Mohd.Yousuf Wani vs Suresh Sethi and another

Muzaffar Jan, J.—Heard the learned counsel for the parties.

Admit Mr. Syed Mir Ghulam Nabi takes notice on behalf of respondents. It seems that Mohd.Yousuf Wani respondent filed complaint (File

No. 45, dated of Inst. 25.01.1998, date of decision: nil) under Section 420 RPC against the present petitioner on the allegations that the petitioner

(accused) cheated the respondent and the respondent was put to wrongful loss of Rs. 66,000/. The trial court after being satisfied of the prime

facie genuineness of the complaint, took cognizance, and issued bailable warrants on 08.10.1999 for securing the presence of the petitioner for

03.12.1999. The petitioner (accused) in the complaint did not appear on 03.12.1999 but submitted an application under section 205 Cr.P.C

praying for dispensation of the personal attendance of the accused in the proceedings. The trial court heard and considered the arguments of the

learned counsel for the parties and come to the conclusion that personal attendance of the accused was essential during trial and rejected the

prayer to exempt the accused vide order dated 14.07.2000. This order of rejection dated 14th of July, 2000 was challenged in revision before 3rd

Addl. Sessions Judge, Srinagar. The parties were heard by the 3rd Addl. Session Judge and the order of the trial court dated 14.07.2000 was set

aside by his order dated 17.11.2000, with the direction to dispense with the personal attendance of the accused during entire period of trial.

It is this order dated 17.11.2000 which has been challenged in the present proceeding under section 561A.

From perusal of facts and circumstances made out from record it is apparently clear that order dated 17.11.2000 is palpable, illegal and without

any legal justification. The 3rd Addl. Sessions Judge has exceeded jurisdiction by entertaining revision against the order dated 14.07.2000 which

order is manifestly an interlocutory order. The order of rejection of exemption application by no stretch of imagination can be construed as a final

order and as such revision was not maintainable against the order dated 14.07.2000. The learned Sessions Judge did not stop at this but proceed

to commit another patent error and violation of jurisdiction by allowing the revision without making recommendation for quashing the impugned

order. The relevant portion of the order is reproduced as under:

...I am of the opinion that it is a fit case where the discretion should have been exercised in favour of the accused persons by exempting them from

personal appearance. According this revision petition is allowed, the impugned order is set aside....

The order of 3rd. Addl. Sessions Judge dated 17.11.2000 to allow the revision petition without reference to High Court, is not a mere mistake

of law but amounts to assumption of jurisdiction which did not vest in him and as such constitutes grave abuse of process of law.

Therefore, for the reasons given above the petition under section 561A is allowed. Order of 3rd. Addl. Sessions Judge, dated 17.11.2000 is

quashed and the CMPs accordingly disposed of. The Trial Court be informed accordingly. Copy of this order be sent to Mr. Rajesh Kohli,

District and Sessions Judge where ever he is posted at present.