A.N. Jindal, J. - (1.) THE petitioner, Rishi Lal has invoked provisions of Section 482 Cr. P.C. for setting aside the judgment dated 25.10.2001 passed by learned Additional Sessions Judge, Jind in Criminal Revision No.71 dated 04.11.1999 and the order dated 20.09.1999 passed by learned Chief Judicial Magistrate, Jind in criminal compliant No.43/ 1 of 07.03.1998/10.10.1991.
(2.) THE factual matrix of the case is that the petitioner had filed a criminal complaint before the Chief Judicial Magistrate, Jind which was forwarded to the police station under Section 156 (3) Cr. P.C. Consequently, a case FIR No.285 dated 23.05.1991 was registered under Sections 408, 420, 162, 468, 471, 477 A and 120B IPC. After investigation, the police submitted the cancellation report in favour of the respondents whereupon the Judicial Magistrate allowed the complainants to lead their evidence after recording preliminary evidence. The Judicial Magistrate vide order dated 21.09.1996 summoned the accused -respondents. One of the accused Nand Kishore Gupta preferred a revision petition against the aforesaid summoning order whereupon Additional Sessions Judge, Jind vide judgment dated 22.05.1998 observed that the order of summoning was interim order and dismissed the revision petition as not maintainable and also directed the respondents to place their grievance before the trial Court and apply for dropping the proceedings under Section 245 of the Cr. P.C. in view of the K.M. Mathew v. State of Kerala : (1992) 1 SCC 217, the law prevailing at that time. Then on the application filed by the respondents Chief Judicial Magistrate, while discharging the respondents, dismissed the complaint vide order dated 20.09.1999. Aggrieved by the said order revision petition was filed by the petitioner which was dismissed vide order dated 2S.10.2001 passed by Additional Sessions Judge, Jind. Now both these orders are under challenge. As a matter of fact, the present petition under Section 482 Cr. P.C. is a device to challenge the orders passed by Additional Sessions Judge, Jind because no second revision against the order of Sessions Judge was maintainable in view of the provisions of Section 397(3) Cr. P.C. The present is not a case where the provisions of the Section 482 Cr. P.C. could be invoked. While exercising the powers under Section 482 Cr. P.C. the Court neither functions as the Court of appeal nor as a revisional Court, these powers could be exercised very sparingly, carefully and with great caution and not only when such exercise is justified to prevent the abuse of process of Court and to secure the ends of justice. The invocation of powers under the aforesaid provision became the subject of hot discussion many a time and it was repeatedly observed that scope of Section 482 Cr. P.C. is very limited and should be exercised in cases where the initiation of the criminal proceedings is the abuse of the process. From the bare facts apparent on the record, prima facie no case is made out. It was also observed in case State of M.P. v. Awadh Kishore Gupta, reported In, 2004 (1) CCC 591 (S.C.) :, 2001 RCR (Cri.) 233 as under: - Section 482 Cr. P.C. envisages three circumstances to exercise the inherent powers: (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of the Court, (iii) to otherwise to secure the ends of justice.
(3.) IN the present case, material allegations levelled against the respondents relate to the year 1968 -70 regarding which the present complaint was filed in the year 1991. The allegations as levelled in the complaint have been gone into in detail by the civil Court. The judgment, Annexure P8 dated 29.07.1986 records that all the allegations which now been made a ground of complaint, are false. There is no denying a fact that earlier complaint No.600 of 01.02.1994 filed by one Ramesh Chander with regard to the same allegations has already been dismissed in default. This belated complaint preferred after 21 years is nothing but an abuse of the process. The trial Court after appreciating the facts and evidence on record rightly dismissed the complaint and discharged the accused by exercising the powers as provided by the judgment delivered by the Apex Court in K.M. Mathew v. State of Kerala & Anr. : 1992 (1) SCC 217. The argument that in view of the judgment delivered by the Apex Court in case Adalat Prasad v. Roop Lal Jindal & Ors.,, 2005 (1) CCC 570 (S.C.) :, (2004) 1 SCC 338 the Court which passed the orders of summoning had no jurisdiction to recall the same as there is no specific provision -under the Code for review and recalling the order by the same Court is not tenable. No doubt the order discharging the accused was passed on 20.09.1999 when K.M. Mathew' s judgment (supra) was in operation and the Courts were fully competent to review or recall the orders in view of the powers vested in them by the Apex court by way of judgment delivered in the said case. But thereafter the view taken in KM. Mathew's case (supra) was held to be not correct law in Adalat Prasad's case supra delivered in 2004. Since earlier the revision petition was also dismissed in 2001 before KM. Mathew's judgment was over ruled, therefore, it could be well said that the orders were passed by Judicial Magistrate when K.M. Mathew judgment was the law of the land and the Magistrate had rightly applied his mind by recalling the summoning order. Therefore, now it cannot be said that the Magistrate was not within its powers to recall the order. A similar question came up for consideration before the Delhi High Court in case B.P. Saha v. Dr. Vinit Suri & Anr., 2007 (1) RCR (Cri) 443 wherein it was observed as under: - As stated above about the applicability of Adalat Prasad's judgment, the same came much after rendering of the decision by the Magistrate. At that time K.M. Mathew 's case was the law of the land and the Magistrate rightly applied the same while recalling the summoning order, he being empowered to do so in view of Mathew's judgment. If the judgment rendered in Adalat Prasad case is given retrospective effect, the clock will be put back in all the cases as in that eventuality all the cases where orders of recall of summoning have been made in terms of K.M. Mathew's case will have to be reversed. This, to my mind are never be the spirit of the changed law.;