An order issuing process for summoning the accused to face the trial is not an interlocutory order and Revision against such order is not barred by sub-section (2) of Section 397 Cr.P.C. Although the Hon'ble Apex Court has held in Adalat Prasad vs. Rooplal Jindal and others [2004 (50) ACC 924] and Subramanium Sethuraman vs. State of Maharashtra and another[2005(51) ACC 684], the only remedy available to the accused against summoning order is to invoke the jurisdiction of High Court in the proceeding under section 482 Cr.P.C. and hence, the revision against the summoning order is not maintainable, being barred by section 397 (2) Cr.P.C. that the only remedy available to the accused against summoning order is to move the High Court in the proceeding under section 482 Cr.P.C., but the matter of maintainability of Revision against summoning order was not specifically raised before the Hon'ble Apex Court in those cases. The matter in issue in both the aforesaid cases before the Hon'ble Apex Court was as to whether the magistrate is empowered to recall its summoning order. In that context, the Hon'ble Apex Court had held that the magistrate is not empowered to recall the order issuing process against the accused and the only remedy available to the accused against summoning order is to invoke the jurisdiction of High Court in the proceeding under section 482 Cr.PC. Since the matter of maintainability of Revision against summoning order was not involved in those cases, hence no opinion was expressed by the Hon'ble Apex Court on this issue.
The matter of maintainability of Revision against summoning order has been considered by the Hon'ble Apex Court in several decisions. In Rajendra Kumar Sita Ram Pandey & others vs. Uttam and another 1999 (38) ACC 438 (SC), following its earlier decisions in the case of Amarnath and others vs. State of Haryana and others 1977 Cri. LJ 1891 and Madhu Limaye vs. State of Maharashtra 1978 (15) ACC 184, the Honble Apex Court held that order issuing process for summoning the accused to face the trial is not an interlocutory order and therefore the bar under sub-section (2) of section 397 would not apply to such order. Therefore, in view of the specific law laid down by the Hon'ble Apex Court in the case of Rajendra Kumar Sita Ram Pandey (supra), Revision against summoning order is legally maintainable.
The matter of maintainability of revision was considered again by the Hon'ble Apex Court in the case of K.K. Patel and another vs. State of Gujrat and another 2000 (41) ACC 351 (SC). In para 11 of the judgment in K.K. Patel (supra), the Hon'ble Apex Court held that "it is now well-neigh settled that in deciding whether an order challenged is interlocutory or not as for section 397 (2) Cr.P.C. of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397 (2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated." Applying the principle laid down by the Hon'ble Apex Court in Amarnath vs. State of Haryana, Madhu Limaye vs. State of Maharashtra and K.K. Patel vs. State of Gujrat (supra), the order issuing process against the accused is not an interlocutory order and hence, Revision against such order would not be barred under sub-section (2) of section 397Cr.P.C.
The matter of challenging summoning order in Revision under section 397 or in proceedings under section 482 Cr.PC., was recently considered by the Hon'ble Apex Court in Dhariwal Tobaco Products Ltd. & others vs. State of Maharashtra and another 2009 (64) ACC 962. Making reference to its earlier decisions, the Hon'ble Apex Court
has specifically held that indisputably issuance of summons is not an interlocutory order within the meaning of section 397 of the Code. Therefore, in view of this observation of the Hon'ble Apex Court, the Revision against summoning order would not be barred by sub-section (2) of section 397 Cr.P.C. and is legally maintainable, although jurisdiction of the High Court under section 482 Cr.P.C. can also be invoked to challenge the summoning order, as held by the Hon'ble Apex Court in Dhariwal Tobaco Products Ltd. (supra).
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