Allahabad High Court
Rajesh Yadav vs State Of U.P. And Another on 12 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:65014 Court No. - 92 Case :- APPLICATION U/S 482 No. - 5114 of 2024 Applicant :- Rajesh Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Suneel Kumar Mishra Counsel for Opposite Party :- Alok Krishan Tripathi,G.A. Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard learned counsel for the applicant, Sri Alok Krishna Tripathi, learned counsel for the opposite party no.2, Sri Anish Kumar Upadhyay, learned AGA for the State and perused the record.
2. Present application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 20.01.2024 passed by Additional District and Sessions Judge/ F.T.C.-I, Bhadohi in Criminal Revision No.147 of 2023 arising out of Complaint Case No.839 of 2016, under Section 138 N.I. Act, Police Station- Bhadohi, District Bhadohi.
3. Learned counsel for the applicant contends that the impugned order passed by the revisional Court is erroneous because against the dismissal of a complaint under Section 255, Cr.P.C. appeal lies under Section 378(4) Cr.P.C., not the revision. In support of his contention, he has relied upon the judgment of the Division Bench of this Court in the case ofAnil Kumar Agrawal vs State of U.P. and another (Application U/S 482 No.3171 of 2016)in which the division bench of this Court observed that against the dismissal of the complaint, an appeal lies under Section 378(4) Cr.P.C.
4. Counsel for the applicant has also relied upon the judgement of Madras High Court (Madurai Bench) inS. Ganapathy vs N. Senthilvel (in Criminal Appeal (M.D.) No.347 of 2010. In para 31 of the aforesaid judgement, the Court observed that the victim of the crime has a statutory right of appeal against the dismissal of a complaint under Section 138 of N.I. Act. He has also relied upon the judgement of this Court in the case ofAbhishek Mishra @ Pintu vs State of U.P. and another (Application U/S 482 No.3099 of 2024). In that case, the Court vide order dated 13.03.2024 referred the matter to the Larger Bench regarding the maintainability of appeal or revision against the dismissal of a complaint under Section 256(1) Cr.P.C.
5. Per contra, learned AGA, as well as counsel for the opposite party no.2, submitted the order passed by the revisional Court is correct because the order of learned Chief Judicial Magistrate, which was under challenged in revision, was erroneous as no evidence at all was produced by complainant even then he acquitted the accused-applicant under Section 255 Cr.P.C. though at the most he could have passed an order under Section 256 Cr.P.C. in the absence of the complainant. Counsel further submits for the opposite party No. 2 that the complainant cannot be remedied less.
6. After hearing learned counsel for the parties and perusal of the record, this fact is undisputed that the Chief Judicial Magistrate passed the order dated 06.01.2022, under Section 255 Cr.P.C., acquitting the applicant/accused. The Division Bench of this Court in Anil Kumar Agrawal (supra) has observed that against the acquittal of the accused in the complaint case under Section 138 N.I. Act appeal lies under proviso 372 read with sub-Sections 4 and 5 of Section 378 Cr.P.C. Paragraph 41 of the aforesaid judgement is being quoted as under;
"41. Thus, in view of the aforesaid discussion, our answers to the questions referred to us are as follows:-
(a). We are of the firm opinion that the appeal by a 'victim' who is a complainant also against the order of acquittal in a criminal complaint case under 138 of Negotiable Instrument Act would lie to the High Court under proviso to Section 372 read with Sub-section (4) & (5) of Section 378 CrPC.
(b). Against the same judgment and order of acquittal in a complaint case, in a situation where victim and complainant both are different persons, appeal by a victim would lie under the proviso to 372 CrPC read with Section 378 (4) (5) CrPC only before the High Court."
7. This issue was again considered by the Full Bench of Madras High Court in the case ofS. Ganapathy (supra). The Hon'ble Full Bench of Madras High Court was also of the view that against the order of acquittal in the complaint case, an appeal lies under Section 327 Cr.P.C.
8. But in the present case, against the order dated 06.01.2022 passed by the C.J.M., the revision was filed by the opposite party no.2, but the applicant has not raised the issue of jurisdiction, and the revisional court decided the revision vide order dated 20.10.2024 in favour of opposite party no.2 by setting aside the order dated 06.01.2022. Even otherwise, the appeal against the order dated 06.01.2022 would have been heard by the same Court (Session Judge) that had heard the revision. Though as per Section 399(2) read with section 401(4) Cr.P.C., there is a bar for entertaining revision if an appeal lies but is not preferred.
9. The Delhi High Court, in the case of Asian Fans & Appliances Co. Ltd. Versus Usaka Industries Components Pvt. Ltd. 2009 SCC Online Del 558, observed that the object of revisional authority is to confirm upon superior criminal courts supervisory jurisdiction to correct a miscarriage of justice arising from misconception of law or irregularities of procedure and similar infirmities. Relevant extract of para 12 of Asian Fans' & Appliances Co.Ltd. case (Supra) is being quoted as under;
12. The object of the revisional jurisdiction is to confer upon superior' Criminal Courts a supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law or irregularity of procedure and similar infirmities. Therefore, in order to correct the error of law, since the decision of the Magistrate is clearly in violation of the law laid down in the code and the law declared by the Hon'ble Apex Court in Subramanium Sethuraman (supra), therefore, clearly the remedy against such an order is filing of a revision petition and not an appeal. In this regard, this court in Asia Metal Corporation (HUF) (supra) observed as under:
"5. I have considered the submissions made by the learned Counsel for the parties and find that in view of the Supreme Court's decision in the case of Subramanium Sethuraman (supra), there is no question of discharge under Chapter XX insofar as a summons-case which has been instituted upon a complaint is concerned. Chapter XX pertains to trial of summons-cases by Magistrates. Section 251 pertains to the substance of accusation to be stated. It provides that when in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defense to make, but it shall not be necessary to frame a formal charge. Prior to the stage of Section 251 of the Code, the procedure that is prescribed is governed by Chapter XV of the Code starting from Section 200. Section 200 of the Code pertains to the examination of the complainant. Section 203 deals with the dismissal of complaint. In particular, it provides that if, after considering the submissions on Oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. In a sense Section 203 marks the culmination of the pre-summoning stage. It either results in the dismissal of the complaint or it results in the advancement to the next stage, that is, Chapter XVI. Section 204 is the first section in Chapter XVI. Under Section 204 it is made clear that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding in a summons-case, he shall issue summons for the attendance of the accused. The issuance of summons for attendance marks the end of the pre-summoning stage and the case then has to be dealt with under Chapter XX which deals with trial of summons-cases by Magistrates. At this stage, the Magistrate is not required to further apply his mind as to whether the case has to be proceeded with or not against the accused/summoned persons. All that is required under Section 251 of the Code is that the substance of the accusation is to be stated and the accused is to be asked whether he pleads guilty or has any defense to make and it is also not necessary to frame a formal charge. None of the provisions of Chapter XX speak of any possibility of discharge except under Section 258 which does not apply to the present case. The Supreme Court's decision in the case of Subramanium Sethuraman (supra) is quite clear on this aspect and has categorically held that the case involving a summons-case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. What has happened in the present case is that after summons were issued, at the stage of proceedings under Section 251 of the Code, the learned Metropolitan Magistrate has discharged all the accused except Yogesh Gupta. There is no provision of discharge at the stage of Section 251 of the Code and therefore, this is clearly contrary to the provisions of the Code as also to the law as declared by the Supreme Court in the case of Subramanium Sethuraman (supra). This is an error which needs to be corrected and therefore, these revision petitions would be maintainable. The question of the discharge amounting to an acquittal is of no consequence because discharge itself is not permissible under the law, therefore, the consideration of the interpretation of Section 258 as was done in the case of RPG Transmission (I) Ltd. (supra) is not at all necessary.
6. In view of the foregoing discussions, I hold that these revisions petitions are maintainable and that the learned Metropolitan Magistrate has committed a serious error which requires to be corrected. In this view of the matter, these revision petitions are allowed and the impugned order insofar it 'discharges' all the accused other than Yoges Gupta, is set aside.
7. The accused are directed to appear before the concerned Metropolitan Magistrate on 27.5.2006, the date already fixed in that matter for the remaining accused. I direct that the trial be conducted expeditiously keeping in view the newly amended Section 143 of the Negotiable Instruments Act, 1881. The same be concluded preferably within six months. These revision petitions stand disposed of."
10. In the present case, though, the complainant adduced no evidence, and the learned Magistrate acquitted the applicant under section 255 Cr. P.C., where an acquittal order is passed on considering the complainant's evidence. Section 255 Cr.P.C. is being quoted as follows;
"255. Acquittal or conviction.?(1) If the Magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal.
(2) Where the Magistrate does not proceed in accordance with the provisions of Section 325 or Section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
Corresponding Law: S. 245 of Act V of 1898.
(3) A Magistrate may, under Section 252 or Section 255, convict the accused of any offence triable under this Chapter, which form the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby."
11. Therefore, the order of the learned Magistrate, which was the subject matter of revision, was ex-facie erroneous. Hence, it can be corrected in revisional jurisdiction. Even the bar under section 399(2) Cr.P.C. on the Sessions Judge is not absolute as in the case of section 401(1) Cr.P.C. because Section 401(4) Cr.P.C. was made applicable "so far as may be" in the proceeding of Section 399 Cr. P.C.
12. Even otherwise, the present applicant did not raise any objection before the revisional Court regarding maintainability. Afterwards, the case was decided on merit, and the trial court was directed to decide it in accordance with the law. In such circumstances, the present applicant cannot be permitted to object to the jurisdiction of the revisional Court.
13. In view of the above, this Court does not find any illegality in the impugned order dated 20.01.2024 passed by the Additional Sessions Judge, Court No.2. Bhadohi. Therefore, the application under Section 482 Cr. P.C. is, accordingly, dismissed.
14. However, considering that Complaint Case No.839 of 2016 has been pending since 2016, the Court below is directed to conclude the proceeding of the aforesaid case expeditiously, preferably within a period of six months from the date of production of a copy of this order, strictly in accordance with law.
Order Date :- 12.4.2024 A.Kr.