Magistrate Order Summoning Accused Despite Cancellation Report Can Be Challenged In Revisional Jurisdiction: Delhi High Court

The Delhi High Court has ruled that an order passed by a Magistrate issuing process or summoning an accused, despite a cancellation report filed by the police, can be challenged in revisional jurisdiction before the sessions court or the High Court.

“Thus, it can be concluded that an order of a Magistrate issuing process or summoning an accused under Sections 200 to 204 Cr.P.C. does not fall within the bar of Section 397(2) Cr.P.C. Such an order is intermediate or quasi-final in nature, and therefore amenable to the revisional jurisdiction of the learned Sessions Court or the High Court,” Justice Swarana Kanta Sharma said.

The Court was dealing with a plea filed by a complainant against the trial court order setting aside the magistrate's order taking cognizance of the offences under Sections 354, 354(D); 323, 342, 509 and 365 IPC against the accused. The magistrate had summoned the accused, despite a cancellation report filed by the police.

The question before the High Court was whether the order of the Magistrate summoning the accused despite a cancellation report was an interlocutory order so as to be outside the scope of revisional jurisdiction of the Sessions Court under Section 397 of Cr.P.C?

Justice Sharma said that the order of the Magistrate taking cognizance and issuing process was passed despite the police having filed a cancellation report on the ground that no material supporting the complainant‟s allegations could be unearthed against the accused.

The Court noted that the complainant had neither raised objections to the cancellation report initially nor filed a protest petition in response, though she had later addressed oral arguments against the cancellation report.

It concluded that the act of taking cognizance on the basis of the material annexed with the chargesheet and proceeding to summon the accused assumes greater significance, as it sets into motion criminal proceedings against the accused, though the police had found no material to chargesheet the accused.

Observing that such an order substantially and directly affects the rights of the accused by subjecting him to criminal proceedings, the Court said:

“Accordingly, this Court is of the view that in circumstances such as the present, where the learned Magistrate has taken cognizance and issued process despite the filing of a cancellation report by the police, the order cannot by any means be termed interlocutory.”

“Moreover, in light of the test laid down by the Supreme Court, the summoning order passed by the learned Magistrate is an intermediate order, which if reversed, has the effect of terminating the entire criminal proceedings. Such an order, therefore, falls within the ambit of scrutiny by a revisional court and thus, the respondent no. 2 was not barred from filing a revision petition under Section 397 of Cr.P.C. before the learned Sessions Court,” it added.

Justice Sharma rejected the contentions raised on behalf of the complainant qua the maintainability of revision petition filed by the accused before the Sessions Court and listed the matter for arguments on merits.

Title: X v. STATE OF NCT & ANR

Click here to read order