In view of the law laid down by the Supreme Court in the case of Adalat Prasad (supra) it is not open for an accused, even in a summary case, to apply for recall of the process. If at all the accused feels aggrieved by an order of issuance of the process in a summary trial, the remedy open to him is to approach the High Court under section 482 of the Code of Criminal Procedure and that of course, is without prejudice to any other remedy which the accused may have under Article 226/227 of the Constitution of India. An accused aggrieved by the order of issuance of process by the Magistrate cannot approach the same Magistrate again with the prayer for recalling of the process. The application dated 30th July 1998 made by the present petitioner - accused no.4 before the Magistrate was for recalling of the process was clearly not maintainable in view of the decision of the Supreme Court in Adalat Prasad (supra).
Bombay High Court
Chandrakant B. Garware vs M/S.Jayheet Investments ... on 17 December, 2009
1. Heard learned counsel for the parties.
2. By this petition, the petitioner challenges the order dated 13th March 2002 passed by the Court of Sessions confirming the order dated 2
18th February 1999 passed by the learned Metropolitan Magistrate refusing to recall the process.
3. M/s.Jay Heet Investments Pvt.Ltd (hereinafter referred to as "the complainant") filed a complaint bearing Criminal Case no.64/S/95 of 1994 against Garware Paints Ltd (hereinafter referred to as "the company"), Mr.R. Venkateshan, Dy.Managing Director of Garware Paints Ltd and Mr.C.V Subramaniam, an Officer of Garware Paints for an .
offence punishable u/s.138 r/w sec.142 of the Negotiable Instruments Act. After recording the verified statement, the learned Magistrate issued process against all the three accused. Thereafter, the complainant made an application for adding Mr.Chandrakant B. Garware, the petitioner herein who was the Managing Director of the Company, and six other directors/officers of the company as party accused on the ground that they were also in charge of and responsible for its affairs to the company. The application was allowed. The order adding the applicant and other directors/officers as party accused was challenged in this court by them by filing Criminal Application No.429 of 1997 u/s.482 of the Code of Criminal Procedure. When that application came up for hearing, counsel for the complainant stated that the complainant did not wish to prosecute the complaint against 3
added accused except the present petitioner who was the Managing Director of the Company. In view of this statement, the applicants therein sought leave of the court to withdraw the criminal application no.429 of 1997. By an order dated 3rd December 1997, this court allowed the withdrawal. Thus, by virtue of withdrawal of the Criminal Application no.429 of 1997, the order joining the present petitioner as a party-accused no.4 to the complaint has become final.
4. After withdrawal of the Criminal Application no.429 of 1997, the learned Magistrate issued the summons (process) to the applicant. By an application dated 30th July 1998 made to the learned Magistrate, the applicant prayed for recall of the process issued against him. By an order dated 18th February 1999, the learned Magistrate rejected the application. The petitioner challenged the order of the Magistrate by filing a revision application, bearing revision no.218 of 1999, in the Court of Sessions. By an order dated 13th March 2002, the revision application was dismissed by the Additional Sessions Judge, Gr.Bombay. That order is impugned in the present petition.
5. It appears that there was some misapprehension in the mind of the learned Magistrate about the nature of the application dated 30th 4
July 1998 made by the applicant for recalling the process. In paragraph no.1 of the order, he has observed that he was considering the application made by the petitioner "for discharge". In the final paragraph of the order also, he has stated that he was rejecting the "application for discharge". Consequently, the learned Sessions Judge has also used the same phraseology that he was dealing with the order of the Magistrate "refusing to discharge". An offence u/s.138 of the Negotiable Instruments Act, at the relevant time was punishable with sentence for a term of imprisonment upto six months only. It is only by an amendment made in the year 2003 that the sentence of imprisonment that can be imposed has been increased upto two years. At the relevant time, the case before the Magistrate was triable as a summary trial. Therefore, there was no occasion of framing of a charge and the applicant applying for a discharge. The application dated 30th July 1998 was in fact not an application for discharge but was an application for recall of the process. That is clear from the prayer made in the application which reads thus:
"In view of the aforesaid facts and
circumstances, this Hon'ble Court will be pleased to recall the order of issue of process
dated 19th December 1996 issued against the
present applicant in the interest of justice."
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I would therefore consider the legality of the order passed by the learned Magistrate on the basis that it was passed on an application for "recall of the process".
6. It appears that the application for recall of the process was made in view of the decision of the Supreme Court in A.K. Mathew Vs. State of Kerala, 1992(1) SCC 217, wherein it was held that even after the issue of a process in a summons case, the accused can approach the Magistrate for recalling of the process and Magistrate on being satisfied on reconsideration of the complaint, had discretionary powers to order dropping of the proceedings against the accused instead of the proceedings under Chapter XX. Relying on this judgment, several applications were filed in several cases in various Courts of the Magistrate for recall of the process. In some of the cases, process was even recalled by the Magistrates.
7. In Adalat Prasad Vs. Rooplal Jindal & ors, (2004)7 SCC 338, a larger Bench of the Supreme Court overruling its earlier decision in K.M. Mathew (supra) has observed
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"6. The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor. The High Court rested its conclusion solely on the procedural requirements of the trial of a summons case. It has been pointed out that in any private complaint triable as a summons case the Magistrate, after taking cognizance of the offence and issuing process, has no jurisdiction to drop proceedings against the accused. He is bound to proceed under Chapter XX of the Code of Criminal Procedure when the accused enters appearance. He will have to state the particulars of the offence and record the plea of the accused. When the accused pleads not guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution. Then he will have to hear the accused and take all such evidence produced in support of the defence. The High Court went on to state that the question of conviction or acquittal will arise only after recording evidence of the parties. There is no question of discharging the accused at an intermediate stage. There is no provision in the Code for dropping the proceedings against any accused".
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8. In view of the law laid down by the Supreme Court in the case of Adalat Prasad (supra) it is not open for an accused, even in a summary case, to apply for recall of the process. If at all the accused feels aggrieved by an order of issuance of the process in a summary trial, the remedy open to him is to approach the High Court under section 482 of the Code of Criminal Procedure and that of course, is without prejudice to any other remedy which the accused may have under Article 226/227 of the Constitution of India. An accused aggrieved by the order of issuance of process by the Magistrate cannot approach the same Magistrate again with the prayer for recalling of the process. The application dated 30th July 1998 made by the present petitioner - accused no.4 before the Magistrate was for recalling of the process was clearly not maintainable in view of the decision of the Supreme Court in Adalat Prasad (supra).
9. Mr.Marwadi, learned counsel appearing for the petitioner submitted that when the application was made by the petitioner, the law laid down by the Supreme Court in the case of A.K. Mathew (supra) was applicable. He submitted that the decision of Adalat Prasad (supra) cannot apply retrospectively and the application dated 30th July 1998 cannot be rejected by applying retrospectively the law laid down 8
by the Supreme Court in the case of Adalat Prasad(supra). The submission cannot be accepted. Unlike a legislation which acts prospectively, unless it is made retrospective, the judgments of the Court are retroactive. The Court does not legislate, it only interpretes the legislation which is already in existence. The interpretation made by the Court is of an existing law and applies from the date the law came in force and not from the date on which the decision is rendered. The decision of the Supreme Court in the case of Adalat Prasad (supra) would therefore apply to the application made on 30th July 1998 on which the impugned order was passed.
10. For these reasons there is no merit in the application which is hereby dismissed.
(D.G. KARNIK,J.)
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