MOHIT ALIAS SONU AND ANOTHER versus STATE OF U.P. AND ANOTHER

Citation: [2013] 7 S.C.R. 86 · Decided: 01-07-2013 · Supreme Court of India · Bench: P. SATHASIVAM, M.Y. EQBAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
[2013] 7 S.C.R. 86 
MOHIT ALIAS SONU AND ANOTHER 
v. 
STATE OF U.P. AND ANOTHER 
(Criminal Appeal No. 814 of 2013) 
JULY 01, 2013. 
[P. SATHASIVAM AND M.Y. EQBAL, JJ.] 
CODE OF CRIMINAL PROCEDURE, 1973: 
C 
s. 482 read with ss. 319 and 397(2) - Order of Court of 
Session rejecting prayer of complainant u/s. 319 to summon 
applicants, set aside by High Cowt - Held: Order passed by 
trial court refusing to issue summons on the application filed 
by complainant uls. 319 decides rights and liabilities of 
D appellants in respect of their involvement in the case and, as 
such, cannot be said to be an interlocutory order so as to bar 
a revision to High Court uls. 397(2) 
s. 482 - Exercise of power by High Court - Held: Inherent 
power of court can be exercised when there is no remedy or 
E express provision provided in the Code for redressal of the 
grievance - In the instant case, complainant ought to have 
challenged the order before High Court in revision u/s. 397 
and not by invoking inherent jurisdiction of High Court u/s. 
482. 
F 
s. 482 read with s. 401 (2) - Opportunity of hearing - Held: 
A valuable right accrued to appellants by reason of the order 
passed by Court of Session refusing to issue summons - In 
the circumstances, principle of giving notice and opportunity 
of hearing as contemplated uls 401(2) should be applied 
G where such orders are challenged in High Court u/s. 482 -
Order of High Court set aside and matter remanded to it for 
decision afresh after giving opportunity of hearing to 
appellants - Notice. 
H 
86 
MOHIT ALIAS SONU v. STATE OF U.P. 
87 
In the instant appeal challenging the order of the High A 
Court in a petition u/s. 482 Cr.P.C. setting aside the order 
of the Court of Session rejecting the application of the 
complainant u/s. 319 to summon the two appellants, the 
questions for consideration before the Court were: (i) 
whether petition u/s. 482 Cr.P.C. before the High Court B 
challenging the order of the Court of Session u/s. 319 
Cr.P.C. was maintainable; and (ii) whether the High Court 
before passing the impugned order ought to have given 
noti~e and opportunity of hearing to the appellants. 
. Allowing the appeal, the Court 
HELD: 1.1 In exercise of revisional power u/ss. 397 
and 401 Cr.P.C., the High Court can call for the records 
c 
of any criminal court and examine the correctness, 
legality or propriety of any finding, sentence or order, D 
recorded or passed, and as to the regularity of any 
proceeding of such inferior court. However, sub-s (2) of 
s. 397 puts a restriction on exercise of such power in 
relation to an interlocutory order passed by the criminal 
courts in any appeal, inquiry, trial or other proceeding. E 
Further, sub-s (2) of s. 401 categorically provides that no 
order shall be made by the High Court in exercise of 
revisional jurisdiction affecting and prejudicing the right 
of the accused or other person, unless he has been given 
opportunity of hearing either personally or by pleader in F 
his own defence. [Paras 11 and 12] [98-G-H; 99-A-B, C] 
1.2 This Court is of the considered opinion that the 
order passed by the trial court refusing to issue summons 
on the application filed by the complainant u/s. 319 of 
Cr.P.C. cannot be held to be an interlocutory order within G 
the meaning of sub-s (2) of s. 397 of Cr.P.C. The 
complainant's application u/s. 319 of Cr.P.C. was rejected 
for the second time holding that there was no sufficient 
evidence against the appellants to proceed against them 
by issuing summons. The said order passed by the trial H 
. 
88 
SUPREME COURT REPORTS 
[2013] 7 S.C.R. 
A 
court decides the rights and liabilities of the appellants· 
in respect of their involvement in the case and, as such, 
cannot be said to be an interlocutory order so as to bar 
a revision to the High Court against that order as 
contemplated u/s. 397(2) of Cr.P.C. (Para 20] (110-F-H; 
B 
111-A-B] 
Amar Nath & Ors. v. State of Haryana & Ors. 1978 (1) 
SCR 222 = (1977) 4 sec 137 - relied on. 
1.3 When the complainant's application u/s. 319 of 
C Cr.P.C. was rejected for the second time, he moved the 
High Court challenging the said order u/s. 482 of Cr.P.C. 
on the ground that the Court of Session had not 
correctly appreciated the facts of the case and the 
evidence ~rought on record. So far as the inherent power 
D of the High Court as contained in s. 482 of Cr.P.C. is 
concerned, it is reiterated that when an order, not 
interlocutory in nature
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