Reeta Vs. Parveen Sharma - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - after recording the preliminary evidence, the trial magistrate on being satisfied that there are sufficient grounds to proceed against the accused persons, summoned all the accused under the aforesaid sections. quashing of the complaint as well as the order of summoning the petitioners has been sought on the ground that petitioner no. the magistrate is always empowered to drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the petitioners could be tried.v.k. jhanji, j. 1. the present petition under section 482 of the code of criminal procedure has been filed for quashing the complaint and the order summoning the accused mentioned in the complaint including the petitioners. complaint was filed by smt. parveen sharma under sections 406, 498a read with section 120b, i.p.c. after recording the preliminary evidence, the trial magistrate on being satisfied that there are sufficient grounds to proceed against the accused persons, summoned all the accused under the aforesaid sections. quashing of the complaint as well as the order of summoning the petitioners has been sought on the ground that petitioner no. 1 was hardly 12 years of age at the time of marriage and was not more than 151/2 years at the time of filing of the complaint and also on the ground that in the complaint, there are only vague allegations against the petitioners.2. after hearing the learned counsel for the petitioners, i am of the opinion that no case is made out for quashing of the complaint and the order of summoning the petitioners at this stage. the petitioners, if they are so aggrieved of the order of summoning, can always file an application before the trial magistrate that process against them ought hot to have been issued. the magistrate is always empowered to drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the petitioners could be tried. in k.m. mathew v. state of kerala and anr., 1992 (1) clr 695, i (1992) 316 (sc) supreme court has held that:'order of summoning is an interim order and not a judgment. it can be varied or recalled by the magistrate and the proceedings against the accused can be dropped if the complaint on the face of it does not disclose any offence against the accused.'3. accordingly, the petitioners shall be at liberty to make an appropriate application before the trial magistrate and in case they can satisfy the trial magistrate that no offence is made out against them, the magistrate may pass appropriate order in this regard.4. personal appearance of the petitioners shall not be insisted upon and they shall be allowed to appear through their counsel provided they give an undertaking in writing that they will appear as and when required by the court. petition stands disposed of accordingly.