Order Summoning Accused Can't Be Challenged By Complainant In Revision Petition U/S 438 BNSS: Patna High Court
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The Patna High Court has held that a complainant challenging an order summoning accused is an interlocutory order and a revision petition challenging such an order is barred under Section 438(2) BNSS.
For context Section 438(2) states that the powers of revision conferred by Section 438(1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The high court said such an interlocutory order does not amount to a final order with respect to the complainant.
The court however said that such a summoning order with respect to the accused amounts to an intermediate order, which he can challenge in a revision plea and if it is set aside by the high court the whole proceeding before the lower court would get terminated.
Justice Jitendra Kumar in his order said:
"Here it would be pertinent to note that even if all the pleas/objections taken by the complainant/petitioner against the impugned order are accepted and the petition is allowed by this Court, the Proceedings before the court below would not get terminated or concluded, though, there would be addition of accused persons and offences. But if the test as laid down by Hon'ble Apex Court as discussed above is applied, the impugned order is interlocutory and not intermediate one for the complainant. Hence, the revision petition filed by him is barred under Section 397(2) Cr.PC/438(2) B.N.S.S".
"However, the impugned order would have been intermediate order for the accused and he could have preferred revision petition against the summoning order, because in case of setting aside the summoning order, the whole proceeding before the Court below would get terminated," the court added.
The court was hearing a revision petition challenging a magistrate court's order taking cognizance of offences punishable under IPC Sections 323(Punishment for voluntarily causing hurt) and 506(criminal intimidation)/34(common intention) against only one accused, i.e. respondent no. 2.
A criminal complaint was filed by the petitioner against 23 accused persons including the Private Respondents for various offences including IPC Sections 119(Public servant concealing design to commit offence which it is his duty to prevent), 147(punishment for rioting), 166(Public servant disobeying law, with intent to cause injury to any person), 207(Fraudulent claim to property to prevent its seizure as forfeited or in execution), 217(Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture), 120B(criminal conspiracy), 323(Punishment for voluntarily causing hurt), 448(Punishment for house-trespass), 504(Intentional insult with intent to provoke breach of the peace) among others. However, the Magistrate court had taken cognizance only against one accused.
The petitioner argued that prima facie case is made out not only under Sections 323 and 506 but all the other sections as alleged in the complaint and not only against respondent no. 2 but also against the rest Respondents herein. It was argued that the Magistrate court has erroneously issued summons only against one accused and only for two offences.
Taking a preliminary objection to the petition the State argued that as per law Criminal Revision does not lie against the order in the light of Section 397(2) Cr.PC/438(2) B.N.S.S., because the impugned order is interlocutory one for the complainant as even if the revision plea is allowed, the proceeding before the court below would not get terminated/concluded.
It was argued that the magistrate's order is revisable only with respect to the accused, and the complainant-petitioner's lies in invoking the inherent jurisdiction of the High Court, as provided under Section 482 Cr.PC/528 B.N.S.S. Hence, the Revision petition, is not maintainable.
The high court held that the magistrate's order was a summoning order and hence undisputedly it was not a final order.
The court referred to Section 397(2) Cr.PC/438(2) B.N.S.S. which bars criminal revision against interlocutory orders. However the high court said, "But what is interlocutory order is nowhere defined in the Cr.PC or B.N.S.S".
The high court referred to decisions of the Supreme Court which state that all orders, other than final orders, are not interlocutory ones; some of them are intermediate or quasi final orders.
It said that an intermediate order is one which is passed at intermediate stage, but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order.
"In other words, if the contention/objection of the petitioner, who moves the superior Court in revision against the an impugned order, is upheld and the criminal proceeding as a whole gets concluded/terminated, the impugned order is an intermediate and not interlocutory order, despite the fact that it was passed during an interlocutory stage. It also implies that the order may be intermediate for accused but interlocutory for the complainant/informant/State," the court said.
In the present case the court said that revision plea by the complainant/petitioner was misconceived and not maintainable in view of Section 397(2) Cr.PC/438(2) B.N.S.S.
The high court said that the complainant's remedy lies in invoking inherent jurisdiction of the High Court under Section 482 Cr.PC/528 B.N.S.S.. It said that the petitioner also has the remedy at a later stage of the trial after recording of evidence of the prosecution.
"The complainant may summoning of additional accused under Section 319 Cr.PC/ Section 358 B.N.S.S., or addition/alteration of charge under Section 216 Cr.PC/ Section 239 B.N.S.S., if so advised," the court added.
The plea was dismissed as not maintainable.
Case title: Laxmi Devi v/s The State of Bihar and others