in a criminal misc. application under Section 482 Cr.P.C. but revision in a superior court is not completely debarred.  The Apex Court held in the case of Madhu Limaye Vs. State of Maharashtra AIR 1978 SC page 47  that the summoning order is a final order. This view taken in the case of Amar Nath and others Vs. State of Harayana and others AIR 1977 SC page 2185 was affirmed. The Apex Court was of the view that cardinal test whether an order is "interlocutory order" or is covered within four corners of a "final order"- is that an order rejecting the plea of the accused on a point if accepted, will conclude the particular proceedings, can not be termed as interlocutory order.

In the circumstances, I am of the considered view that the revisional court could not decline to give its decision on merits treating the case of Adalat Prasad (supra) as a complete bar. Exercise of revisional court's power was not specifically barred in the said decision. Use of expression that the summoning order can be challenged under section 482 Cr.P.C., cannot be said to be a complete prohibition.

In view of what has been stated above, the writ petition is finally disposed of  and the matter is remanded to the revisional court to give its decision on merits without raising any objection on the question of maintainability. It is made clear that the revisional court will not be influenced by any observation made in this order.

Dt. 3.4.2007



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