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Sec.397(1) cr.p.c.

(Querist) 28 February 2017 This query is : Resolved 
A FIR has been registered against few accused U/S 420, 468 & 471 IPC in September, 2012. The police closed it as ‘Mistake of fact’ without sending RCS notice to the de-facto complainant and filed ‘Action Dropped Report’ in May, 2013 in the Judicial Magistrate Court. The court did not insist the reason for not sending RCS notice by the police. The court failed to send notice to the de-facto complainant to be heard at the time of consideration, the date of hearing was not known to the de-facto complainant and closed the case in his absence as ‘petitioner called absent’ on 7th August, 2013. After knowing this the complainant the filed his protest petition 27.08.2013 which was not considered in accordance with the procedures laid down in Sec. 190 (1) of Cr.P.C. and still pending before the Judicial Magistrate Court.
Once a Magistrate in a private complaint orders for investigation under Sec. 156 (3) and receives a report from the police under sec.173 (2) Cr.P.C., three courses are open to him viz., (i) he may drop further action when he decides that there is no sufficient ground, (ii) he may take cognizance of the offence under Section 190 (1) (b) and issue process, and (iii) he may take cognizance of the offence under Sec. 190 (1) (a) of Cr.P.C. on the basis of the original complaint and proceed to examine upon oath the complainant and the witness U/S 200 Cr.P.C. (Followed: H.S.BAINS V. STATE (1981 SCC (CRI) 93)).
The petitioner has filed a petition under Section 156 (3) on before the Judicial Magistrate on 05.11.2016 requesting to take cognizance under Section 190 (1) (b) and direct the issue of process to the accused by stating the details of misconception of law, irregularity of procedure and violation of natural justice with relevant Rulings and necessary documents constituting the offence. If there are materials, undoubtedly, the learned Magistrate has power to do so. It is clear that the learned Magistrate has not applied his judicial mind in taking the case on file. The protest petition is pending for more than 4 years.
Miscarriage of justice arising from misconception of law, irregularity of procedure and non-compliance with mandatory requirements have occurred and the minimum needs of natural justice and the obligations under Article 14 and 19 of the Constitution of India have been ignored. Whether the petitioner can file a criminal revision case in the Sessions Court U/S 397 (1) of Cr.P.C. and is it maintainable?

Guest (Expert) 09 April 2017
A Revision will lie to the Sessions Court only against the order of the Magistrate on the Protest Petition filed by you. In the absence of any order a Revision cannot lie.

Alternatively, you can file a Writ Petition before the High Court to expedite the hearing of the Protest Petition.


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