Rishi Parkash vs Hari Ram on 28 August, 2012

[Cites 19, Cited by 0]

Punjab-Haryana High Court

Rishi Parkash vs Hari Ram on 28 August, 2012

The instant petition under Section 482 of the Code of Criminal Procedure ('Cr.P.C' for short) has been filed by the petitioner, invoking the inherent jurisdiction of this Court, against the order dated 09.12.2011 passed by the learned Additional Sessions Judge, Bhiwani, thereby dismissing the revision of the petitioner, upholding the order dated 23.08.2010 passed by learned Sub-Divisional Judicial Magistrate, Charkhi Dadri, whereby the respondent was discharged in the complaint filed by the petitioner.

Shorn of detailed background of the case, it would suffice to refer to the relevant facts necessary for disposing of the issue involved herein. Petitioner-Rishi Parkash instituted a complaint under Sections 192, 420, 467, 468, 471 of the Indian Penal Code ('IPC' for short) before the Court of Sub-Divisional Judicial Magistrate, Charkhi Dadri, against respondent-accused Hari Ram. The petitioner alleged that he filed a civil suit for possession against the accused-respondent with regard to his residential property situated in Mohalla Saini Pura, Ward No.6, Charkhi Criminal Misc.M-No.7332 of 2012(O & M) 2 Dadri, which was owned by him. The residential property was in illegal possession of the accused for the last many years. It was further alleged that respondent-accused had no right to obtain a water connection either from the Municipal Committee, Charkhi Dadri or from the Public Health Department without the consent of the complainant-the true owner. The accused, while applying to the Municipal Committee, falsely claimed himself as owner of the suit property situated in Ward No.6, Charkhi Dadri. The accused received ` 900/- as subsidy for the conversion of dry latrine into water latrine(flush latrine) which was non-refundable amount. Thus, he caused wrongful loss to the Municipal Committee, Charkhi Dadri. It was also alleged that the accused filed an affidavit in the office of Sub-Divisional Officer, Public Health Department, Sub-Division, Charkhi Dadri and also an agreement, wherein he claimed himself to be the owner in possession of the property, for the purpose of getting water connection. With these allegations, complainant stated that accused-respondent committed the offence of giving false evidence, cheating, fraud and forgery, punishable under Sections 192, 420, 467, 468, 471 IPC.

The learned Judicial Magistrate, vide his order dated 25.03.2004, under Section 156(3) Cr.P.C. directed the Station House Officer, Police Station, Charkhi Dadri to register the case and after investigation thereof, to submit his report. In compliance of the order dated 25.03.2004, SHO Police Station City Charkhi Dadri, registered the FIR but during the course of investigation, it was found that no case was made against the accused. Consequently, cancellation report was submitted in the Court. Notice was issued to the complainant-petitioner, who feeling dissatisfied with the police report, opted to lead preliminary evidence, with a view to substantiate his allegations levelled in the complaint.

No prima facie case was made out for summoning the Criminal Misc.M-No.7332 of 2012(O & M) 3 accused for the offence under Section 192, 467, 468 and 471 IPC. However, the accused Hari Ram-respondent was ordered to be summoned for the alleged offence under Section 420 IPC only vide order dated 15.07.2004 (Annexure P-1). Petitioner-complainant, in order to establish his case examined as many as 12 PWs besides, tendering documents in evidence in the form of Ex.P-1 to P-19 as his pre-charge evidence.

After a careful scrutiny of the pre-charge evidence and hearing the arguments, learned Sub-Divisional Judicial Magistrate, Charki Dadri, came to the conclusion that there was no sufficient evidence for framing of the charge against the accused. Consequently, the accused- respondent was ordered to be discharged vide impugned order dated 23.08.2010 (Annexure P-2).

Dissatisfied with the above said impugned order of discharge, petitioner filed his revision petition under Section 399 Cr.P.C. before the learned Sessions Judge, Bhiwani and the same came to be dismissed vide impugned order dated 09.02.2011(Annexure P-4). Learned Additional Sessions Judge, Bhiwani, upheld the above said order dated 23.08.2010, while dismissing the revision petition of the petitioner, observing therein that no allegation of cheating was levelled by the petitioner against the respondent and it was also admitted by the petitioner that the respondent did not cause any financial loss to him.

Learned counsel for the petitioner vehemently contended that in view of the overwhelming pre-charge evidence brought on record by the petitioner, there was sufficient evidence available on the record of the case for framing charge against the respondent-accused but the learned trial Court failed to appreciate the evidence in the right perspective. Learned counsel further submitted that even the learned revisional court fell into serious error of law while not considering and appreciating the Criminal Misc.M-No.7332 of 2012(O & M) 4 sufficient evidence brought on record by the petitioner. Learned counsel for the petitioner next contended that numerous documents as well as oral evidence brought on record by the petitioner was neither properly discussed nor discarded but illegally ignored by the learned Courts below because of which serious prejudice has been caused to the petitioner.

To overcome the statutory bar provided under Section 397 (3) Cr.P.C., learned counsel for the petitioner relied upon the judgement of the Hon'ble Supreme Court in Shakuntala Devi & Ors. vs. Chamru Mahto and anr. (2009) 3 SCC 310, to contend that since the serious prejudice has been caused to the petitioner, the statutory bar would not come in his way because the bar under Section 397(3) Cr.P.C. is not absolute in every given situation. Thus, the learned counsel for the petitioner concluded by submitting that in the peculiar facts and circumstances of the case, the impugned orders passed by the learned courts below were liable to be set aside and the present petition deserves to be accepted.

I have heard learned counsel for the petitioner and with her able assistance have gone through the record of the case. Having given my thoughtful consideration to the contentions raised and in view of the peculiar fact situation of the present case, this Court is of considered opinion that the present one is not a fit case for exercising the inherent powers of this Court under Section 482 Cr.P.C. for more than one reasons.

The twin questions of law which fall for consideration of this Court are;

(i) whether the impugned orders suffer from patent illegality and were liable to be set aside so as to avoid the abuse of process of law and to secure the ends of justice within the scope of Section 482 Cr.P.C?

Criminal Misc.M-No.7332 of 2012(O & M) 5

(ii)whether the statutory bar provided under Section 397(3) Cr.P.C., though may not be absolute, can the same be allowed to be circumvented by resorting to the inherent powers of this Court under Section 482 Cr.P.C., despite no serious prejudice having been shown to the petitioner? Taking the first question first, this Court has critically analysed the impugned orders passed by the learned courts below. Having done that, this Court has come to the definite conclusion that there is no illegality in either of the impugned orders much less patent illegality thereof. I say so because it is the settled proposition of law that if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion as to the guilt of the accused, the trial Court will be empowered and justified to discharge the accused. The trial judge is not to act merely as a 'Post Office' or mouthpiece of the prosecution. He has to shift and weigh the evidence for the limited purpose of finding out whether a case has been made out for framing the charge.

Further, it is also the settled principle of law that every word carries its own meaning and the legislative intention should be given due respect and full effect so as to achieve the object of the statute. Having said that, this Court has no hesitation to conclude that the learned courts below, have not committed any error of law while passing the impugned orders.

The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in the case of State of Delhi versus Gyan Devi & ors. (2000) 8 Supreme Court Cases 239, Dilawar Balu Kurane versus State of Maharashtra (2002)2 Supreme Court Cases 135 and P.Vijayan versus State of Kerala & anr. (2010)2 Supreme Court Cases 398.

Criminal Misc.M-No.7332 of 2012(O & M) 6

Keeping in view the facts of the present case and the above said discussion on the first question posed above, this Court is of the view that no miscarriage of justice has taken place in the present case. Thus, the instant one is not a fit case for exercising the inherent powers by this Court under Section 482 Cr.P.C. It is also to be noted here that although the inherent powers of this Court under Section 482 Cr.P.C. are wide enough, yet the same are to be exercised sparingly, with circumspection and only if a case is made out as per the parameters provided under Section 482 Cr.P.C., itself.

Coming to the second question of law posed above, since no prejudice has been shown to have been caused to the petitioner, much less serious prejudice, the statutory bar provided under Section 397(3) Cr.P.C. would also come in the way of the petitioner, in view of the peculiar fact situation of the instant case. Even the Hon'ble Supreme Court in the case of Shakuntala Devi & ors.(Supra) relied upon by the learned counsel for the petitioner, observed that "it is well settled that the object of the introduction of Sub-Section 3 in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge, are not completely closed and in special cases, bar under Section 397(3) can be lifted."(emphasis is mine). In the case in hand, learned counsel for the petitioner could not make out the present one as a special case to overcome the statutory bar.

On the other hand, the Hon'ble Surpeme Court in Rajan Kumar Machananda versus state of Karnataka 1990 Supp.SCC 132, observed as under:

Heard learned Counsel for the parties. The respondent State had challenged the order before the Court of Criminal Misc.M-No.7332 of 2012(O & M) 7 Sessions when the learned Magistrate before whom the matter was proceeding directed release of the truck in favour of the appellant. The Revisional Court dismissed the petition of the State. A second Revision did not lie at the instance of the State to the High Court in view of the provisions of Section 397(3) of Cr.P.C. Obviously, to avoid this bar, the application moved by the State before the High Court was stated to be under Section 482 Cr.P.C. asking for exercise of inherent powers. In exercise of that power, the High Court has reversed the order of the Magistrate as affirmed by the Sessions Judge. The question for consideration is as to whether the bar under Section 397(3) Cr.P.C. should have been taken note of to reject the revision at the instance of the State Government or action taken by the High Court in exercise of its inherent power has to be sustained. It is not disputed by counsel appearing for the State that the move before the High Court was really on application for revision of the order of the Magistrate releasing the truck. That is exactly what is prohibited under Section 397(3) Cr.P.C. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be labelled as one under Section 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision. The appeal is allowed and we set aside the order of the High Court. The Order of the Magistrate as affirmed by the Session Judge is upheld.

The law laid down by the Hon'ble Supreme Court in Rajan Kumar Machananda' case(supra) came to be reiterated in recent judgment of the Hon'ble Supreme Court in the case of State of Punjab versus Davinder Pal Singh Bhullar & Ors. 2012(1) RCR (Criminal) 126. The Criminal Misc.M-No.7332 of 2012(O & M) 8 relevant observations made by the Hon'ble Supreme Court in para No.38 and 39 in the case of Davinder Pal Singh Bhullar(Supra), which can be gainfully followed in the present case, read as under:

                        In     Rajan Kumar Machananda v. State of
                      Karnataka, 1990 (supp.)          SCC       132,   this     Court
                      examined      a     case   as     to   whether       the       bar

under Section 397(3) Cr.P.C. can be circumvented by invoking inherent jurisdiction under Section 482 Cr.P.C. by the High Court. The Court came to the conclusion that if such a course was permissible it would be possible that every application facing the bar of Section 397(3) Cr.P.C. would be labelled as one under Section 482 Cr.P.C. Thus, the statutory bar cannot be circumvented.

This Court has consistently emphasised that judges must enforce laws whatever they may be and decide the cases strictly in accordance with the law. "The laws are not always just and the lights are not always luminous. Nor, again, are judicial methods always adequate to secure justice". But the courts "are bound by the Penal Code and Criminal Procedure Code" by the very `oath' of the office.

Respectfully following the law laid down by the Hon'ble Surpeme Court, answer to the second question has to be an emphatic 'no'.

The statutory bar provided under Section 397(3) Cr.P.C., cannot be permitted to be circumvented by resorting to a petition under Section 482 Cr.P.C. until and unless a special case is made out and it is shown that a serious prejudice has been caused to the petitioner. The statutory bar under Section 397(3) Cr.P.C. may not be an absolute one in every case but to overcome this statutory bar by invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C., a heavy burden lies on the petitioner to Criminal Misc.M-No.7332 of 2012(O & M) 9 make out a special case showing serious prejudice having been caused.

Thus, under the normal circumstances, the statutory bar under Section 397 (3) Cr.P.C. and the legislative intent behind it would be given due weight so as to achieve the object of the statute.

Reverting back to the facts of the present case, it has been found that the learned courts below have proceeded on factually correct and legally sustainable approach while passing the impugned orders. Each and every aspect of the matter has been dealt with in the right perspective. The learned revisional court has again re-appreciated not only the facts but the law as well. In this view of the matter, it is unhesitatingly held that no prejudice has been caused to the petitioner.

Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present petition, being wholly misconceived, bereft of any merit and without any substance, it must fail.

Resultantly, the instant petition is ordered to be dismissed.

(RAMESHWAR SINGH MALIK) JUDGE 28.08.2012 neenu

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court