Shesh, Shanker Lal, Bhoore Lal and Ishwar Dayal vs Shri Krishna and State of U.P.

S.K. Jain, J.—This criminal revision has been filed against the order dated 4.11.1999,passed by the learned I Addl. Sessioins Judge, Mainpuri in criminal revision No. 285 of 1997 filed by opposite party No. 1, whereby the learned Addl. Sessions Judge allowed the revision setting the aside the order dated 8.8.1997 passed by the learned Chief Judicial Magistrate recalling the order of summoning the revisionist u/s 364 302 and 201 of the Indian Penal Code.

Opposite party No. 1 herein filed a complaint u/s 364 302 and 201 of the Indian Penal Code against the revisionist alleging that on 18.1.1996 at 7 a.m. Revisionist Bhure armed with gun, Shesh armed with katta along with other two revisionists entered his Baithak, where his Tau Nathoo ram was lying on a cot. The four revisionists forcibly tried to take Nathoo Ram towards their car. Nathoo Ram resisted. The revisionist Shesh took out his tamancha and threatened that if some body tried to interfere he would be shot dead. The revisionist took away Nathoo ram in their car and committed murder of Nathoo Ram on 26.3.1996 in the mid night at 12 hours and threw his dead body in the canal. This occurrence was witnessed by the sister of opposite party No. 1 Saroj, his brother in law, Roop Narain and one Laxmi Narain. Taking cognizance of this complaint, the learned Chief Judicial Magistrate, Mainpuri passed an order dated 9.9.1996, summoning the revisionist under Sections referred to above.

Being aggrieved by the said order of issuance of process the revisionists filed objection before the learned Chief Judicial Magistrate on 24th January, 1997. The learned Chief Judicial Magistrate on the basis of objections filed by the revisionists recalled his earlier order summoning the revisionists vide order dated 8.8.199. Being aggrieved by-the order dated 8.8.1997, the opposite party No. 1 filed criminal revision No. 485 of 1997 in the court of Sessions Judge, Mainpuri. The learned I Addl. Sessions Judge, Mainpuri to whom the revision was transferred for disposal vide order dated 4.11.1997 allowing the revision/petition had set aside the the order of the Chief Judicial Magistrate, dated 8.8.1997.

It is against the said order of the I Addl. Sessions Judge, the revisionists are before this Court in this revision/petition.

I have heard learned Counsel for the revisionist Sri S.D.N. Singh and the learned AGA. None appeared for opposite party No. 1.

Learned Counsel for the revisionist contended that the order passed by the leaned I Addl. Sessions Judge is wholly illegal. He further contended that opposite party No. 1 before filing complaint before the learned Chief Judicial Magistrate had made application u/s 156(3) Cr.P.C. in the court of I Add. Munsif Magistrate with the same allegations which opposite party No. 1 levelled against the revisionist in his complaint filed before the Chief Judicial; Magistrate. On the application of opposite party No. 1 u/s 156(3). Learned Munsif Magistrate had called for the report of the concerned police station and the police after enquiry found the allegations regarding abduction and murder of Nathoo Ram to be false and the opposite party No. 1 after this report got his application u/s 156(3) Cr.P.C. dismissed. It has been further submitted by the learned Counsel that Nathoo Ram was real father in law of revisionist No. 1 and 2 who had executed a registered sale deed dated 19.1.1996 in favour of his daughters Uma Devi and Munni Devi, married to revisionist No. 1 and 2 respectively. Nathoo Ram had also executed a registered general power of attorney in favour of revisionist No. 1 and 2 and that Nathoo Ram died his natural death. It has also been submitted by the learned Counsel that the I Addl. Sessions Judge had allowed the revision solely on the ground that the learned Magistrate; relied upon the documents filed by the revisionists in support of their application to recall the order of summoning them and some of them were photostat copies which could not be read in evidence and the summoning order could not be recalled on the basis of these papers.

Learned Counsel in support of his contention has relied upon the case of Kunstocom Electronics (I) Pvt. Ltd. v. GILT Pack India 2002 (1) U.P. C R 270 and case of Shyam Lal Vs. State of U.P. and Others,

The learned AGA contended that the learned CJM had no jurisdiction to review or to recall his earlier order summoning the revisionists u/s 364 302 and 201 I.P.C. It has also been submitted by the learned AGA that there is no illegality in the impugned order of learned I Addl. Sessions Judge.

I have considered the arguments of the learned Counsel for the parties and perused the record.

The Hon''ble Supreme Court in the case of Adalat Prasad v. Roop Lal Jindal L 2004 ACC 924 has held that if the Magistrate takes cognizance and issues process, he has no power to review that order and only remedy lies in invoking Section 482 Cr.P.C.

In the case of Subramanium Sethu Raman v. State of Maharashtra and Anr. (2004) 13 S.C.C. 324 , considering the view taken in the case of Adalat Prasad the Hon"ble Supreme Court observed that it is not permissible to a Magistrate to reconsider his decision to issue process in the absence of any provision in the Criminal Procedure Code. Again Hon''ble Supreme Court in the case of Poonam Chand Jain and Another Vs. Fazru, affirmed the aforesaid view laid down in the case of Adalat Prasad (supra) and Subramanium Sethuraman (supra).

The case laws cited by the learned Counsel for the appellant are not applicable in the facts of the present case.

In view of the above, I am of the opinion that the learned Chief, Judicial Magistrate had no jurisdiction to recall the summoning order of lithe revisionist on the basis of the objections and documents filed by r the revisionists to recall the summoning order. The defence of the accused can be considered by the learned Chief Judicial Magistrate a the time of trial.

The impugned order dated 4.11.99, passed by the I Addl. Sessions Judge, Mainpuri in Criminal Revision No. 285 of 1997 does not call for interference by this court. The revision/petition is devoid of merits and it is hereby dismissed.