2005 (6) TMI 572 - HC - Indian Laws

Summary

Issues Involved:
1. Quashing of process issued under Section 406 of IPC.
2. Availability of revision before the Sessions Court against the Magistrate's order.
3. Applicability of Section 482 of the Criminal Procedure Code.
4. Whether the order issuing process is an interlocutory order.
5. Precedents regarding the maintainability of revision against the issuance of process.

Detailed Analysis:

1. Quashing of Process Issued Under Section 406 of IPC:
The applicants sought to quash the process issued against them under Section 406 of the Indian Penal Code by the Additional Chief Metropolitan Magistrate, Mumbai. The application was made under Section 482 of the Criminal Procedure Code.

2. Availability of Revision Before the Sessions Court Against the Magistrate's Order:
The court opined that the applicants have an efficacious remedy of preferring a revision before the Sessions Court against the Magistrate's order issuing process. The court suggested that it would be appropriate for the applicants to prefer such a revision.

3. Applicability of Section 482 of the Criminal Procedure Code:
The applicants argued, citing the Supreme Court's decision in Adalat Prasad v. Rooplal Jindal and Ors., that in the absence of any review power or inherent power with the subordinate Criminal Courts, the remedy lies in invoking Section 482 of the Criminal Procedure Code. They also referred to Subramanium Sethuraman v. State of Maharashtra and Anr., where it was held that the only course available to challenge the issuance of process is through a petition under Section 482.

4. Whether the Order Issuing Process is an Interlocutory Order:
The court examined whether the order issuing process is an interlocutory order. It referred to several Supreme Court decisions, including Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Anr., K.K. Patel and Anr. v. State of Gujarat and Anr., and Amarnath v. State of Haryana and Anr., which held that an order issuing process is not an interlocutory order and hence, a revision against such an order is maintainable. The court also cited the case of Madhu Limaye v. State of Maharashtra, where it was reaffirmed that an order issuing process is not an interlocutory order.

5. Precedents Regarding the Maintainability of Revision Against the Issuance of Process:
The court discussed the precedents set by the Supreme Court, particularly in the cases of Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr., and S.K. Bhatt v. State of U.P., which clarified that an order issuing process is not an interlocutory order and that revision against such an order is maintainable. The court also referred to the principle laid down in the case of Commissioner of Income Tax v. Sun Engineering Works (P) Ltd., emphasizing that a judgment must be read as a whole and not in isolation.

Conclusion:
The court concluded that the applicants have an efficacious remedy of preferring a revision against the order of the Magistrate issuing process. It was held that the inherent power under Section 482 of the Criminal Procedure Code should not be resorted to if there is a specific provision in the Code for redress of the grievance. The court granted liberty to the applicants to prefer a revision before the concerned Sessions Court and stayed the proceedings before the trial court for three weeks to allow the applicants to take necessary steps. The criminal application was disposed of accordingly.