Gauhati High Court
Deba Prasad Dutta vs Madhumita Sharma on 8 June, 2023
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/7
GAHC010023352023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/5/2023
DEBA PRASAD DUTTA
S/O- LATE DIGENDRA MOHAN DUTTA, UKILBAZAR, TARAPUR, SILCHAR-
788003, CACHAR
VERSUS
MADHUMITA SHARMA
UKILBAZAR, TARAPUR,SILCHAR- 788003, CACHAR
Advocate for the Petitioner : MR. D P DUTTA
Advocate for the Respondent : MR. S K GHOSH (r-1)
BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
ORDER
08.06.2023 Heard Mr Deba Prasad Dutta, petitioner in person. Heard Mr S K Ghosh, learned counsel appearing on behalf of the respondent.
2. The petitioner has preferred this writ petition under Article 226, read with 227 of the Constitution of India, read with Section 482 CrPC with a prayer for quashing the FIR, as well as the charges framed against him by the order dated 08.08.2022 passed by Page No.# 2/7 the learned JMFC, Cachar, Silchar, in connection with PRC Case No. 661/2020.
3. The case of the petitioner is that the respondent as complainant lodged an FIR at Silchar Police Station, alleging that on 06.03.2019, at about 11:45 pm, the accused petitioner took one truck which was loaded with stones by entering into Ward No. 24 of Silchar town. When the complainant/respondent being a Commissioner of the said Ward protested and asked him not to enter in the ward with the loaded vehicle as there was possibility of damaging public property, the said accused petitioner started using filthy language towards the complainant/respondent. On receipt of the complaint, a case was registered vide Silchar PS Case No. 752 of 2019, under Sections 341/294/431 IPC, read with Section 3 of Prevention of Damage to Public Property Act, 1984 . After completion of investigation, prima facie a case was found against the petitioner and charge sheet was submitted unders 294/431 IPC, read with Section of 3 of Prevention of Damage to Public Property Act, 1984 (hereinafter, referred to as "the PDPP Act").
4. Accordingly after taking cognizance by the learned Magistrate, under Sections 294/431 IPC, read with Section 3 of PDPP Act, summons were issued to the accused petitioner and he has appeared before the learned Court of JMFC, Silchar. At the time of framing charge after hearing both sides, by order dated 04.10.2021, the accused petitioner was discharged by the learned Magistrate on the ground that that there were no sufficient materials to frame charges under Sections 294/431 IPC, read with Section 3 of the PDPP Act.
5. Against the said order dated 04.10.2021, the respondent/complainant has preferred a revision petition before the Court of Sessions. The revisional Court has allowed the criminal revision, with a direction to the petitioner to appear before the learned trial Court and it was directed to hear afresh the prosecution as well as the accused and pass a fresh order under Section 239 CrPC or Section 240 CrPC, as the case may be, in accordance with law. Subsequently, on receipt of the order from the revisional Court, the case vide PRC Case No. 661/2020 was re-opened and charge was framed against the Page No.# 3/7 accused petitioner under Sections 431/294 IPC, read with Section 3 of PDPP Act. Against framing of charge, the petitioner has preferred the second revision before the Court of Sessions, challenging the order of framing of charge, which was dismissed by the learned Additional Sessions Judge (FTC) Cachar, Silchar.
6. The petitioner has submitted that the learned JMFC has rightly discharged him from the alleged offences as no prima facie case was made out against him. Subsequently, the learned Additional Sessions Judge (FTC), Cachar, Silchar, has wrongly passed the order with a direction to the Magistrate to frame charge against him. The learned Magistrate then framed charge against the petitioner on 08.08.2022 without any materials of the alleged offence, which is illegal and unjust in the eye of law.
7. In support of his submissions, the petitioner has relied upon the following case laws-
1) Sundar Babu & Ors. Vs. State of Tamil Nadu; 2009 (14) SCC 244;
2) Amit Kapoor Vs. Ramesh Chander & Anr. (2012) 9 SCC 460
3) Sanjay Kumar Rai vs. State of Uttar Pradesh & Anr.; U.P., 2021 SCC OnLine SC 367
4) State of Haryana & Ors. Vs. Ch. Bhajan Lal; 1990 SCR Suppl. (3) 259
8. On the other hand, learned counsel for the respondent No. 2 has submitted that the framing of charge is an interlocutory order and hence, no revision lies and as per provision of law, second revision is not maintainable.
9. At this juncture, it is appropriate on the part of this Court to decide as to whether the criminal petition under Section 482 CrPC under the guise of second revision is maintainable. In this context, it is apposite to discuss the provisions of law. Section 397 CrPC is reproduced as under:-
Page No.# 4/7 "397. Calling for records to exercise powers of revision.--
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. "
Section 482 CrPC reads as under:-
"482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
10. While considering Section 397 (3) CrPC, it bars second revision. When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's Page No.# 5/7 jurisdiction was invoked. It also needs to be pointed out that Section 397(3) Cr.P.C. bars second revision by the same person and Section 482, CrPC, cannot be used to circumvent that bar but purpose, object, amplitude and extent of powers available to this Court under Section 482, Cr.P.C. impels this Court to interfere and quash the proceedings if continuation thereof is found to be an abuse of process of the Court or an exercise in futility in view of the fact that the allegations constituting the complaint, even if taken on their face value, do not make out an offence. When revision against the order of Magistrate dismissing the complaint had been dismissed by the learned Sessions Judge, application to the High Court under Section 482 CrPC against the order of dismissal would not lie as it would amount to circumventing this provision which prohibits second revision.
11. The inherent powers cannot be invoked in a manner that the effect would be just entertaining a second revision, which has been expressly barred except in extraordinary cases. The bar as contained in Sub-Section (3) of Section 397 CrPC cannot be circumvented by resorting to Section 482 CrPC. A second revision under the grab of a quash petition under Section 482 CrPC is not maintainable.
12. At this juncture, it is appropriate to consider the following decisions of the Hon'ble Apex Court:-
(a) Deepti alias Arati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751:
"4. ... It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. As we find that the order passed by the High Court is not legal and just it will have to be set aside."
(b) Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283:
"3.Before taking up the merits of the case, it would be proper to consider Page No.# 6/7 the exercise of jurisdiction under Section 482 Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3) Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482 Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."
(c) In the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon'ble Supreme Court held that-
" .... Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. Onthis short ground itself, the impugned order of the High Court can be set aside."
(d) In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Hon'ble Supreme Court held as follows:-
"In Krishnan v. Krishnaveni (1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code.
Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the Page No.# 7/7 revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. ....'' ''
13. Now, applying the principles set out in the judgments referred to above to the case on hand, this Court is of the view that there is no compelling circumstance or exceptional circumstance or it could not even be stated to be a rarest of rare case, warranting invocation of Section 482 Cr.P.C. by this Court, and it is a clear case that under the guise of second revision, the petitioner has approached this Court under Section 482 Cr.P.C. Therefore, this WP (Crl.) No. 5 of 2023 deserves to be dismissed as not maintainable.
14. This Writ Petition (Criminal) stands dismissed and accordingly, disposed of.
JUDGE Comparing Assistant