- (1.) A learned Single Judge has referred the following questions of law by order dated 23 August, 2006 for resolution by the Full Bench: "(a) As to whether the procedure prescribed by the code of criminal procedure for conducting the trial can be altered under Section 482 of the Cr. P. C., for achieving the ends of justice. (b) can the accused be allowed to give his defence and can be heard and give evidence to prove his innocence at or soon after the summoning stage. (c) can a person who has not been summoned to face trial and no allegations in the complaint have been made against him in the complaint can approach the court for adjudication on his plea that he has committed no offence and cannot be proceeded with. (d) Whether the order dated 28.11.2006 was beyond the scope of Section 482 of the Cr.P.C."
(2.) Mr. I.B. Singh, learned Senior Advocate appearing as Amicus Curiae, at the outset, invited our attention to the reference order and submitted that in the facts of the present case, such a reference was not necessary. He submitted that the order dated 28.11.2003, which has been referred to in the reference order, does not issue any direction as such nor the order dated 13.7.2006 has been passed on the basis thereof. He further submitted that the order dated 28.11.2003 would not come in the way in proceeding with the trial, as per the procedure laid down under the provisions of the Code of Criminal Procedure, 1973 (in short 'Code'). It was also pointed out that the trial in the present case got over long back and the accused persons have been discharged. Revision against the discharge order has also been dismissed, against which a writ petition is now pending.
(3.) We have carefully perused the order dated 23.8.2006. It would be relevant to reproduce the relevant portion of the order, which reads thus: "The Chief Judicial Magistrate, Lucknow after taking cognizance of offence punishable under Section 138 of the Negotiable Instruments Act had summoned the accused opposite parties vide order dated 02.06.03, for facing trial in the above said offence. This above said summoning order dated 02.06.03 was challenged before this Court, in petition under Section 482 of the Cr.P.C. and this court, in this petition under Section 482 of the Cr.P.C., vide orders dated 28.11.2003, copy of which has been filed as annexure No.4, disposed of this petition and gave certain directions, to the trial court, option was given to the managers of the institute, newly elected and old manager to file their objections. The old manager, who had signed the cheque, was also given an opportunity for praying for deletion; both the accused were given the opportunity for being heard, for deletion of their names in the column of accused, as no offence is made out. The trial court in pursuance of these orders, on the application of old manager who was one of the signatory of the disputed cheque and the new manager, dismissed the complaint and discharged the accused. An appeal against this order dated 11.08.2005 was filed and learned Additional Sessions Judge vide the impugned order treated this appeal as revision and dismissed the appeal/revision, forgetting the fact that scope of both these proceedings are entirely different and the court was not exercising the powers of the appellate court, while hearing this appeal/revision, made reappraisal of whole evidence weighed the evidence and on basis of it dismissed the appeal treating it to be a revision. Although the order of this Court dated 28.11.2003 is or was not under challenge, the question which has arisen in this petition relates to that order because on basis of this order the complaint has been dismissed, and will come in the way for proper disposal of the complaint. No legislative enactment dealing with procedure can provide for all contingencies that may possibly arise, so nonavailability of an effective remedy always empowers the court to take appropriate action so as to protect an innocent citizens and secure the ends of justice, in deserving cases, the facts of this case make it clear that the order of the court dated 28.11.2003 is coming in the way in proceeding with the trial, as per procedure laid down by the code, the order of this court dated 28.11.2003 has been and is being and may be interpreted in a manner which could not have been, the intention of the Court, accused could not have been heard at that stage when opportunity to them was given by this Court and scrutiny of allegation could not have been made at the stage when this opportunity was given, and also at the stage when the petition under Section 482 of the Cr.P.C. was filed, the defence of accused could not have been considered, has to be kept in mind. The normal rule is that no scrutiny of allegations which have been made, in the complaint can be made, till the accused had put in his appearance, the accused can only be heard at appropriate stage and in the manner provided in the Code of Criminal Procedure. The procedure prescribed in the code could not have been altered, while passing orders under Section 482 of the Cr.P.C." (emphasis supplied);