Punjab-Haryana High Court
Rajbirinder Singh Chahal vs Chander Prakash Malhotra on 12 November, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
210
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-36036 of 2011 (O&M)
Date of Decision: November 12, 2014
Rajbirinder Singh Chahal
...Petitioner
VERSUS
Chander Prakash Malhotra
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Petitioner-in-person.
Mr.A.K.Pathania, Advocate with
Mr.Dinesh Malhotra, in person as G.P.A.
for the respondent.
****
INDERJIT SINGH, J.
Petitioner Rajbiriinder Singh Chahal has filed this petition against Chander Prakash Malhotra respondent under Section 482 Cr.P.C. for quashing the impugned order dated 15.11.2011 passed by learned Addl. Sessions Judge, Chandigarh, whereby the application filed by the petitioner for dismissal in limine of a revision petition filed by respondent under Section 397 Cr.P.C. challenging the discharge of the petitioner, has been dismissed.
Notice of motion was issued in this case. Respondent appeared through his counsel and contested the petition. The present petition was admitted vide order dated 11.01.2012.
The petitioner argued that the order 15.11.2011, learned VINEET GULATI 2014.11.20 15:22 I attest to the accuracy and authenticity of this document Chandigarh CRM No.M-36036 of 2011 -2- Addl. Sessions Judge, Chandigarh dismissed the application filed by the petitioner for dismissal of the revision petition filed by the respondent. He argued that the respondent has no right to file a revision petition as the proceedings were initiated on the complaint filed by the Court and in that case, petitioner has been discharged and respondent filed the revision.
On the other hand, learned counsel for the respondent argued that application has been dismissed as per law because an appeal is provided under Section 341 Cr.P.C. only to challenge the order of filing the complaint or making enquiry under Section 340 Cr.P.C. When the complaint is filed and the Court has taken the cognizance of the matter by framing the charge or by discharging the party under Section 239/240 Cr.P.C., then only a revision under Section 397 Cr.P.C. will lie and not the appeal under the provisions of Section 341 Cr.P.C.
I have heard petitioner-in-person as well as learned counsel for the respondent and have gone through the record.
From the record, I find that the only dispute between the parties is firstly whether the revision under Section 397(3) Cr.P.C. is maintainable in this case challenging the order of discharge. Secondly, whether the respondent has locus standi to challenge the same.
Section 340 Cr.P.C. provides as under:-
"340. Procedure in cases mentioned in section 195.
(1) When upon an application made to it in this behalf or VINEET GULATI otherwise any court is of opinion that it is expedient in the 2014.11.20 15:22 I attest to the accuracy and authenticity of this document Chandigarh CRM No.M-36036 of 2011 -3- interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) Record a finding to that effect;
(b) Make a complaint thereof in writing;
(c) Send it to a Magistrate of the first class having jurisdiction;
(d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and
(e) Bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed, -
(a) where the court making the complaint is a High Court, by such officer of the court as the court may appoint;
1[(b) in any other case, by the presiding officer of the court or by such officer of the Court as the Court may authorise in writing in this behalf.] (4) In this section, "court" has the same meaning as in section 195."
An appeal has been provided under Section 341 Cr.P.C. which reads as under:-
"341. Appeal.
(1) Any person on whose application any court other than a High Court has refused to make a complaint under sub-
VINEET GULATI section (1) or sub-section (2) of section 340, or against 2014.11.20 15:22 I attest to the accuracy and authenticity of this document Chandigarh CRM No.M-36036 of 2011 -4- whom such a complaint has been made by such court, may appeal to the court to which such former court is subordinate within the meaning of sub-section (4) of' section 95, and the superior court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision."
In the present case, admittedly the complaint has been made by the Court and then an appeal under Section 341 (2) Cr.P.C. was filed by Chander Prakash Malhotra against Rajbirinder Singh Chahal, which was pending in the Court of learned Addl. Sessions Judge, Chandigarh as is clear from the order dated 11.02.2003 passed by this Court (Annexure P-11). Then, as per Annexure P-12, present petitioner has filed a petition against Harpreet Kaur and another.
As per Annexure P-1, Chander Prakash Malhotra through his General Power of Attorney-complainant filed application under Section 340 Cr.P.C. against R.B.S. Chahal and Sukhraj Kaur Chahal for prosecution of the accused. As per order dated 10.05.2001 (Annexure P-1), learned Chief Judicial Magistrate, Chandigarh gave finding that there appears sufficient grounds to proceed against the respondents under Section 209 IPC for dishonestly making false claim in the Court. Accordingly, accused R.B.S.Chahal was ordered to be summoned for the offence punishable under Sections 209 and 193 IPC for 28.07.2001 on process fee and copy of complaint. Chander VINEET GULATI 2014.11.20 15:22 I attest to the accuracy and authenticity of this document Chandigarh CRM No.M-36036 of 2011 -5- Prakash Malhotra filed the appeal against R.B.S.Chahal and Sukhraj Kaur challenging the order dated 10.05.2001 to the extent vide which Sukhraj Kaur was not summoned. That appeal was under Section 341 Cr.P.C. and the same was dismissed. Thereafter, R.B.S.Chahal filed an appeal under Section 341 Cr.P.C. against Chander Prakash Malhotra challenging the order, vide which the learned lower Court, on the basis of enquiry held by the Addl. Civil Judge (Senior Division), Chandigarh on 10.05.2001, filed the criminal complaint under Sections 209 and 193 IPC against the appellant (R.B.S.Chahal). This appeal under Section 341 Cr.P.C. was also dismissed vide order dated 02.12.2004 passed by learned Addl. Sessions Judge, Chandigarh (Annexure P-3). Then vide order dated 12.10.2006, learned Judicial Magistrate Ist Class, Chandigarh discharged the accused R.B.S.Chahal by holding that no such case is made out against the accused which can warrant framing of charge against him. When this order was passed, presence was marked as R.B.S. Chahal accused in person and Sh.R.S.Pathania, Advocate for the complainant Chander Prakash. Then a revision was filed by Chander Prakash Malhotra by showing Civil Judge (Jr. Divn.), Chandigarh as petitioner No.1 and himself as petitioner No.2 against R.B.S.Chahal accused under Section 397 Cr.P.C. against the order dated 12.10.2006. In this proceeding, present petitioner filed application for dismissing the revision in limine by stating that only appeal under Section 341 Cr.P.C. specifically lays down grounds for filing the same. The lower Court after hearing the parties, dismissed the application VINEET GULATI 2014.11.20 15:22 I attest to the accuracy and authenticity of this document Chandigarh CRM No.M-36036 of 2011 -6- filed by the present petitioner by holding that Section 397 Cr.P.C. does not indicate that the person on whose application the complaint under Section 340 Cr.P.C. has been filed, cannot file the revision petition challenging any order passed in the complaint. Otherwise also, the procedure has been mentioned in Section 343 Cr.P.C., which states that the Magistrate to whom a complaint is made under Section 340 or Section 341 shall, notwithstanding anything contained in Chapter XV proceed, as far as may be, to deal with the case as if it were instituted on a police report. The Court on filing of the complaint and after hearing the parties, found that no charge is made out against the present petitioner R.B.S.Chahal and therefore discharged the petitioner. As per Section 238 Cr.P.C., firstly compliance of Section 207 Cr.P.C. is to be made by supplying the copies and after that if the Court after considering the report and documents etc. and is of the view that framing of charge against the accused is groundless, shall discharge the accused, and record the reasons for doing so. So, in the present case, when the present petitioner has been discharged under Section 239 Cr.P.C. in the complaint, therefore, revision petition is maintainable and it cannot be dismissed in limine being not maintainable.
Petitioner has cited judgment passed by the Hon'ble Supreme Court in Rugmini Ammal (Dead by L.Rs) vs. Narayana Reddiar and Ors., AIR 2008 SC 895. I have gone through this cited judgment and the same having distinguished facts will not apply in the present case. Petitioner has further cited judgment passed by the VINEET GULATI 2014.11.20 15:22 I attest to the accuracy and authenticity of this document Chandigarh CRM No.M-36036 of 2011 -7- Hon'ble Supreme Court in Lalit Mohan Mondal and others vs. Benoyendra Nath Chatterjee, AIR 1982 SC 785, in which it is held that the against an order passed in appeal under Section 341 Cr.P.C., the order would not be revisable by the High Court under Section 397 (2) Cr.P.C. but there can be no doubt that the Court is entitled to examine the matter under Section 482 Cr.P.C., which expressely overrules the bar contained in Section 341 of the Code. This citation is also of no benefit to the present petitioner.
Petitioner has also cited judgment passed by the Hon'ble Supreme Court in K.Sudhakaran vs. State of Kerala, AIR 2009 SC 1898, in which it is held that initiation of suo motu action by High Court; appeal or revision against by State, would not be maintainable. This citation, also having distinguished facts will not apply in the present case. Petitioner has further cited judgment passed by the Hon'ble Supreme Court in Pritish vs. State of Maharashtra and others, AIR 2002 SC 236. I have gone through this cited judgment and the same having distinguished facts will not apply in the present case.
On the other hand, learned counsel for the respondent has cited judgment passed by this Court in Daljit Singh vs. State of Haryana, 1998(4) R.C.R. (Criminal) 237, in which it is held that challan submitted by police after investigation and Magistrate framed charge under Section 240 Cr.P.C., accused can invoke revisional jurisdiction of High Court or Sessions Court for quashing the charge.
Learned counsel for the respondent has further cited VINEET GULATI 2014.11.20 15:22 I attest to the accuracy and authenticity of this document Chandigarh CRM No.M-36036 of 2011 -8- judgment passed by the Hon'ble Supreme Court in Minakshi Bala vs. Sudhir Kumar, 1994(3) R.C.R. (Criminal) 123, in which it is held that remedy of the accused is to file revision before Sessions Court or High Court. Learned counsel for the respondent has also cited judgment passed by the Hon'ble Delhi High Court in Sudesh Kumar and others vs. State of Delhi, 2002(3) R.C.R. (Criminal) 644, in which it is held that order framing charge is not an interlocutory order. It is an order affecting material rights of the parties and revision is maintainable.
I have gone through all the above judgments cited by learned counsel for the respondent and the same fully apply to the facts of the present case.
Therefore, from the above discussion, I find that the impugned order dated 15.11.2011 passed by learned Addl. Sessions Judge, Chandigarh, in no way, can be held as illegal or perverse.
Therefore, finding no merit in the present petition, the same is dismissed.
November 12, 2014 (INDERJIT SINGH)
Vgulati JUDGE
VINEET GULATI
2014.11.20 15:22
I attest to the accuracy and
authenticity of this document
Chandigarh