Maintainability of revision
Querist :
Anonymous
(Querist) 17 September 2011
This query is : Resolved
Whether against discharge of accused (in a warrant trial upon private complaint) by Magistrate,,revision petition u/s 397 crpc is maintainable...plz refer some case law in support of maintainability of revision..
Devajyoti Barman
(Expert) 17 September 2011
Revision to the sessions court or the high court lies against any order passed by the Magistrate u0s 397 or 401 crpc .
To put in other words for this no citation is needed.
Raj Kumar Makkad
(Expert) 17 September 2011
Revision is maintainable in the given matter. See full text of relevant citation containing various case laws.
Allahabad High Court
Judgement Dated: 06-May-2009
Misc Petition : CRIMINAL REVISION No. 5610 of 2005
Criminal Procedure Code 1973 - Section: 397[2]
Jag Narain & Others Vs. State Of U.P. & Another
Head note: Revision against summoning order maintainable and not barred under sub section (2) of section 397 Cr.P.C.;Hon. Vijay Kumar Verma,J.: Allahabad High Court
Judgement: Hon. Vijay Kumar Verma, J. "Whether Revision against summoning order is maintainable," is the main point that falls for consideration in this revision, by means of which summoning order dated 18.08.2005 passed by Judicial Magistrate 1st, Jaunpur, in Complaint Case No. 1456 of 2005 (Dinesh Kumar vs. Jag Narain & others), under sections 323, 504, 506, 452 IPC has been challenged.
2. By the impugned order, the revisionists Jag Narain, Gayatri Devi, Sangita and Umesh have been summoned to face the trial under sections 452, 323, 504, 506 IPC. on the basis of a complaint filed by the complainant Dinesh Kumar (O.P. No.2 herein). 3.Shorn of unnecessary details, the facts leading to the filing of this revision, in brief, are that a complainant was filed on 17.06.2005 in the Court of Judicial Magistrate 1st , Jaunpur by the complainant Dinesh Kumar Upadhyay impleading revisionists as accused. Annexure (3) is the copy of that complaint.
Allegations made in the complainant, in brief, are that on 13.06.2005 at about 2.00 p.m. when the complainant was sleeping in his dalan, Jag Narain, his wife Smt. Gayatri Devi, his son Umesh Kumar and Smt. Sangita, wife of Umesh Kumar having lathi-danda came on the door of his house and began to hurl abuses and told the complainant to ask his father for compromise. When the complainant told the accused persons to have a talk for compromise with his father, the accused persons, having made preparation to cause harm entered into the dalan of the house of complainant and began to cause mar-peet. When the complainant raised noise, the witness Raghubansh, Santosh and other villagers came there and saw the incident. Thereafter, the accused persons went away giving threatening. After recording the statement of the complainant under section 200 and making inquiry under section 202 Cr.P.C., the court below passed the impugned order summoning the accused-revisionists to face the trial as stated herein-above. Hence this revision.
4.I have heard Sri S.K. Dubey, Advocate, appearing for the revisionists, learned AGA for the State and Sri Rakesh Kumar Dubey, Advocate, appearing for O.P. No. 2 at length and also perused the entire material on record carefully.
5.At the outset, a preliminary objection was raised by Sri Rakesh Kumar Dubey, Advocate, appearing for the complainant, about maintainability of the Revision against summoning order and it was vehemently contended by him that in view of the observations made by the Hon. Supreme Court in Adalat Prasad vs. Rooplal Jindal and others [2004 (50) ACC 924] and Subramanium Sethuraman vs. State of Maharashtra and another[2005(51) ACC 684], the only remedy available to the accused against summoning order is to invoke the jurisdiction of High Court in the proceeding under section 482 Cr.P.C. and hence, this Revision against the summoning order is not maintainable, being barred by section 397 (2) Cr.P.C.
6. Sri S.K. Dubey, Advocate, appearing for the revisionists refuting aforesaid contention submitted that order issuing process against the accused is not interlocutory order and hence the Revision against summoning order would not be barred by section 397 (2) Cr.P.C. 7.Having given my thoughtful consideration to the rival submissions made by the parties counsel about maintainability of Revision against summoning order, I find force in the submission of learned counsel for the revisionists that an order issuing process for summoning the accused to face the trial is not an interlocutory order and
Revision against such order is not barred by sub-section (2) of Section 397 Cr.P.C. Although the Hon. Apex Court has held in Adalat Prasad vs. Rooplal Jindal and Subramanium Sethuraman vs. State of Maharashtra (supra) that the only remedy available to the accused against summoning order is to move the High Court in the proceeding under section 482 Cr.P.C., but the matter of maintainability of Revision against summoning order was not specifically raised before the Hon. Apex Court in those cases. The matter in issue in both the aforesaid cases before the Hon. Apex Court was as to whether the magistrate is empowered to recall its summoning order.
In that context, the Hon. Apex Court had held that the magistrate is not empowered to recall the order issuing process against the accused and the only remedy available to the accused against summoning order is to invoke the jurisdiction of High Court in the proceeding under section 482 Cr.PC. Since the matter of maintainability of Revision against summoning order was not involved in those cases, hence no opinion was expressed by the Hon. Apex Court on this issue. 8.The matter of maintainability of Revision against summoning order has been considered by the Hon. Apex Court in several decisions. I would like to cite the decision of the Hon. Apex Court in Rajendra Kumar Sita Ram Pandey & others vs. Uttam and another 1999 (38) ACC 438 (SC), in which the matter of bar of Revision under the provisions of sub-section (2) of section 397 Cr.P.C. against summoning order was considered.
Following its earlier decisions in the case of Amarnath and others vs. State of Haryana and others 1977 Cri. LJ 1891 and Madhu Limaye vs. State of Maharashtra 1978 (15) ACC 184, the Honble Apex Court in Rajendra Kumar Sita Ram Pandey (supra) has held that order issuing process for summoning the accused to face the trial is not an interlocutory order and therefore the bar under sub-section (2) of section 397 would not apply to such order. Therefore, in view of the specific law laid down by the Hon. Apex Court in the case of Rajendra Kumar Sita Ram Pandey (supra), Revision against summoning order is legally maintainable. 9.The matter of maintainability of revision was considered again by the Hon. Apex Court in the case of K.K. Patel and another vs. State of Gujrat and another 2000 (41) ACC 351 (SC).
In para 11 of the judgment in K.K. Patel (supra), the Hon. Apex Court held that "it is now well-neigh settled that in deciding whether an order challenged is interlocutory or not as for section 397 (2) Cr.P.C. of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397 (2) of the Code.
In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated." Applying the principle laid down by the Hon. Apex Court in Amarnath vs. State of Haryana, Madhu Limaye vs. State of Maharashtra and K.K. Patel vs. State of Gujrat (supra), in my considered opinion, the order issuing process against the accused is not an interlocutory order and hence, Revision against such order would not be barred under sub-section (2) of section 397 Cr.P.C. 10.
The matter of challenging summoning order in Revision under section 397 or in proceedings under section 482 Cr.PC., was recently considered by the Hon. Apex Court in Dhariwal Tobaco Products Ltd. & others vs. State of Maharashtra and another 2009 (64) ACC 962. Making reference to its earlier decisions, the Hon. Apex Court has specifically held in para 8 of the report at page 963 that indisputably issuance of summons is not an interlocutory order within the meaning of section 397 of the Code.
Therefore, in view of this observation of the Hon. Apex Court, the present Revision against summoning order would not be barred by sub-section (2) of section 397 Cr.P.C. and is legally maintainable, although jurisdiction of the High Court under section 482 Cr.P.C. can also be invoked to challenge the summoning order, as held by the Hon. Apex Court in Dhariwal Tobaco Products Ltd. (supra). 11. Assailing the impugned summoning order, it was contended by the learned counsel for the revisionists that as a counter-blast to an earlier complaint filed by Smt. Parma Devi, mother of the revisionist Jag Narain, the complainant Dinesh Kumar had filed false complaint against the revisionists and hence on this ground alone impugned summoning order is liable to be set-aside. For this contention, the learned counsel for the revisionists has placed reliance on M/s Eicher Tractor Ltd. & others vs. Harihar Singh & another 2009 (1) JIC 245 (SC). It was also submitted by the learned counsel for the revisionists that litigation between the parties was going on prior to the alleged incident and due to that enmity, with a view to cause harassment to the revisionists, a false complaint was filed by the complainant in present case.
12. On the contrary, it was submitted by the learned counsel for the complainant that there is sufficient prima facie evidence to proceed against the accused persons in present case and hence the impugned summoning order cannot be quashed by this Court merely by saying that the complaint has been filed as a counter-blast to the earlier complaint. The contention of the learned counsel for the complainant was that at the stage of issuing process under section 204 Cr.P.C., the court is required to see only whether there are sufficient grounds to proceed against the accused persons and at this stage the court is not required to be satisfied that the evidence produced by the complainant is sufficient for conviction.
13. Having carefully gone through the evidence led by the complainant under section 200 and 202 Cr.P.C., I find force in the aforesaid submission of the learned counsel for the complainant. The allegations made in the complaint have been fully supported by the complainant in his statement under section 200 Cr.P.C. Two witnesses, namely, Raghubansh and Santosh were examined by the complainant under section 202 Cr.P.C. Both these witnesses also have supported the allegations of the complainant in their statements (annexure 5 & 6 ). The complainant has filed copy of his injury report along with counter affidavit dated 21.03.2006 as annexure CA-2. Therefore, having regard to the statement of the complainant recorded under section 200 Cr.P.C. and the evidence led by him in the inquiry under section 202 Cr.P.C., the learned magistrate was fully justified to summon the revisionists to face the trial for the offences mentioned in the impugned summoning order. 14. It is a settled legal position that at the stage of passing order under Section 203 or 204 Cr.P.C., only a prima facie case has to be seen and not whether the evidence as adduced is to result in conviction of the accused persons.
In the case of Nirmaljit Singh Hoon v. State of West Bengal and Anr., 1973 (10) ACC 181 (SC), while considering the scheme of Sections 200, 203 Cr.P.C., it has been held by the Hon. Apex Court that Section 203 Cr.P.C. does not say that a regular trial for adjudging the truth or otherwise of the accusations made against the accused should take place at that stage. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials, there is in his judgement no sufficient ground for proceeding, he may dismiss the complaint.
15. In the case of Chandra Deo Singh Vs. Prakash Chandra Bose, 1964(1) SCR 639, the Hon. Apex Court held that at the stage of enquiry under Section 202 Cr.P.C., the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction.
Again in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & ors., 1976 (13) ACC 225 (SC), while considering the scope of enquiry under Section 202 Cr.P.C., the Hon. Apex Court has held that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the basis of the materials placed by the complainant before the Court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. 16. In the case of S.W. Palanitkar & Ors. V. State of Bihar & Anr. 2002(44) ACC 168, the Hon. Apex Court has held that at the stage of passing order under section 203 Cr.P.C., searching sufficient ground to convict is not necessary.
17. The Hon. Apex Court has considered the matter of exercising inherent power for quashing the FIR or complaint in State of A.P. vs. Bajjoori Kanthaiah & another AIR 2009 SC 671. The following observations made in para 7 of the report at page 673 are worth mentioning:- "When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment.
Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process. Lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death." 18. The following observations made by the Hon. Apex Court in State of A.P. vs. Bajjoori Kanthaiah (supra) in para 8 are also worth mentioning:- "It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with.
In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal.
The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala faide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding." 19.
There is no dispute about the observations made by the Hon. Apex Court in M/s Eicher Tractor Ltd. vs. Harihar Singh (supra), on which strong reliance was placed by the learned counsel for the revisionists, but on the basis of the authority of this case, the impugned order cannot be set-aside in the present case holding the complaint as counter blast to the earlier complaint filed by Smt. Parma Devi, mother of the revisionist Jag Narain. It is true that Smt. Parma Devi had filed a complaint prior to the complaint of O.P. No. 2 regarding an incident which is said to have occurred on 12.10.2003, but on that basis it cannot be said that complaint in present case was filed by O.P. No. 2 against the revisionist as a counter-blast, because the incident for which complaint was filed by O.P. No. 2 is said to have occurred on 13.06.2005, whereas the incident of the complaint of Smt. Parma Devi is said to have occurred on 12.10.2003.
Therefore, the impugned summoning order cannot be quashed on the basis of the authority of M/s Eicher Tractor Ltd. vs. Harihar Singh (supra), because the facts of that case were entirely different from the facts of the present case. In the case of M/s Eicher Tractor Ltd. (supra) a cheque was issued, which was bounced, and thereafter a complaint under section 138 read with section 141 Negotiable Instruments Act was filed. Another complaint alleging theft of cheques including the cheque in question was filed subsequently by the accused of that case, which was quashed by the Hon. Apex Court holding that the proceedings were initiated as a counter-blast to earlier proceedings, which was nothing, but an abuse of the process of law. In the present case, the facts are entirely different as stated herein-above and hence the proceedings in present case can not be quashed on the basis of the decision of Hon. Apex Court in M/s Eicher Tractor case (supra), because a case is only an authority for what it actually decides and not what logically follows from it. 20.
The Hon. Apex Court has held in Deepak Bajaj vs. State of Maharashtra & another AIR 2009 SC 628 that it is well settled that a judgment of a Court is not to be read mechanically as a Euclids Theorem nor as if it was a statute. 21. On the subject of precedents Lord Halsbury, L.C. said in Quinn vs. Leathern, 1901 AC 495:- "Now before discussing the case of Allen vs. Flood (1898 ) AC 1 and what was decided therein, there are two observations of a general character which I which to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all". 22. In Ambica Quarry Works vs. State of Gujarat & others (1987) 1 SCC 213 (vide paragraph 18) the Hon. Apex Court observed:- "The ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it actually decides and not what logically follows from it." 23.
In Bhavnagar University vs. Palittana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 (vide paragraph 59, the Hon. Apex Court observed:- "It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision". 24. As held in Bharat Petrolieum Corporation Ltd. & another vs. N.R. Vairamani & another (AIR 2004 SC 4778), a decision cannot be relied on without disclosing the factual situation. In the same judgment the Hon. Apex Court also observed:- "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision of which reliance is placed. Observations of Courts are neither to be read as Euclids Theorems nor as provisions of the statute and that too taken out of the context.
These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgment. They interpret words of statutes: their words are not to be interpreted as statutes". (Emphasis supplied) 25. In London Graving Dock Co. Ltd. vs. Horton (1951 AC 737 at page 761), Lord Mac Dermot observed:- "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto.
This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge". 26. In Home Office vs. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid Said, "Lord Atkins speech................ is not to be treated as if it was a statute definition: it will require qualification in new circumstances, Megarry, J. in (1971) 1 WLR 1062, observed: "One must not, of course, construe even a reserved judgment of Russell,J. as if it were an Act of Parliament". 27. And in Herringion vs. British Railways Board (1972 (2) WLR 537) Lord Morris said: "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
The following words of Lords Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of another. To decide, therefore, on which said of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the said branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it". (Emphasis supplied) 28.
The same view was taken by the Hon. Apex Court in Sarva Shramik Sanghatana (K.V.), Mumbai vs. State of Maharashtra & Ors. AIR 2008 SC 946 and in Government of Karnataka & Ors. Vs. Gowramma & Ors. AIR 2008 SC 863. 29. Therefore, in view of the observations made in the cases mentioned herein-above, interference by this Court in the impugned summoning order on the basis of the authority of M/s Eicher Tractor Ltd. vs. Harihar Singh (supra) is not warranted as the impugned order does not suffer from any illegality and the learned court below did not commit any error of fact or law in passing the said order. 30. Consequently, the revision is dismissed. Stay order dated 14.12.2005 stands vacated.
prabhakar singh
(Expert) 17 September 2011
And if you feel lazy then read the following extracts of the post::::::::::::;;;;;;
5.At the outset, a preliminary objection was raised by Sri Rakesh Kumar Dubey, Advocate, appearing for the complainant, about maintainability of the Revision against summoning order and it was vehemently contended by him that in view of the observations made by the Hon. Supreme Court in Adalat Prasad vs. Rooplal Jindal and others [2004 (50) ACC 924] and Subramanium Sethuraman vs. State of Maharashtra and another[2005(51) ACC 684], the only remedy available to the accused against summoning order is to invoke the jurisdiction of High Court in the proceeding under section 482 Cr.P.C. and hence, this Revision against the summoning order is not maintainable, being barred by section 397 (2) Cr.P.C.
6. Sri S.K. Dubey, Advocate, appearing for the revisionists refuting aforesaid contention submitted that order issuing process against the accused is not interlocutory order and hence the Revision against summoning order would not be barred by section 397 (2) Cr.P.C. 7.Having given my thoughtful consideration to the rival submissions made by the parties counsel about maintainability of Revision against summoning order, I find force in the submission of learned counsel for the revisionists that an order issuing process for summoning the accused to face the trial is not an interlocutory order and
Revision against such order is not barred by sub-section (2) of Section 397 Cr.P.C. Although the Hon. Apex Court has held in Adalat Prasad vs. Rooplal Jindal and Subramanium Sethuraman vs. State of Maharashtra (supra) that the only remedy available to the accused against summoning order is to move the High Court in the proceeding under section 482 Cr.P.C., but the matter of maintainability of Revision against summoning order was not specifically raised before the Hon. Apex Court in those cases.
kuldeep kumar
(Expert) 18 September 2011
if u r still more lazy see this....revision does not lie to cos.only remedy is approaching hc u/s 482 to quash such order.becous such orders like discharging of accused although take away from accused some right or liabilty still as an exception made to 397(3) revision is not maintable in strict sense of term but quashing only allowed.
kuldeep kumar
(Expert) 18 September 2011
but the authority cited above jag narayan and others vs state of up allows revision..such citation are unique and can only be given by mr rkm
