Himachal Pradesh High Court
Satya Devi vs Of on 29 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.668 of 2021 .
Reserved on: 16.11.2023 Date of Decision: 29.12.2023.
Satya Devi ...Petitioner
Versus
of
Yash Pal and another ...Respondents
Coram
rt
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Peeyush Verma, Advocate, For the Respondent : Mr. Romesh Verma, Sr. Advocate with Mr. Hitesh Thakur, Advocate.
Rakesh Kainthla, Judge The petitioner has filed the present petition under Section 482 of the Criminal Procedure Code against the judgment dated 16.02.2021 passed by the learned Additional Sessions Judge(1), Shimla, vide which the revision filed by the petitioner (complainant before learned Trial Court) was dismissed. (The parties shall hereinafter be referred to in the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 2same manner as they were arrayed before the learned Trial Court for convenience.) .
2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint against the accused for the commission of offences punishable under Sections 409 and 420 read with Section 120B of IPC. It was of asserted that the complainant is an uneducated and illiterate rt person. She is the owner of the land in Tehsil Chirgaon, District Shimla, which was inherited by her from her father. She is married in a different village and is unable to manage the land.
Hence, she executed a power of attorney in favour of accused no.
1 authorizing him to manage her land. The accused no. 1 taking advantage of the absence of the complainant, executed a Gift Deed in favour of his wife, accused no. 2. This gift deed was executed without the consent, knowledge or authority of the complainant. The complainant never authorized accused no. 1 to execute a gift deed of her land and the gift deed is null and void qua the rights of the complainant. The accused no. 1 misused his position and executed the gift deed to benefit the accused no. 2.
Hence, the complaint was filed for taking action against the accused.
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 33. The learned Trial Court recorded the statement of the complainant and called for the report under Section 202 of .
Cr.P.C. The learned Trial court held that the suit regarding the execution of the Gift Deed is pending before the High Court. The Power of Attorney conferred unrestricted authority upon the holder. The complaint was premature because the issue was yet of to be determined in the Civil Suit filed by the complainant;
hence, the complaint was dismissed.
rt
4. Being aggrieved from the order passed by the learned Trial Court, the complainant filed a revision, which was decided by learned Additional Sessions Judge-I, Shimla. Learned Additional Sessions Judge-I, Shimla held that a Civil Suit was pending between the parties to determine the legality of the gift deed. The dispute was civil. There was no restriction in the gift deed and the learned Trial Court had rightly dismissed the complaint.
5. Being aggrieved from the order passed by the learned Revisional Court, the present petition has been filed asserting that the orders passed by the learned Trial Court and the learned Revisional Court are against the law and the facts. It was ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 4 wrongly held that the matter was civil and the complaint could not be adjudicated during the pendency of the civil suit. The .
complaint was regarding the commission of the offence and had nothing to do with the pending civil suit. Learned Courts below erred in holding that no restriction was provided in the General Power of Attorney. The rule of ejusdem generis applies while of construing the document and the power of gift could not have been inferred by the fair reading of the General Power of rt Attorney. The offences punishable under Sections 409 and 420 read with Section 120B of IPC were made out and learned Courts erred in dismissing the complaint.
6. I have heard Mr. Peeyush Verma, learned counsel for the complainant and Mr. Romesh Verma, learned Senior Counsel assisted by Mr. Hitesh Thakur, learned counsel for the respondents/accused.
7. Mr Peeyush Verma, learned counsel for the petitioner/complainant submitted that the learned Trial Court erred in dismissing the complaint. No specific power of executing a gift deed was conferred in the General Power of Attorney and the learned Courts below erred in holding that ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 5 there was no restriction on the holder of the General Power of Attorney. It was also wrongly held that the matter involved a .
civil dispute. A set of facts giving rise to a civil dispute can also give rise to criminal liability and the learned Courts below erred in holding that no case was made out against the accused;
therefore, he prayed that the present petition be allowed and the of orders passed by learned Courts below be set aside.
8. rt Mr. Romesh Verma, learned Senior Counsel assisted by Mr. Hitesh Thakur, learned counsel for the respondents/accused submitted that the learned Courts below had rightly held that the facts asserted in the complaint give rise to the civil liability and not the criminal liability. The revision filed by the complainant before the Sessions Court was dismissed and it is not permissible to file a second revision by classifying it as a petition under Section 482 of Cr.P.C.
Therefore, he prayed that the present petition be dismissed.
9. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
10. Professor Glanville Williams explained in his celebrated book Learning the Law (Tenth Edition Steven and Sons) ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 6 that the facts by themselves cannot determine civil or criminal liability. The same set of facts may give rise to criminal or civil .
liability. The distinction between the two is not the nature of the act but the nature of proceedings that are taken to seek the redressal. It was observed:
"The distinction between a crime and a civil wrong, of though capable of giving rise to some difficult legal problems, is in essence quite simple. The first thing to understand is that the distinction does not reside in the rt nature of the wrongful act itself. This can quite simply be proved by pointing out that the same act may be both a crime and a civil wrong. Occasionally at a bus station, there is someone who makes a living by looking after people's impedimenta while they are shopping. If I entrust my bag to such a person, and he runs off with it, he commits the crime of theft and also two civil wrongs-- the tort of conversion and a breach of his contract with me to keep the bag safe. The result is that two sorts of legal proceedings can be taken against him; a prosecution for the crime, and a civil action for the tort and the breach of contract. (Of course, the plaintiff in the latter action will not get damages twice over merely because he has two causes of action; he will get only one set of damages.) To take another illustration, if a railway signalman, to dumb forgetfulness a prey, fails to pull the lever at the right moment, and a fatal accident occurs on the line, his carelessness may be regarded as sufficiently gross to amount to the crime of manslaughter, and it is also the tort of negligence towards the victims of the accident and their dependents and a breach of his contract with the Railway Executive to take due care in his work. It will be noticed that this time, the right of action in tort and the right of action in a contract are vested in different persons.::: Downloaded on - 29/12/2023 20:32:58 :::CIS 7
These examples show that the distinction between a crime and civil wrong cannot be stated as depending upon what is done, because what is done may be the same in .
each case. The true distinction resides, therefore, not in the nature of the wrongful act but in the legal consequences that may follow. If the wrongful act is capable of being followed by what are called criminal proceedings, that means that it is regarded as a crime (otherwise called an offence). If it is capable of being followed by civil proceedings that means that it is of regarded as a civil wrong. If it is capable of being followed by both, it is both a crime and a civil wrong. Criminal and civil proceedings are (in the normal case) easily distinguishable: the procedure is different, the outcome is rt different, and the terminology is different.
11. The Hon'ble Supreme Court also held in Randheer Singh v. State of U.P., (2021) 14 SCC 626: 2021 SCC OnLine SC 942, that a given set of facts may make out a civil wrong as well as the criminal offence and merely availability the civil remedies is no ground to quash the criminal proceedings. It was observed:
"34. The given set of facts may make out a civil wrong as also a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the charge sheet so far as this appellant is concerned. The other accused Rajan Kumar has died."
12. Therefore, it is not correct to say that the same facts may not give rise to civil and criminal liability.
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 813. The complaint was filed for the commission of offences punishable under Sections 409 and 420 of IPC. Section .
409 requires the entrustment of the property whereas, Section 420 requires the dishonest delivery of the property. Both these cannot exist simultaneously because, in the entrustment, the property is delivered under some trust, whereas, in cheating, the of property is obtained by fraud and there is no entrustment.
Therefore, it is not permissible to charge a person with the rt commission of offences punishable under Sections 409 and 420 of IPC in respect of the same set of facts. It was laid down by Madras High Court in Vadivel vs. Packialakshmi 1996 Crl. L.J 300 that in order to attract cheating dishonest intention is the sine qua non and to constitute the breach of trust, voluntary entrustment is necessary. Both these states of mind are mutually exclusive. It was observed:-
8. Thus, it is seen that for identifying the concept of criminal cheating, as provided under Section 416 of the Indian Penal Code, the ingredients of fraudulent, dishonest intention have become the basic sine quo non and if it is there or, identified, then it is to be further ascertained that as a result of which the person so represent must be made to deliver any property to the other and that the inducement must be inherent with the intention to keep the same or to utilise the said property for the use and utilisation of the person, who made such ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 9 an inducement within such intention. Whereas in the concept of the criminal breach of trust, as defined under Section 405 of the Indian Penal Code, voluntary .
entrustment following dominion over such property by one to the other person has become necessary to be identified and that the property has become necessarily disentitled, misappropriated or converted in such a way as provided by the Section. If the ingredients set out in the above sections of the law are identified, upon the materials placed by the prosecution, then, Sections 406 of and 420 of the Indian Penal Code respectively being the punishment sections come into operation. However, while doing such legal exercises, it has become imperative for the Court to see that the criminal breach of rt trust and cheating, though, generally involves dishonest intention, but, both are mutually exclusive and different in the basic concept, in the context that criminal breach of trust is voluntary and cheating, is purely on the basis of inducement with dishonest intention. In this regard, I have to say my view that both the concepts of law for the respective offences are totally distinct, different and accordingly, mutually exclusive from each other. Unless and until these are adequate materials available and made before the Court of law, both offences can be dealt with together.
14. Hence, the complaint could not have been filed for the commission of offences punishable under Sections 409 and 420 of IPC.
15. It is not the case of the complainant that any representation was made to her and she was induced to execute a Power of Attorney in favour of accused no. 1. She categorically stated in Para 3 of the complaint that she was married in village ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 10 Mandli and was not in a position to manage her property, therefore, she executed a Power of Attorney in favour of the .
accused no.1. She stated on oath that she is residing at Village Mandli at a distance of 20-30 kilometres from her parental home. She inherited the property from her father. She was unable to manage the property due to the distance. She executed of a General Power of Attorney in favour of accused no.1, who is her brother by relation. Therefore, it was never stated either in the rt complaint or the statement on oath that accused no. 1 induced the complainant to execute a Power of Attorney in his favour by deception; rather, it appears that the execution of the Power of Attorney was voluntary act of the complainant, Hence, no offence punishable under Section 420 of IPC is made out on the basis of the facts asserted and proved before the learned Trial Court.
16. A copy of the Power of Attorney (Ext. PW1/B) reads that the powers were conferred upon the holder to mortgage, sell etc, to obtain the sale consideration and get the deed registered. It was submitted that the power was conferred only for the mortgage, sale and similar acts and not to alienate the property without consideration by way of a gift. Reliance was ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 11 placed upon the judgment of the Hon'ble Supreme Court in Umadevi Nambiar versus Thamarasseri Roman Catholic Diocese, .
2022 (7) SCC 90, to submit that the power of alienation has to be specifically conferred in the power of attorney and in the absence of any power of alienation, the accused no. 1 had no authority to execute the gift deed. This judgment will not help of the complainant. This judgment was delivered in a civil case while construing the authority of the holder to do the acts rt mentioned in the power of attorney. This Court does not mean to say that the Rules of interpretation in the Civil and Criminal cases are different but the Court has to be guided by the standard of a reasonable person while construing the criminal liability. A plain reading of this document does not lead to such inference.
Whether the word et Cetera is to be read as ejusdem generis or to include every kind of transaction is a paradise of the lawyer and not the domain of the lay persons. Once, the power was conferred to sell and mortgage etc, any lay person could have construed it to include every kind of act. Such an interpretation was possible is apparent from the fact that the gift deed was registered without any objection from any person, which shows that even the Registering Authority considered the power of ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 12 executing the gift deed conferred by the Power of the Attorney.
Therefore, the mere execution of the gift deed, even if in excess .
of the authority, will not constitute a criminal liability.
17. Section 405 defines the term criminal breach of trust and provides that if any person entrusted with the property or with any dominion over the property dishonestly of misappropriates or converts to his use that property or rt dishonestly uses or dispossesses of that property in violation of any direction of law prescribing how such trust is to be discharged is to said to have committed the criminal breach of trust. It was laid down by Hon'ble Supreme Court in Indian Oil Corporation Limited versus NEPC India Limited 2006 (6) SCC 736, that taking away hypothecated property by the borrower will not constitute criminal misappropriation because, in hypothecation, the borrower retains the ownership and possession. It was observed:-
"[17] We will next consider whether the allegations in the complaint make out a case of criminal breach of trust under Section 405 which is extracted below :
"405. Criminal breach of trust. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 13 property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or .
implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."
A careful reading of the section shows that a criminal breach of trust involves the following ingredients : (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person of should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal rt should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. The following are examples (which include the illustrations under Section 405) where there is 'entrustment' :
(i) An 'Executor' of a Will, with reference to the estate of the deceased bequeathed to legatees. (ii) A 'Guardian' with reference to a property of a minor or person of unsound mind. (iii) A 'Trustee' holding a property in trust, with reference to the beneficiary. (iv) A 'Warehouse Keeper' with reference to the goods stored by a depositor. (v) A carrier with reference to goods entrusted for transport belonging to the consignor/consignee.
(vi) A servant or agent with reference to the property of the master or principal. (vii) A pledge with reference to the goods pledged by the owner/borrower. (viii) A debtor, with reference to a property held in trust on behalf of the creditor in whose favour he has executed a deed of pledge-
cum-trust. (Under such a deed, the owner pledges his movable property, generally vehicle/machinery to the creditor, thereby delivering possession of the ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 14 movable property to the creditor in turn delivers back the pledged movable property to the debtor, to be held in trust and operated by the debtor.
.
[18] In Chelloor Mankkal Narayan Ittiravi Nambudiri v.
State of Travancore, Cochin, this Court held :
"....to constitute an offence of criminal breach of trust, it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the of property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction rt of law or legal contract, by the accused himself or by someone else which he willingly suffered to do.
It follows almost axiomatically from the definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit."
In Jaswantrai Manilal Akhaney v. State of Bombay, this Court reiterated that the first ingredient to be proved in respect of a criminal breach of trust is 'entrustment'. It, however, clarified :
"...But when Section 405 which defines "criminal breach of trust" speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event."::: Downloaded on - 29/12/2023 20:32:58 :::CIS 15
[19] The question is whether there is 'entrustment' in hypothecation. Hypothecation is a mode of creating security without the delivery of title or possession. Both .
ownership of the movable property and possession thereof remain with the debtor. The creditor has an equitable charge over the property and is given a right to take possession and sell the hypothecated movables to recover his dues (Note: We are not expressing any opinion on the question of whether possession can be taken by the creditor, without or with recourse to a court of law.). The of creditor may also have the right to claim payment from the sale proceeds (if such proceeds are identifiable and available). The following definitions of the term 'hypothecation' in P. Ramanatha Aiyar's Advanced Law rt Lexicon (Third (2005) Edition, Vol.2, pp. 2179 and 2180) are relevant :
"Hypothecation: It is the act of pledging an asset as security for borrowing, without parting with its possession or ownership. The borrower enters into an agreement with the lender to hand over the possession of the hypothecated asset whenever called upon to do so. The charge of hypothecation is then converted into that of a pledge and the lender enjoys the rights of a pledge."
'Hypothecation' means a charge in or upon any movable property, existing in future, created by a borrower in favour of a secured creditor, without delivery of possession of the movable property to such creditor, as a security for financial assistance and includes floating charge and crystallization of such charge into fixed charge on movable property. (Borrowed from Section 2(n) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002)"
But there is no 'entrustment of the property' or 'entrustment of dominion over the property' by the hypothecate (the creditor) to the hypothecator (the debtor) in hypothecation. When possession has ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 16 remained with the debtor/owner and when the creditor has neither ownership nor beneficial interest, obviously there cannot be any .
entrustment by the creditor.
[20] The question directly arose for consideration in Central Bureau of Investigation v. Duncans Agro Industries Ltd., Calcutta. It related to a complaint against the accused for offences of criminal breach of trust. It was alleged that a floating charge was created by the accused debtor on the goods by way of security under a deed of hypothecation, of in favour of a bank to cover the credit facility and that the said goods were disposed of by the debtor. It was contended that the disposal of the goods amounted to a criminal breach of trust. Negativing the said contention, rt this Court after stating the principle as to when a complaint can be quashed at the threshold, held thus :
"...a serious dispute has been raised by the learned counsel as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression 'entrusted dominion over property' has been used in a wide sense in Section 405, I.P.C. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or violation of the contract. The expression 'entrusted' appearing in Section 405, IPC is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression 'trust' in Section 405, IPC is a comprehensive expression and has been used to denote various kinds of relationships like the ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 17 relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee. When some goods are hypothecated by a person to .
another person, the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in another person and the of offender must hold such property in trust for such other person or his benefit. In the case of a pledge, the pledged article belongs to some other person but the same is kept in trust by the pledge. In the rt instant case, a floating charge was made on the goods by way of security to cover up the credit facility. In our view, in such case for disposing of the goods covering the security against credit facility, the offence of criminal breach of trust is not committed."
[21] The allegations in the complaints are that the aircraft and the engines fitted therein belong to NEPC India and that a charge was created thereon by NEPC India, in favour of IOC, by way of hypothecation to secure repayment of the amounts due to IOC. The terms of hypothecation extracted in the complaint show that the ownership and possession of the aircraft continued with NEPC India. Possession of the aircraft, neither actual nor symbolic, was delivered to IOC. NEPC India was entitled to use the aircraft and maintain it in a good state of repair. IOC was given the right to take possession of the hypothecated aircraft only in the event of any default as mentioned in the Hypothecation Deed. It is not the case of the IOC that it took possession of the aircraft in the exercise of the right vested in it under the Deed of Hypothecation. Thus, as the possession of the aircraft remained all along with NEPC India in its capacity as the owner and the Deed of Hypothecation merely created a ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 18 charge over the aircraft with a right to take possession in the event of default, it cannot be said that there was either entrustment of the aircraft or entrustment of the .
dominion over the aircraft by IOC to NEPC India. The very first requirement of Section 405, that is the person accused of criminal breach of trust must have been "entrusted with the property" or "entrusted with any dominion over property" is, therefore, absent".
18. A similar view was taken by this Court in H P of Financial Corporation versus Bindu Tyre Retreading and Vulcanizing Works and Ors 2011 Criminal Law Journal 269 and it was held:-
rt "[8] Otherwise also, the Respondent remained himself to be the owner of the property alleged to have been hypothecated. At no point in time, its custody was transferred to the Corporation and the Corporation did not entrust the hypothecated items to the Respondent. The complainant has miserably failed to prove this essential ingredient by leading cogent evidence.
Therefore, in these circumstances, the complainant has failed to prove the offence charged against the Respondent which only creates civil liability. Therefore, the acquittal of the Respondent cannot be interfered with.
Appeal sans merit and is accordingly dismissed".
19. In the present case, only the Power of Attorney was executed in favour of accused no. 1. There is no recital in the Power of Attorney that the property was delivered to the accused. The complainant specifically stated in Para 2 of the complaint that she is the owner in possession of the property.
::: Downloaded on - 29/12/2023 20:32:58 :::CIS 19She stated in Para 3 that the power of Attorney was executed in favour of accused no. 1 to manage the property. She stated on .
oath that the Power of Attorney was executed for managing the property and doing all the acts ancillary to it. She never stated that she had delivered the possession to the accused no. 1.
Hence, it is doubtful that an offence punishable under Section of 409 of IPC will be made out on the facts asserted and proved before the learned Trial Court.
rt
20. Therefore, both the learned Courts below had taken a reasonable view.
21. The first revision preferred by the petitioner/complainant was dismissed and there is a specific bar to filing the second revision. It was laid down by the Madras High Court in Ramgopal v. State of M.P., 2018 SCC OnLine MP 924, that the inherent power under Section 482 of Cr.P.C. cannot be exercised when the petition has been filed in the nature of the second revision. It was observed:
9. In this regard in the case of Krishnan v. Krishnaveni, (1997) 4 SCC 241 in para 10 has held as under:--
"10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 20 accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or 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 a grave of miscarriage of justice or abuse of 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 rt 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. The object of the criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously."
10. Therefore, in view of the law laid down by the Supreme Court in above cited case, it is found that the Court may not exercise its inherent power under Section ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 21 482 of the Cr.P.C. when the said petition is preferred before the Court is of the nature of second revision petition.
.
22. A similar view was taken by the Delhi High Court in Kapoor Chand Gupta v. State, 2023 SCC OnLine Del 3373, wherein it was held:
"13. In Rajan Kumar Manchanda v. State of Karnataka, 1990 of Supp SCC 132, the Hon'ble Supreme Court has held as under:
"2. ...A second Revision did not lie at the instance of rt 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 the exercise of inherent powers. In the 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 the exercise of its inherent power has to be sustained. It is not disputed by the counsel appearing for the State that the move before the High Court was really an 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 the 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 ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 22 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."
14. In Surender Kumar Jain v. State, 2012 SCC OnLine Del 571, a learned Single Judge of this Court, held as under:
"5. The issue regarding the filing of a petition before the High Court after having availed the first revision petition before the Court of Sessions has come up before the Supreme Court and this Court of repeatedly. While laying that section 397(3) Cr. P.C. laid the statutory bar of the second revision petition, the courts have held that the High Court rt did enjoy inherent power under section 482 Cr. P.C. as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It all depends not only on the facts and circumstances of each case but as on whether the impugned order brings about a situation which is an abuse of the process of court, there was a serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551, State of Orissa v. Ram Chander Aggarwal, AIR SC 87, Raj Kapoor v. State (Delhi Administration), 1980 Cri LJ 202, Krishnan v. Krishnaveni and Kailash ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 23 Verma v. Punjab State Civil Supplies Corporation, (2005) 2 SCC 571."
15. In Varinder Kaur v. State (NCT of Delhi), 2017 SCC .
OnLine Del 10638, a learned Single Judge of this Court, has observed as under:
21. It is worth mentioning that in the garb of a petition under Section 482 CrPC, the petitioner has filed a second revision petition which is not maintainable. In the case Wajid Mirza v. Mohammed Ali Ahmed, 1982 Cri LJ 890, the High Court of Andhra of Pradesh has observed as under:--
'23. This Court in Re PuritipatiJagga Reddy, rt (1979) 1 AP LJ 1: AIR 1979 AP 146 at p. 149 (FB) held:
The language of sub-section (3) of Section 397 contains no ambiguity. If any person had already chosen to file a revision before the High Court or to the Sessions Court under subsection (1), the same person cannot prefer a further application to the other Court. To put it in other words, sub-sec. (1) and (3) make it clear that a person aggrieved by any order or proceeding can seek remedy by way of revision either before the High Court or the Sessions Court. Once, he has availed himself of the remedy, he is precluded from approaching the other forum. It is equally manifest from the provisions of sub-section (3) that this bar is limited to the same person who has already chosen to go either to the High Court or to the Sessions court seeking a remedy and that it does not apply to the other parties or persons.' ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 24
22. The Bombay High Court has taken the same view in the case Inayatullah Rizwi v.
Rahimatuallah, 1981 Cri LJ 1398 and observed that:
.
'We are, therefore, of the view that a revision to the High Court would be tenable at the instance of a party who is unsuccessful before the Sessions Judge, or who is aggrieved by his order. In other words, a concurrent finding of the Sessions Judge and the Courts below becomes final, but when the Sessions Judge of reverses the order of the Court below in revision the defeated party is not precluded from moving to the High Court. The consensus of judicial opinion as can be seen rt supports only this view.'
16. In Pooja Walia v. State, 2011 SCC OnLine Del 2462, a learned Single Judge of this Court has held as under:
"8. At the very outset, I must state that the present petition is in essence a second revision filed by the petitioner raising the same set of grievances which were raised by her before the learned Additional Sessions Judge. Although Section 482 Cr. P.C. starts with a non-obstente clause that would mean merely on account of the fact that a person has preferred a revision in the Sessions Court, he need not be necessarily debarred from assailing the order in the High Court in the exercise of its power in Section 482 Cr. P.C. in order to prevent abuse of process of law or to secure the ends of justice, but ordinarily in the absence of this, the Court would discourage a party to have a petition under Section 482 Cr. P.C."
17. In RituSethi v. State, 2023 SCC OnLine Del 35, this Court has observed as under:
"10. The grounds taken in the present petition as well as during the course of the arguments are the same which were taken by the petitioner before the ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 25 learned Appellate Court. The grounds raised before the learned Appellate Court were dealt with by a detailed threadbare analysis of the prosecution .
evidence on record and the finding of the learned trial Court. It was for the petitioner to demonstrate the perverseness in the impugned judgment passed by the learned Appellate Court in order to cause interference by this Court with two concurrent findings of acquittal qua the present respondent. The Hon'ble Supreme Court in Manju Ram of Kalita v. State of Assam, (2009) 13 SCC 330, while dealing with the scope of reappreciation of evidence by a higher court in criminal revision observed in para 9 as under:
rt "9. ...It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse..."
Following the aforesaid judgment, the Hon'ble Supreme Court recently in Malkeet Singh Gill v. State of Chattisgarh, (2022) 8 SCC 204, has held as under:
"10. Before adverting to the merits of the contention, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any ::: Downloaded on - 29/12/2023 20:32:58 :::CIS 26 proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to .
be well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings."
23. Therefore, it is not permissible to exercise the power of under Section 482 of Cr.P.C. as a second revision and the petition is liable to be dismissed on this ground as well.
rt
24. Consequently, the present petition fails and the same is dismissed.
(Rakesh Kainthla) Judge 29th December, 2023 (Saurav Pathania) ::: Downloaded on - 29/12/2023 20:32:58 :::CIS