Subramanium Sethuraman Vs.
State of Maharashtra & Anr  Insc 555 (17 September 2004)
N. Santosh Hegde,
S.B.Sinha & Tarun Chatterjee Santosh Hegde,J.
This appeal is preferred by accused No.4 in Criminal Complaint Case
No.2209/S/1997 pending before the Metropolitan Magistrate, 33rd Court at
Ballard Pier, Bombay challenging an order made by the High Court of Judicature
at Bombay in a revision petition filed by the 2nd respondent herein whereby the
High Court allowed the revision petition and set aside the order of discharge
made by the trial court.
The facts necessary for the disposal of this appeal are as follows:
The 2nd respondent herein lodged a complaint before the Additional Chief
Metropolitan Magistrate for offence punishable under Section 138 of the
Negotiable Instruments Act against the appellant herein and four others which
included a Company and its Directors. It is not disputed that the appellant
herein was one of the Directors of the Company. The complaint in question was
filed in December, 1996 and after following the procedure laid down in Chapter
XV and XVI of the Code of Criminal Procedure, 1973, the trial court issued
summons to the named accused in the complaint.
On receipt of the complaint, the 1st accused Company challenged the same
before the very same Magistrate on the ground that the Magistrate could not
have taken cognizance of the offence because of the defective statutory notice.
Therefore, the Company sought for its discharge. The said application came to
Thereafter, the second application for discharge was filed by the Company on
the very same ground which was allowed by the Magistrate following the judgment
of this Court in the case of K.M.Mathew vs. State of Kerala & Anr. (1992
(1) SCC 217) which judgment had held that it was open to the Magistrate taking
cognizance and issuing process to recall the said process in the event of the
summoned accused showing to the court that the issuance of process was legally
impermissible. In this process, the Magistrate came to the conclusion that the
statutory notice issued by the complainant was not in conformity with the
requirement of law.
Aggrieved by the said order of discharge made by the learned Magistrate, the
complainant challenged the same by way of a revision petition before the
learned Sessions Court on the ground that the learned Magistrate had no power
to review his earlier order because of the Bar under Section 362 of the Cr.P.C.
The Sessions Court accepted the contention of the appellant and allowed the
revision petition without going into the merits of the legality of the
The Company thereafter challenged the said order of the learned Sessions
Judge by way of a criminal writ petition filed under Article 227 of the
Constitution of India before the High Court of Judicature at Bombay. The High
Court by its order dated 20th December, 2000 rejected the said petition on the
ground that once the Magistrate records the plea of the accused and the accused
pleads not guilty then the Magistrate is bound to take all such evidence as may
be produced in support of the prosecution and there is no provision under the
Cr.P.C. enabling the Magistrate to recall the process and discharge the accused
after recording the plea of the accused. It is to be noted that there is no
dispute in regard to the fact that the plea of all the accused was recorded by
the Magistrate on 1.11.1999.
The above said order of the High Court dismissing the criminal writ petition
was challenged in a special leave petition bearing No. SLP(Crl.) No.429/2001 by
the Company before this Court. This Court rejected the SLP summarily on
5.2.2001 by the following order:
"Mr.Gopal Subramanian addressed arguments for some time. After noticing
the observations made by this Court, he requested for permission to withdraw
this SLP without prejudice (to) his contentions (to) be raised at the
appropriate stage. We therefore, dismiss this SLP as withdrawn." After
withdrawing the SLP, one would have accepted the accused in the case to
co-operate with the trial court in concluding the trial at the earliest but
that was not to be. The second round of litigation challenging the issuance of
process was then initiated by the present appellant herein who is none other
than the Executive Director of the accused-Company which had earlier fought the
litigation right up to this Court. In the fresh application filed before the
learned Magistrate, the appellant in his turn contended that the statutory
notice issued was contrary to law, hence, no cognizance could have been taken
by the learned Magistrate nor the process could have been issued. This
application was filed within 10 days after the rejection of the above said SLP
by this Court. A perusal of the averments made in the application for discharge
by the appellant in the second round of litigation shows that the said
application was also on the same grounds as was taken by the Company when it
filed the application for discharge. Surprisingly, this application of the
appellant came to be allowed by the Magistrate holding the statutory notice
issued prior to filing of the complaint was not in accordance with law and in
view of the judgment of this Court in the case of K.M.Mathew vs. State of
Kerala & Anr. (1992 (1) SCC 217) it was open to him to recall the order of
issuance of process. In that process, he allowed the application of the
appellant for discharge.
Being aggrieved by the said order of the learned Magistrate, the complainant
filed a criminal revision petition before the High Court of Judicature at
Bombay which by the impugned order reiterated its earlier view that it was not
open to the Magistrate to order the discharge of an accused once his plea has
been recorded and on that basis it allowed the revision petition of the
complainant keeping open the question of validity of the statutory notice to be
raised at the trial.
It is against the said order of the High Court, the appellant is before us
in this appeal.
It is to be noted that when this matter came up for preliminary hearing by
an order dated 6th September, 2002, this Court observed that the decision
rendered in K.M.Mathew's case (supra) may require reconsideration, therefore,
this appeal was referred to a Bench of 3-Judges. At this stage itself, it may
be relevant to mention that the correctness of the judgment in K.M.Mathew's
case (supra) came up for consideration before a 3- Judge Bench of this Court in
another case of Adalat Prasad vs.
Rooplal Jindal & Ors. (2004 (7) Scale 137). In the said case of Adalat
Prasad (supra), a 3-Judge Bench did not agree with the law laid down by this
Court in K.M.Mathew's case.
Shri Ranjit Kumar, learned senior counsel appearing for the appellant
firstly contended that principles laid down by this Court in Adalat Prasad's
case (supra) may require reconsideration because in Adalat Prasad's case this
Court proceeded on the basis that the same was a summons case but in reality it
was a warrant case covered by Chapter XIX of the Code. He nextly contended that
the High Court in this case erred in coming to the conclusion that once the
plea of the accused is recorded the Trial Court did have the jurisdiction to
entertain an application for discharge in a summons case. He submitted since
very foundation of the complaint being based on an illegal statutory notice,
the Trial Court could not have taken cognizance of the offence and issued
summons and having erroneously done so it had the power to recall the summons
and or entertain an application for discharge of an accused person. He also
contended the fact that Company's petition for discharge has been rejected
right up to this Court did take away appellant's right to separately agitate
Shri Chinmay Khaladhar, learned counsel appearing for the respondent
contended that though the case considered by this Court in Adalat Prasad's case
involved an offence which was triable as a warrant case, this Court actually
considered the power of the criminal courts to recall its earlier orders
bearing in mind the prohibition contained in Section 362 of the Code. He also
submitted the fact that in Adalat Prasad's case involved a warrant case and in
K.M.Mathew's case involved a summons case did not make any difference, so far
as the correctness of law considered by this Court in Adalat Prasad's case. He
also submitted that the appeal in hand being one triable as a summons case, the
Code has not contemplated a stage of discharge and once the plea of not guilty
is recorded the appellant has to face a trial as contemplated in Chapter XX of
the Code. He pointed out the appellant being one of the Directors of the
accused company and a co-accused, is using dilatory tactics to delay the trial
in spite of the fact the core issue involved in this case has already been
decided by this Court in the earlier S.L.P. filed by the company.
Having considered the argument of the learned counsel for the parties, we
are of the opinion that the argument of the learned counsel for the appellant
that the decision of this Court in Adalat Prasad's case requires
reconsideration cannot be accepted. It is true that the case of Adalat Prasad
pertained to a warrant case whereas in Mathew's case the same pertained to a
To this extent, there is some difference in the two cases, but that does
not, in any manner, make the law laid down by this Court in Adalat Prasad's
case a bad law. .
In Mathew's case this Court held that consequent to a process issued under
Section 204 by the concerned Magistrate it is open to the accused to enter
appearance and satisfy the court that there is no allegation in the complaint
involving the accused in the commission of the crime. In such situation, this
Court held that it is open to the Magistrate to recall the process issued
against the accused. This Court also noticed the fact that the Code did not
provide for any such procedure for recalling the process. But supported its
reasoning by holding for such an act of judicial discretion no specific
provision is required.
In Adalat Prasad's 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 laid down the
From the above, it is clear that the larger Bench of this Court in Adalat
Prasad's case did not accept the correctness of the law laid down by this Court
in K.M.Mathew's case. Therefore, reliance on K.M.Mathew's case by the learned
counsel appearing for the appellant cannot be accepted nor can the argument
that Adalat Prasad's case requires reconsideration be accepted.
The next challenge of the learned counsel for the appellant made to the
finding of the High Court that once a plea is recorded in a summons case it is
not open to the accused person to seek a discharge cannot also be accepted. The
case involving a summons case is covered by Chapter XX of the Code which does
not contemplates a stage of discharge like Section 239 which provides for a
discharge in a warrant case. Therefore, in our opinion the High Court was
correct in coming to the conclusion once the plea of the accused is recorded
under Section 252 of the Code the procedure contemplated under Chapter XX has
to be followed which is to take the trial to its logical conclusion.
As observed by us in Adalat Prasad's case the only remedy available to an
aggrieved accused to challenge an order in an interlocutory stage is the
extraordinary remedy under Section 482 of the Code and not by way of an
application to recall the summons or to seek discharge which is not
contemplated in the trial of a summons case.
The learned counsel for the appellant then sought leave of this Court to
approach the High Court by way of 482 petition questioning the issuance of
process by the Magistrate. The same was very strongly opposed by the learned
counsel for the respondents who contended that the complaint in this case was
filed as far back as 24th of December, 1996 and though there was a direction
earlier for an early disposal of the trial, appellant and the other accused
have successfully managed to keep the trial in abeyance by initiating one
proceeding after the another even up to this Court. He submitted both this
Court as well as the High Court in the earlier proceedings has left the
question of validity of statutory notice to be considered at the trial but the
accused persons including the appellant herein are time and again raising the
same issue with a view to delay the trial, hence no such permission as sought
for by the appellant should be granted.
We see that this Court while dismissing earlier S.L.P. as withdrawn had left
the question of legality of the notice open to be decided at the trial.
Therefore, legitimately the appellant should raise this issue to be decided at
the trial. Be that as it may, we cannot prevent an accused person from taking
recourse to a remedy which is available in law. In Adalat Prasad's case we have
held that for an aggrieved person the only course available to challenge the
issuance of process under Section 204 of the Code is by way of a petition under
Section 482 of the Code.
Hence, while we do not grant any permission to the appellant to file a
petition under Section 482, we cannot also deny him the statutory right
available to him in law. However, taking into consideration the history of this
case, we have no doubt the concerned court entertaining the application will
also take into consideration the objections i.e. raised by the respondent in
this case as to delay i.e. being caused by the entertainment of applications
and petitions filed by the accused.
With the above observations this appeal fails and the same is dismissed.