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Rahul Verma v. State Of U.P. & Another - CRIMINAL MISC. WRIT PETITION No. 1667 of 2007 [2007] RD-AH 2090 (8 February 2007)


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Rahul Verma ......................................Petitioner.


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

Hon. Mrs. Poonam Srivastav, J.

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

The opposite party no. 2 filed a criminal complaint against the accused under Section 138 Negotiable Instruments Act in the court of Additional Chief Judicial Magistrate, court no.4, Aligarh. The Magistrate after recording the statements under Sections 200 and 202 Cr.P.C. summoned the accused under Section 138 Negotiable Instruments Act vide order dated 5.10.2006. This order was challenged in a criminal revision. The revisional court declined to examine the case on merits on the basis of the principles laid down by the Apex Court in the case of Adalat Prasad Vs. Rooplal Jindal and others, 2005 (1) JIC, 164 (SC) and Subramanium Sethuraman Vs. State of Maharashtra and another, 2005(1) JIC (SC) page 122.

After hearing the respective counsels and learned A.G.A., I am not in agreement with the observations of the learned Sessions Judge that the Apex Court has ruled in the case of Adalat Prasad (Supra) and Subramanium Sethuraman (Supra) that a superior court such as the court of Session is debarred from examining the order the Magistrate on merits. Observations in the case of Subramanium Sethuraman, paragraph 14 is quoted below:-

"14. In Adalat Prasad 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 lay down the correct law"    

It is evident that the Apex Court has restricted review of its own order by the Magistrate after issuing process or reconsideration of his own decision but nowhere restricted a superior court from examining the summoning order on merits. The impugned order passed in revision appears to be on wrong interpretation of law. In the circumstances, the order passed by the learned Incharge Sessions Judge, Aligarh dated 23.1.2007 is quashed and the matter is remanded to the revisional court to examine the summoning order on merits and pass fresh orders, after giving an opportunity of hearing to the respective parties within a period of three weeks from the date, a certified copy of this order is produced before him.  

With the aforesaid observations, this writ petition is finally disposed of.

Dt. 8.2.2007.



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