- (1.) This appeal is directed against the judgment of the High Court in decided on July 17, 2003.
(2.) The appellant at the relevant time was the Additional Sessions Judge, New Delhi, before whom Complaint Case No. 527 of 2003 under Section 138 of the Negotiable Instruments Act, 1881 was pending. After the pre- summoning evidence had been recorded, the accused were summoned by order dated 9.7.1979 by the learned Metropolitan Magistrate. Thereafter the file came to be assigned to the Court of the appellant on 28.1.2003. Accused Nos. 1, 3 and 5, on 21.4.2003 filed an application for recalling the summoning orders. Reply to the aforesaid application was filed by the complainant. After hearing the learned counsel for the parties, the appellant dismissed the application. Whilst dismissing the application, the appellant notices the judgment of this Court in K.M. Mathews v. State of Kerala 1992 (1) SCC 217 wherein it had been held that issuance of the process to the accused person would not be a bar to drop the proceedings if the complaint on the face of it does not disclose any offence against the accused. The appellant reproduced the relevant observations of this Court which are as under:- "It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."
(3.) The appellant thereafter notices that the aforesaid judgment has been referred to a larger Bench in the case of Nilamani Routray v. Benett Coleman and Company Limited 1998 (8) SCC 594. The appellant thereafter further makes a note that the High Court in the case of Mohd. Hashim Masood v. State reported in 2000 (1) JCC Delhi 24 has held that once the summoning order has been issued, the Trial Court would have no power to review its earlier order. The appellant also notices that the law declared by this Court under Article 141 is binding on all the Courts below. Thereafter it is observed that similarly the Lower Courts are also bound by the decisions rendered by the High court. Since the High Court, according to the appellant, had in the case of Nilamani Routray case (supra) held that the Trial Court had no power of review, the application made by the accused persons had to be dismissed. Consequently, without going into the merits of the case, the appellant dismissed the application of the accused for withdrawal of the summoning order. This order was challenged by the accused person before the High Court in a petition filed under Section 482 of the Criminal Procedure Code. The High Court has allowed the aforesaid petition filed by the accused-respondents and held that the view taken by the appellant was wholly erroneous, unjust and contrary to the law laid down by the Supreme Court in K.M. Mathews Case (1992) 1 SCC 217 : 1992 SCC (Cri) 88 supra.;