Punjab-Haryana High Court
Harvinder Singh vs State Of Punjab on 28 January, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Revision No. 1275 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Revision No. 1275 of 2011 (O&M)
Date of decision : 28.01.2013
Harvinder Singh .....Petitioner
VERSUS
State of Punjab ....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. P.S. Ahluwalia, Advocate
for the petitioner.
Mr. Kirat Singh Sidhu, DAG, Punjab
for the State.
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RANJIT SINGH, J.
Through the present revision petition, the petitioner has impugned the order passed by the Sessions Judge, Patiala whereby he has allowed the revision filed by the State and has set aside the order of discharge passed by the trial Magistrate in a case where the police had submitted calendera under Section 182 IPC.
Petitioner, Harvinder Singh son of Piara Singh had submitted an affidavit before Senior Superintendent of Police, Patiala on 21.06.2002 alleging that on 24.05.2000, Jaswinder Singh Mangat, Incharge CIA Staff, Patiala had come to the shop of the petitioner alongwith police officials and had threatened the petitioner by demanding sum of ` 1 lakh as bribe. The petitioner stated that he Criminal Revision No. 1275 of 2011 (O&M) 2 could arrange only ` 35,000/-, which he handed over to Jaswinder Singh Mangat, who thereafter demanded the remaining amount and for that advanced threat to the petitioner. In this manner, the police officer accepted sum of ` 50,000/- as bribe again after raising the demand.
On the basis of this complaint, Senior Superintendent of Police, Patiala directed registration of case and for investigating the same. Thereafter, FIR No. 232 dated 21.06.2002 was registered under Sections 7 and 13 (2) 88 of the Prevention of Corruption Act. The inquiry was conducted and it revealed that the allegations levelled against the petitioner were false. The petitioner then submitted cancellation report before the Sessions Judge, Patiala, who accepted the same on 21.05.2005. The police, thereafter, filed calendera under Section 182 IPC against the petitioner.
The Magistrate before whom this calendera was filed took cognizance on 04.09.2008 and ultimately discharged the petitioner on the ground that the complaint was not filed by the competent person. Against this order, State filed revision before the Court of Sessions Judge, who has now set aside the order passed by the trial Magistrate and has returned the record of the case to the trial Court with the direction to proceed in accordance with law. The petitioner, accordingly, has impugned this order by filing the present revision.
Counsel for the petitioner would challenge the impugned order passed by the Sessions Judge only on technical and legal grounds. As per the counsel, discharge order in summons case has to be construed as an acquittal and since the trial Magistrate had Criminal Revision No. 1275 of 2011 (O&M) 3 ordered discharge of the petitioner in summons case, it would deemed to be his acquittal. Against acquittal, no revision was maintainable before the Court of Sessions and the State had only option of filing leave to appeal before this Court.
This issue was not addressed on behalf of the petitioner before the Court of Sessions and, accordingly, the order passed by the Sessions Judge is silent about this aspect. When apprised of this aspect, the counsel for the petitioner would contend that the issue of jurisdiction would go to the root of the case and even consent could not have led to conferring jurisdiction on the Sessions Court to entertain this revision if the same otherwise is not maintainable. In support of his submission that no revision against the order of discharge in summons case would maintainable and such a case if is to be challenged is to by way of leave to appeal, counsel has placed before me number of precedents.
Counsel would first refer to Mander Singh and others versus Ladi 2008 (4) R.C.R. (Criminal) 388. The Court while dealing with Section 253 Cr.P.C.has observed that the petitioner when discharged in summons case, it amounts to acquittal within meaning of Section 255 Cr.PC. It is further held that the revision against such order of discharge would not be maintainable before the Sessions Judge and that appeal would be maintainable before this Court. In this case, reliance is placed on Bal Ram Suraj versus Dev Raj Dhiman 1987 (1) R.C.R. (Criminal) 616.
The legal issue arising in this case and as was under
consideration before the Court while deciding the case of Mander Criminal Revision No. 1275 of 2011 (O&M) 4 Singh (supra) has been summed up as under:-
" The only legal issue raised by learned counsel for the petitioners is that the discharge of the petitioners by the learned Magistrate amounted to acquittal and against an order of acquittal, no revision was maintainable as the only remedy available to the respondent was by way of filing leave to appeal before this Court under Section 378 Cr.P.C. He has relied upon a judgment of Hon'ble the Supreme Court in the case of Major General, A.S.Gauraya and another v. S.N.Thakur and another, 1986 Criminal Law Journal 1074 and judgments of this Court in Municipal Committee v. Shri Labhu Ram and others, 1969 Current Law Journal 619; Arjan Dass v. Market Committee, Hissar, 1980 Punjab Law Reporter 469; Bal Ram Suraj v. Dev Raj Dhiman, 1987(1) Recent Criminal Reports 616; Ashok Kumar v. State of Haryana and another, 1987(2) Recent Criminal Reports 317; State of Haryana v. Ram Singh, 1996(3) Recent Criminal Reports 134."
Reference is then made to the case of Shri Labhu Ram (supra), where it is held as under :-
" The first point raised by learned counsel for the Committee was that all the 14 cases fell within the category of summons cases in relation to which the Code of Criminal Procedure does not envisage an order of discharge in any event and that the impugned orders were liable to be set aside on that account alone. To the first part of this contention no exception can be taken as Chapter XX of the Code, which deals with the trial of summons-cases, does not talk of an order of discharge at all. On the other hand, it is clear from the provisions thereof that the proceedings against an accused person in a summons-case can end only two ways, i.e., either in Criminal Revision No. 1275 of 2011 (O&M) 5 his conviction or his acquittal. The second part of the contention, however, does not commend itself to us as it is well recognized that an order of "discharge" passed in such circumstances would amount to one of acquittal and may be treated as such. The contention, therefore, does not help the Committee in any way." (emphasis supplied)"
Finally, reference is made to Bal Ram Suraj's case (supra), where it was opined that the order of discharge has to be read as an order of acquittal deemingly to have been passed under Section 255 Cr.P.C. and on that finding no revision was competent before the Additional Sessions Judge and such order was declared to be illegal.
Similar view is expressed by this Court in Ram Nath Mahlawat versus Bihari Lal 2002 (1) R.C.R. (Criminal) 286. In this case, the Court has observed that in the order of Magistrate, the use of word 'discharge' is used instead of word 'acquittal'. It is held that the use of wrong expression in the order would be of no consequence and the said order of discharge was ordered to be read as an order of acquittal. The Court has further observed that only course under such a circumstance was for the State to file an appeal in case it still left with any grievance.
Again this Court in Vinod Kumar versus State of Punjab 1999 (4) R.C.R. (Criminal) 469 has held that when the proceedings under Section 138 of Negotiable Instruments Act was dropped by the Magistrate, the order of discharge in a complaint case would have the effect of acquittal. It is further held that only the appeal is maintainable and not the revision. For the same Criminal Revision No. 1275 of 2011 (O&M) 6 proposition, counsel has also relied upon Jagdeep Chand Bali versus State of Haryana 2001 (2) R.C.R. (Criminal) 448 and Ved Vart Shashtri versus Virender Singh 1993 (1) R.C.R. (Criminal)
163. State counsel did not raise much dispute in regard to the proposition of law raised by the counsel for the petitioner. In view of the number of precedents so cited, it is reasonable to hold that the order of discharge passed by the Magistrate will have to be deemed as an order of acquittal. Against the order of acquittal, revision has been held to be not maintainable. The only remedy available with the respondent-State was to approach this Court by way of leave to appeal. The legal issue, as raised in the present petition, would not require me to make any comment on merits, which led to discharge of the present petitioner, which now has to be taken as acquittal. That question would arise only in case the State will choose or decide to invoke the proper jurisdiction of the Court by filing a leave to appeal. Since the revision before the Court of Sessions was not maintainable, the impugned order cannot be sustained. The same is set aside.
The present revision petition is, accordingly, allowed.
January 28, 2013 ( RANJIT SINGH ) rts JUDGE