J.D. Kapoor, J.
1. This case demonstrates as to how Sh. Prem Kumar the learned Additional Sessions Judge consciously tried to ignore the verdict given by Hon'ble Supreme Court in K. M. Mathews v. State of Kerela (1992) 1 S C 217 and dismissed the applications of the petitioners seeking recall of the summoning order for the offence punishable under Section 138 of the Negotiable Instrument Act vide order dated 26.4.2003 by conveniently taking the shelter under the judgment of this Court delivered in Mohd. Hashim Masood v. State reported in 2000 (1) JCC Delhi 24 as if he was bound by the view taken by the High Court and not by the Supreme Court on the proposition of law whether the accused is entitled to move the Magistrate for dropping the proceedings in a complaint case even after the process of summon has been issued against him.
2. Facts germane for the proposition of law are like this:-
M/S SBI Capital Markets Ltd. filed a complaint under Section 138 of Negotiable Instrument Act against M/S Prakash Industries Ltd & Ors its Managing director, Vice President (General) and two General Managers. They were summoned as accused vide order dated 9.7.99 by the Metropolitan Magistrate. By administrative order of the High Court, the complaints under Section 138 of Negotiable Instrument Act were transferred to the Courts of Additional Sessions Judges and this case was assigned to Sh. Prem Kumar, learned Additional Sessions Judge, New Delhi. Feeling aggrieved of the summoning order the petitioners moved an application before the learned ASJ for recalling the summoning order or for dropping the proceedings against them. The said application was dismissed by the learned ASJ on the ground that the learned trial court does not have power to recall, review, alter or vary the summoning order and, thereforee, the same cannot be considered. To be fair to the learned ASJ he referred to the K.M. Mathews case relied upon by learned counsel for the petitioners wherein following view was taken by the Supreme Court:-'It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried, it is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.'
3. After taking notice of this judgment the learned ASJ referred to Nilamani Routray Vs Bennet Coleman and Company Ltd. : (1998)8SCC594 a case that came up before the Hon'ble Supreme Court on the question of power of trial court in this regard. Learned ASJ has referred to the following observations of the Supreme court:-
'It has been contended on behalf of the appellant that K. M. Mathew Case requires reconsideration for it is settled law that a power of review has to be conferred by law specifically or by necessary implication and the Code of Criminal Procedure does not confer such power. Since we find that there is some substances in the above contention it is desirable that the matter be heard by a Bench of three Judge'.
4. inspire of the fact that in Nilmani Routary's case no law was laid down as was laid down in K. M. Mathews case as Hon'ble Supreme Court only found substance in the contention made on behalf of the appellant in Nilmani's case and deemed it desirable that the matter be heard by Bench of three Judges, learned ASJ had the audacity to ignore the dictum of Supreme Court in K. M. Mathew's case.
5. The learned ASJ did not stop here. He referred to the judgment of Delhi High Court by Single Judge in Mohd. Hasheem Massod v. State 2000 (1) JCC Delhi 24 wherein reliance was placed on Nilmani Routary 's case as if the law laid down in K. M. Mathew's case was reviewed by this judgment whereas the fact remained that the Supreme Court found substance in the contention contrary to the principle laid down in K. M. Mathew's case and, recommended for referring the matter to a larger Bench and observed that by way of judicial discipline he is bound to follow the judgment of his own High Court. It is highly preposterous to imagine that the contention raised before the Supreme Court in Nilamani's case which was referred to a larger Bench amounted to laying down a new law or reviewing the law laid down in K. M. Mathews' case. It is well settled principle and should be known to one and all that any law laid down by Hon'ble Supreme Court is, unless reversed or reviewed, binding on all the Courts in India including the High Courts. Mere reference by a Judge for reviewing the existing law to a larger Bench does not and cannot take away the binding effect of the earlier decision of the Supreme Court .
6. It is not that the learned ASJ did not know or was not conscious of this principle. He did refer to Article 141 of the Constitution of India providing that the law declared by Supreme Court shall be binding on all courts within the territory of India and learned ASJ even observed that a law laid down by Supreme Court cannot be assailed on the ground that certain aspects were not considered by or that the judgment suffers from any infirmity by not giving proper reasons or over ruling earlier decision. Thus it is not the case where learned ASJ was brewed with confusion.
7. Learned ASJ consciously ignored the verdict of the Supreme Court by introducing altogether a new, unknown to the law and wholly misconceived notion of judicial discipline that he cannot ignore or deviate from the judgment of his own High Court .If this is the understanding of judicial discipline of the learned ASJ it is very poor understanding. Learned ASJ says ' Once our own High Court takes a decision it cannot be deviated or ignored or not followed if it is applicable to the facts and circumstances of a particular case.'
8. Even if there was decision of this court in this regard, the learned ASJ was bound by the decision of Hon'ble Supreme Court which was crystal clear and in definite terms and admitted no contrary interpretation. The law laid down by Hon'ble Supreme Court in K. M. Mathew's case is crystal clear and easily understandable. It appears that in the perception of learned ASJ the order of the High Court had abrogated not only the Article 141 of the Constitution itself but overruled the judgment of the Supreme Court also. Since no law was laid down in Nilamani Routray 's case and the only law laid down is in K. M. Mathews case which has neither been reviewed nor altered, learned ASJ was required and expected to act upon the dictum returned in K. M. Mathews case only which was for all purposes binding on all the courts of the country including the High Courts.
9. But from the tenor of the order I think the learned ASJ was fully conscious of not only the law of the land but also the Constitutional provisions that the law laid down by the Supreme Court is binding on all the Courts below it including the High Courts and if any High Court has laid down a law contrary to that of the Supreme Court, law laid down by the Supreme Court alone is binding, still he sidetracked it by clutching a flimsy straw that judicial discipline requires him to follow the judgment of his own High Court. Such an approach is not only an act of judicial indiscipline but verges on contempt of Court also.
10. Let us see how the facts and circumstances of the case before the learned ASJ were different than the facts in K. M. Mathew's case. In the instant case, summons were issued by the Court after recording the pre-summoning evidence on a complaint filed under Section 138 of Negotiable Instrument Act. Accused persons moved an application for recalling the summoning order or dropping of the proceedings by pleading that no case is made out against him. Learned ASJ dismissed the application by saying that 'the application for recalling of summoning order in this case is as per se not maintainable as the summoning order cannot be recalled, reviewed, altered or varied in any manner.'
11. In K. M. Mathews case, complaint under Section 500 read with Section 34 IPC was filed against Mr. Mathew who was Chief Editor of Malyalam Manorma along with other co-accused . Learned Magistrate examined the complaint on oath and took the complaint on file and issued summons to the accused. Accused upon service entered appearance and pleaded not guilty. Before the evidence was recorded Mr. Mathew requested the Magistrate to drop the proceedings against him by contending that complainant has not alleged that the Chief Editor was responsible for selection of the news item and publication thereof nor was there any averment that the Chief Editor had perused the material or edited before its publication or that it was published with his knowledge or consent. After hearing the parties the Magistrate accepted the plea and dropped the proceedings against him.
12. Complainant took up the matter to the High Court. High Court allowed the revision and set aside the order solely on the procedural requirements of the trial of a summons case by holding that in any private complaint triable as a summons case the Magistrate after taking cognizance of the offence and issuing process has no jurisdiction to drop the proceedings against the accused. This view of the High Court did not find favor with the Supreme Court. Supreme Court held that the order issuing the process is an interim order and not a judgment and thereforee the order issuing the process can be varied and recalled and the fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.
13. It is beyond even wildest imagination and comprehension that the facts and the question of law involved in the instant case are in any way different than those of K. M. Mathews case. Only private complaints are required to be filed for the offence punishable under Section 138 of Negotiable Instrument Act. Pre-summoning evidence is recorded in both the cases. What way the procedure and proceedings are different in a complaint case under Section 138 of Negotiable Instrument Act and the case under Section 500 IPC is not understandable and difficult to accept. Thus the reasoning of the learned ASJ on this premise is wholly untenable and pretextual for dismissing the applications of the petitioners.
14. Without tarrying further on the subject, I find that the view taken by the learned ASJ was wholly erroneous, unjust, contrary to the law laid down by the Supreme Court and almost verged on contempt of the Supreme Court. In the result, the petitions are allowed, impugned order is set aside with the direction to the learned ASJ to decide the applications of the petitioners on merits as the law laid down in K. M. Mathew's case alone is holding the field till date.
15. Copy of this order be sent to all the Judicial Officers for their guidance lest any other Metropolitan Magistrate or Additional Sessions Judge ventures to tread the path the concerned learned ASJ has chosen to tread.