TaxTMI 
TaxTMI 
2004 (9) TMI 605
X X X X Extracts X X X X
X X X X Extracts X X X X
....e appellant herein was one of the Directors of the Company. The complaint in question was filed in December, 1996 and after following the procedure laid down in Chapter XV and XVI of the Code of Criminal Procedure, 1973, the trial court issued summons to the named accused in the complaint. On receipt of the complaint, the 1st accused Company challenged the same before the very same Magistrate on the ground that the Magistrate could not have taken cognizance of the offence because of the defective statutory notice. Therefore, the Company sought for its discharge. The said application came to be rejected. Thereafter, the second application for discharge was filed by the Company on the very same ground which was allowed by the Magistrate following the judgment of this Court in the case of K.M. Mathew vs. State of Kerala & Anr. (1992 (1) SCC 217) which judgment had held that it was open to the Magistrate taking cognizance and issuing process to recall the said process in the event of the summoned accused showing to the court that the issuance of process was legally impermissible. In this process, the Magistrate came to the conclusion that the statutory notice issued by the complainant ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....In the fresh application filed before the learned Magistrate, the appellant in his turn contended that the statutory notice issued was contrary to law, hence, no cognizance could have been taken by the learned Magistrate nor the process could have been issued. This application was filed within 10 days after the rejection of the above said SLP by this Court. A perusal of the averments made in the application for discharge by the appellant in the second round of litigation shows that the said application was also on the same grounds as was taken by the Company when it filed the application for discharge. Surprisingly, this application of the appellant came to be allowed by the Magistrate holding the statutory notice issued prior to filing of the complaint was not in accordance with law and in view of the judgment of this Court in the case of K.M.Mathew vs. State of Kerala & Anr. (1992 (1) SCC 217) it was open to him to recall the order of issuance of process. In that process, he allowed the application of the appellant for discharge. Being aggrieved by the said order of the learned Magistrate, the complainant filed a criminal revision petition before the High Court of Judicature a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Court actually considered the power of the criminal courts to recall its earlier orders bearing in mind the prohibition contained in Section 362 of the Code. He also submitted the fact that in Adalat Prasad's case involved a warrant case and in K.M. Mathew's case involved a summons case did not make any difference, so far as the correctness of law considered by this Court in Adalat Prasad's case. He also submitted that the appeal in hand being one triable as a summons case, the Code has not contemplated a stage of discharge and once the plea of not guilty is recorded the appellant has to face a trial as contemplated in Chapter XX of the Code. He pointed out the appellant being one of the Directors of the accused company and a co-accused, is using dilatory tactics to delay the trial in spite of the fact the core issue involved in this case has already been decided by this Court in the earlier S.L.P. filed by the company. Having considered the argument of the learned counsel for the parties, we are of the opinion that the argument of the learned counsel for the appellant that the decision of this Court in Adalat Prasad's case requires reconsideration cannot be accepted. It is tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion. As observed by us in Adalat Prasad's case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. The learned counsel for the appellant then sought leave of this Court to approach the High Court by way of 482 petition questioning the issuance of process by the Magistrate. The same was very strongly opposed by the learned counsel for the....