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Sunil Kumar Sethia And 3 Ors vs Devendra Kumar Sethia And Anr on 29 April, 2020

Page No.# 1/7

GAHC010116412019

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Pet. 393/2019

1:SUNIL KUMAR SETHIA AND 3 ORS.
S/O SRI KAMAL CHAND JAIN (SETHIA)
R/O SLUICE GATE
RAJKAMAL BUILDING
SHNATIPUR
BHARALUMUKH
GUWAHATI-781009

2: MANOJ KUMAR SETHIA
S/O SRI KAMAL CHAND JAIN (SETHIA)
R/O SLUICE GATE
RAJKAMAL BUILDING
SHNATIPUR
BHARALUMUKH
GUWAHATI-781009

3: PARTHA CHATARJEE
GENERAL MANAGER OF HOTEL RAJMAHAL
A.T. ROAD
PALTAN BAZAR
P.O.-GUWAHATI-781001

4: NARAYAN SAHA
ACCOUNTANT OF HOTEL RAJMAHAL
A.T. ROAD
PALTAN BAZAR
P.O.-GUWAHATI-781001
KAMRUP(M)
ASSAM
VERSUS

1:DEVENDRA KUMAR SETHIA AND ANR.
S/O SRI BADARMAL SETHIA
HOTEL RAJMAHAL
Page No.# 2/7

A.T.ROAD
PALTANBAZAR
PIN-781001
R/O AMTALA GALI
BYE LANE NO. 1
REHABARI
PALTANBAZAR
PIN-781008

2:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR
ASSAM

Counsel for petitioners : Mr. OP Bhati

Counsel for respondent No.1 : Mr. RK Agarwala
Counsel for respondent No.2 : Mr. NJ Dutta,
Additional Public Prosecutor, Assam

BEFORE
HON’BLE THE CHIEF JUSTICE MR. AJAI LAMBA

29.04.2020

The Court proceedings have been conducted by means of creating a Virtual Court with
the help of technology, so as to maintain distance between the staff, Advocates and the
Presiding Judge.

2. I have heard Mr. OP Bhati, learned counsel for the petitioners and Mr. RK Agarwala,
learned counsel for respondent No.1 and Mr. NJ Dutta, learned Additional Public Prosecutor,
Assam for respondent No.2.

3. Sri Sunil Kumar Sethia, Sri Manoj Kumar Sethia, Sri Partha Chatarjee and Sri Narayan
Saha have filed this petition under Section 482 of Code of Criminal Procedure for quashing of

Complaint Case No.3997C/2017 pending in the Court of Sub-Divisional Judicial Magistrate
No.I, Kamrup (Metro), Guwahati AND order dated 22.2.2019 passed in CR Case

No.3997C/2017 by the Sub-Divisional Judicial Magistrate, First Class, Kamrup (Metro),
Guwahati.

4. It appears that respondent No.1, Sri Devendra Kumar Sethia filed a criminal complaint
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which has been placed on record as Annexure-1.

The Magistrate after recording statements of the complainant under Section 200 CrPC
and hearing the counsel for the complainant found prima facie material indicating commission
of offence under Section 406 IPC by Sri Sunil Kumar Sethia, Sri Manoj Kumar Sethia, Sri
Partha Chatarjee and Sri Narayan Saha, the petitioners in this petition. Cognizance of offence
was taken and the said persons were summoned vide order dated 22.2.2019 which has been
challenged.

5. Learned counsel for the petitioners have been confronted with the law to the effect
that order of summoning would be revisable and therefore he may file revision petition before
the Court of Sessions, if so advised.

Learned counsel for the petitioners, however, contends that since the complaint has also
been challenged in these proceedings, the petition be entertained.

6. Learned counsel for the petitioners has been confronted with the fact that the
complaint per se cannot be challenged because filing of complaint might not provide cause of
action to the accused to challenge the same, in absence of an order for summoning. It is only
because the accused in the complaint have been summoned to stand trial that cause of
action has arisen.

Learned counsel for the petitioners has not been able to dispute this proposition of law.

7. Hon’ble Supreme Court of India in Amar Nath and others vs. State of Haryana and
another [(1977) 4 SCC 137] was faced with somewhat similar facts, and proposition of law.
The issue was whether order of summoning the accused was an interlocutory order, and
therefore not revisable under Section 397 of Code of Criminal Procedure; or it decides rights
of the parties or it substantially affects the rights of the accused and therefore is revisable.
The Court held that such an order cannot be said to be an interlocutory order. It has been
specifically held that revision against such an order summoning the accused to stand trial was
fully competent under Section 397 CrPC.

8. I would like to extract the relevant portions of the judgment rendered by Hon’ble
Supreme Court of India in Amar Nath’s case (supra).

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“1. This appeal by special leave involves an important question as
to the interpretation, scope, ambit and connotation of the word
“interlocutory order” as appearing in sub-section (2) of Section 397 of
the Code of Criminal Procedure 1973. For the purpose of brevity, we shall
refer to the Code of Criminal Procedure, 1898 as “the 1898 Code”, to the Code
of Criminal Procedure, 1898 as amended in 1955 as “the 1955 Amendment”
and to the Code of Criminal Procedure, 1973 as “the 1973 Code”. The appeal
arises in the following circumstances.

2. An incident took place in Village Amin on April 23, 1976 in the course of
which three persons died and FIR 139 dated April 23, 1976 was filed at police
station Butana, District Karnal at about 5.30 p.m. The FIR mentioned a number
of accused persons including the appellants as having participated in the
occurrence which resulted in the death of the deceased. The police, after
holding investigations, submitted a charge-sheet against the other accused
persons except the appellants against whom the police opined that no case at
all was made out as no weapon was recovered nor was there any clear
evidence about the participation of the appellants. The police thus submitted its
final report under Section 173 of the 1973 Code in so far as the appellants were
concerned. The report was placed before Mr. B.K. Gupta, the Judicial
Magistrate, First Class, Karnal, who after perusing the same set the appellants
at liberty after having accepted the report. It appears that the complainant filed
a revision petition before the Additional Sessions Judge, Karnal against the
order of the Judicial Magistrate, First Class, Karnal releasing the appellants, but
the same was dismissed on July 3, 1976. The informant filed a regular
complaint before the Judicial Magistrate, First Class, on July 1, 1976 against all
the 11 accused including the appellants. The learned Magistrate, after having
examined the complainant and going through the record, dismissed the
complaint as he was satisfied that no case was made out against the
appellants. Thereafter the complainant took up the matter in revision before the
Sessions Judge, Karnal, who this time accepted the revision petition and
remanded the case to the Judicial Magistrate for further enquiry. On
November 15, 1976, the learned Judicial Magistrate, on receiving the
order of the Sessions Judge, issued summons to the appellants
straightaway. The appellants then moved the High Court under Section 482
and Section 397 of the 1973 Code for quashing the order of the Judicial
Magistrate mainly on the ground that the Magistrate had issued the summons in
a mechanical manner without applying his judicial mind to the facts of the case.
The High Court dismissed the petition in limine and refused to
entertain it on the ground that as the order of the Judicial Magistrate
dated November 15, 1976 summoning the appellants was an
interlocutory order, a revision to the High Court was barred by virtue
of sub-section (2) of Section 397 of the 1973 Code. The learned Judge
further held that as the revision was barred, the Court could not take up the
case under Section 482 in order to quash the very order of the Judicial
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Magistrate under Section 397(1) of the 1973 Code. Otherwise the very object of
Section 397(2) would be defeated.

3. While we fully agree with the view taken by the learned Judge that
where a revision to the High Court against the order of the Subordinate Judge
is expressly barred under sub-section (2) of Section 397 of the 1973 Code the
inherent powers contained in Section 482 would not be available to defeat the
bar contained in Section 397(2). Section 482 of the 1973 Code contains the
inherent powers of the Court and does not confer any new powers but
preserves the powers which the High Court already possessed. A harmonious
construction of Sections 397 and 482 would lead to the irresistible conclusion
that where a particular order is expressly barred under Section 397(2) and
cannot be the subject of revision by the High Court, then to such a case the
provisions of Section 482 would not apply. It is well settled that the inherent
powers of the Court can ordinarily be exercised when there is no express
provision on the subject-matter. Where there is an express provision, barring a
particular remedy, the Court cannot resort to the exercise of inherent powers.

4. xxxxxxxxxxxx

5. xxxxxxxxxxxx

6. Let us now proceed to interpret the provisions of Section 397 against the
historical background of these facts. Sub-section (2) of Section 397 of the 1973 Code
may be extracted thus :

“The powers of revision conferred by sub-section (1) shall not be
exercised in relation to any interlocutory order passed in any appeal,
inquiry, trial or other proceeding.”

The main question which falls for determination in this appeal is as to what is
the connotation of the term “interlocutory order” as appearing in sub-section (2) of
Section 397 which bars any revision of such an order by the High Court. The term
“interlocutory order” is a term of well-known legal significance and does not present
any serious difficulty. It has been used in various statutes including the Code of Civil
Procedure, Letters Patent of the High Courts and other like statutes. In Webster’s New
World Dictionary “interlocutory” has been defined as an order other than final decision.
Decided cases have laid down that interlocutory orders to be appealable must be those
which decide the rights and liabilities of the parties concerning a particular aspect. It
seems to us that the term “interlocutory order” in Section 397(2) of the 1973 Code has
been used in a restricted sense and not in any broad or artistic sense. It merely
denotes orders of a purely interim or temporary nature which do not decide or touch
the important rights or the liabilities of the parties. Any order which substantially
affects the right of the accused, or decides certain rights of the parties cannot be said
to be an interlocutory order so as to bar a revison to the High Court against that order,
because that would be against the very object which formed the basis for insertion of
this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders
summoning witnesses, adjourning cases, passing orders for bail, calling for reports and
such other steps in aid of the pending proceeding, may no doubt amount to
interlocutory orders against which no revision would lie under Section 397(2) of the
1973 Code. But orders which are matters of moment and which affect or adjudicate
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the rights of the accused or a particular aspect of the trial cannot be said to be
interlocutory order so as to be outside the purview of the revisional jurisdiction of the
High Court.

7. xxxxxxxxxxx

8. xxxxxxxxxxx

9. xxxxxxxxxxx

10. xxxxxxxxxxx
So long as the Judicial Magistrate had not passed this order, no
proceedings were started against the appellants, nor were any such
proceedings pending against them. It was only with the passing of the
impugned order that the proceedings started and the question of the appellants
being put up for trial arose for the first time. This was undoubtedly a valuable
right which the appellants possessed and which was being denied to them by
the impugned order. It cannot, therefore, be said that the appellants were not
at all prejudiced, or that any right of their’s was not involved by the impugned
order. It is difficult to hold that the impugned order summoning the appellants
straightaway was merely an interlocutory order which could not be revised by
the High Court under sub-sections (1) and (2) of Section 397 of the 1973 Code.
The order of the Judicial Magistrate summoning the appellants in the
circumstances of the present case, particularly having regard to what had
preceded, was undoubtedly a matter of moment, and a valuable right of the
appellants had been taken away by the Magistrate’s passing an order prima
facie in a mechanical fashion without applying his mind. We are, therefore,
satisfied that the order impugned was one which was a matter of moment and
which did involve a decision regarding the rights of the appellants. If the
appellants were not summoned, then they could not have faced the trial at all,
but by compelling the appellants to face a trial without proper application of
mind cannot be held to be an interlocutory matter but one which decided a
serious question as to the rights of the appellants to be put on trial.”

(emphasised by me)

9. Considering the law on the issue “whether order of summoning an accused is an
interlocutory order or not,” in context of law laid down by Hon’ble Supreme Court in Amar
Nath’s case (supra), as extracted above, I am of the considered opinion that revision would
be maintainable against the order of summoning.

10. This petition, under the circumstances, is disposed of with liberty to the petitioners to
avail remedy of filing a revision, if so advised.

Since the order of summoning has not been quashed by this Court in these
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proceedings, the Magistrate may proceed with the case.

11. Let copy of this order be provided under the signature of the Court Master.

CHIEF JUSTICE

Comparing Assistant

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