Case Note & Summary
The applicant, Vidya Balakdas Khobragade, filed a complaint against her husband Balakdas Shriram Khobragade and his second wife Kavita Balakdas Khobragade under Sections 494, 199, 464, 465, 466 read with Section 34 of the Indian Penal Code, alleging that the husband entered into a second marriage during the subsistence of the first marriage. The complaint was pending as Criminal Case No. 54 of 1997 before the Judicial Magistrate First Class, Pawani. Initially, summons were issued only to accused no.1 (the husband). The applicant later moved an application (Ex. 81) for issuance of summons to accused no.2 (the second wife). The Magistrate, by order dated 27.08.2007, allowed the application and issued summons to accused no.2. Aggrieved, the respondents (accused no.1 and no.2) filed a revision before the Additional Sessions Judge, Bhandara, who set aside the Magistrate's order, relying on the ruling in Everest Advertising (P) Ltd. v. State Govt. of NCT of Delhi, 2007(6) Maharashtra Law Journal 49, holding that the Magistrate had no jurisdiction to recall summons. The applicant then filed the present application under Section 482 CrPC before the High Court. The High Court observed that the Magistrate's order was not a recall of summons but a fresh issuance of summons to accused no.2, who was already named in the complaint. The Magistrate had the power under Section 204 CrPC to issue summons at any stage of the proceedings. The Sessions Court's reliance on Everest Advertising was misplaced as that case dealt with recall of summons, not issuance. The High Court allowed the application, quashed the Sessions Court's order, and restored the Magistrate's order dated 27.08.2007.
Headnote
A) Criminal Procedure Code - Issuance of Summons - Section 204 CrPC - Magistrate's Power - The Magistrate has jurisdiction to issue summons to an accused against whom a complaint is filed, even if not initially summoned, as long as the complaint is pending. The order issuing summons is not a recall of summons but a fresh issuance under Section 204 CrPC. The Sessions Court erred in applying the principle from Everest Advertising (P) Ltd. v. State Govt. of NCT of Delhi, which deals with recall of summons, not issuance. (Paras 2-4)
Issue of Consideration
Whether the learned Additional Sessions Judge erred in setting aside the Magistrate's order issuing summons to accused no.2, by relying on the ruling in Everest Advertising (P) Ltd. v. State Govt. of NCT of Delhi, which pertains to recall of summons, not issuance of summons.
Final Decision
The High Court allowed the application, quashed the order dated 27.11.2007 passed by the Additional Sessions Judge, Bhandara, and restored the order dated 27.08.2007 passed by the Judicial Magistrate First Class, Pawani, issuing summons to accused no.2.
Law Points
- Magistrate's power to issue summons under Section 204 CrPC
- Distinction between issuing summons and recalling summons
- Applicability of Everest Advertising case
Case Details
2011 LawText (BOM) (04) 87
Criminal Application No. 930 of 2008
S. D. Malke for applicant, H. Dhumale for respondents
Vidya Balakdas Khobragade
Balakdas Shriram Khobragade and Kavita Balakdas Khobragade
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Nature of Litigation
Criminal application under Section 482 CrPC for quashing of Sessions Court order in a revision arising from a complaint of bigamy and forgery.
Remedy Sought
Quashing of order dated 27.11.2007 passed by Additional Sessions Judge, Bhandara, which set aside the Magistrate's order issuing summons to accused no.2.
Filing Reason
The applicant (complainant) alleged that her husband married a second wife during the subsistence of their marriage, and the Magistrate had issued summons to the second wife, which was wrongly set aside by the Sessions Court.
Previous Decisions
The Judicial Magistrate First Class, Pawani, by order dated 27.08.2007, issued summons to accused no.2. The Additional Sessions Judge, Bhandara, by order dated 27.11.2007, allowed the revision and set aside the Magistrate's order.
Issues
Whether the Magistrate had jurisdiction to issue summons to accused no.2 after the case had been pending for a long time?
Whether the Sessions Court correctly applied the ruling in Everest Advertising (P) Ltd. v. State Govt. of NCT of Delhi to the facts of this case?
Submissions/Arguments
The applicant argued that the Magistrate's order was for issuance of summons, not recall, and the Sessions Court erred in applying the Everest Advertising case which deals with recall of summons.
The respondents argued that the Magistrate had no jurisdiction to issue summons after the initial order of issuance of process.
Ratio Decidendi
A Magistrate has the power under Section 204 CrPC to issue summons to an accused against whom a complaint is pending, even if not initially summoned, and such an order is not a recall of summons but a fresh issuance. The Sessions Court's reliance on Everest Advertising (P) Ltd. v. State Govt. of NCT of Delhi was misplaced as that case dealt with recall of summons, not issuance.
Judgment Excerpts
It appears that case of the applicant herein is that the complaint was lodged regarding the accused no.1 Balakdas Shriram Khobragade who was husband of the applicant and who entered into second wedlock during the subsistence of first marriage with the applicant.
Learned Additional Sessions Judge was pleased to allow the revision application while setting aside the order passed by learned Judicial Magistrate First Class below application Ex. 81.
Thus there was no question of recalling the summons on the ground that it was not previously issued.
Procedural History
The applicant filed a complaint under Sections 494, 199, 464, 465, 466 read with Section 34 IPC against her husband and his second wife. The Magistrate issued summons only to the husband initially. The applicant moved an application (Ex. 81) for issuance of summons to the second wife, which was allowed on 27.08.2007. The respondents filed a revision before the Additional Sessions Judge, Bhandara, who allowed it on 27.11.2007, setting aside the Magistrate's order. The applicant then filed the present application under Section 482 CrPC before the High Court.
Acts & Sections
- Indian Penal Code, 1860: 494, 199, 464, 465, 466, 34
- Code of Criminal Procedure, 1973: 204, 482
