Recalling of summons is not permissible: Chhattisgarh high court
Judicial Magistrate First Class directing to review/ recall a summon is not permissible under the Cr.P.C. as remedy lies against the said order is before High Court under Section 482 of Cr.P.C. or Article 227 of the Constitution of India. This was held by Hon’ble Justice Narendra Kumar Vyas in the case of Smt. Rachana Ghale Vs. Chaman Ghale [CRMP No. 28 of 2016] on the 06th of August, 2021 before the Hon’ble High Court of Chhattisgarh at Bilaspur.
The brief facts of the case are, the marriage of the petitioner was solemnized with respondent No. 1 on 07.07.2007 at Bhilai as per Buddhist customs. After marriage, the petitioner was residing at her matrimonial home with respondents No. 1 to 3. Just after 3 to 4 days of marriage, respondents No. 1 to 3 started causing harassment to the petitioner for demand of dowry making false and frivolous allegations against her. The petitioner was compelled to leave her matrimonial home and driven out from her matrimonial home on 03.03.2008. The Respondent No. 1 filed divorce petition before Family Court, Durg, but the application filed by respondent No. 1 against the petitioner was dismissed on 28.07.2008. After dismissal of the said divorce petition, respondents No. 1 to 3 approached the petitioner and her parents, tendered apology for their conduct and for making false allegation and filing divorce petition. The petitioner and her family members accepted the request of respondents No. 1 to 3 and again she was living with her husband and in-laws, they again started causing physical and mental torture to the petitioner between the year 2008 to 2014 many times. In the midnight of 01-02.11.2014, respondents No. 1 to 3 again badly assaulted the petitioner as a result of which, she sustained injuries at her head, chest and mouth. When she was crying for her rescue, respondents No. 1 to 3 gagged her mouth forcefully by putting cloth in her mouth in order to silent her. The petitioner called her parents on 02.11.2014, went to police station and lodged report against respondents No. 1 to 3. Respondent No. 4 sent the petitioner for medical examination, in which, injuries were found on her chest and other parts of her body. In spite of the medical examination and receiving the injury report, respondent No. 4 has not registered any offence against respondents No. 1 to 3. Learned counsel for the petitioner would submit that the learned Judicial Magistrate First Class vide order dated 20.07.2015 registered the complaint as the report was already received and thereafter, issued notice for appearance of the respondents No. 1 to 3. He would further submit that the learned Judicial Magistrate has committed mistake by recalling its order, therefore, it is against the judgment of Hon’ble the Supreme, therefore, the same is liable to be quashed.
The counsel for the petitioner submitted that, the learned trial court has already issued summon to the complainant and process was already been initiated vide its order dated 27.07.2015 and thereafter the matter was listed on 22.08.2015. The case was fixed for consideration on the report submitted by the police and that matter was listed on 15.10.2015, on that date the trial court recalled its order and has rejected the report submitted by the police. The action taken by learned trial Court is amounting to recalling of summon, which is not permissible in view of the judgment passed by Hon’ble the Supreme Court. The counsel for the respondents however submitted that, he Magistrate has committed irregularities which do not vitiate proceedings, therefore, the order passed by the learned Judicial Magistrate First Class is legal and justified, which is not liable to be interfered by this Court while exercising power under Section 482 of the Cr.P.C. The learned judge heard the submissions of both the parties and relied on the judgement in Adalat Prasad Vs. Rooplal Jindal & others [(2004) 7 SCC 338] wherein it was held that, “It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code. ”.
Applying the rationale held in this case, the judge allowed the petition by holding, “once the complaint has been registered, summon has been issued, it cannot be recalled. The registration of complaint will not preclude right of respondents No. 1 to 3 to challenge the issuance of process by the Judicial Magistrate First Class, further proceeding initiated by the Judicial Magistrate First Class including order dated 15.10.2015, before appropriate forum without being influenced by any of the observations made by this Court.”