Charat Singh vs Piara Lal Formerly Naib Tehsildar, Fatehabad, Now Tehsildar at Ambala

S.S. Sandhawalia, C.J.—Since this Criminal revision must founder against the bed rock of a preliminary objection u/s 397 (3) of the Code of Criminal Procedure against its very maintainability, it is wholly unnecessary to advert to the facts in any detail. Suffice it to mention that the petitioner way back in 1969 had instituted a complaint u/s 218, Indian Penal Code, against Piara Lal respondent, which was dismissed by the Judicial Magistrate 1st Class, Fatehabad, by his order dated the 23rd December, 1972, on the finding that there was no prima facie case against the accused. A revision was carried against the said order which met the same fate after an exhaustive judgment by the Additional Sessions Judge, Hissar, dated the 29th of April, 1974. A matter of some significance is that in this High Court, the revision petition was filed on the 1st of July, 1974 which was admitted to a hearing on the 2nd of September, 1974, which means that the order under revision was passed as also the revision in the High Court was filed long after the coming into the force of the new Code of Criminal Procedure on the 1st of April, 1974.

Mr. I.K. Mehta appearing for the respondent, whilst contending that the present criminal revision was not maintainable in view of the bar u/s 397 (3), Code of Criminal Procedure, 1973, has first placed reliance on a judgment of this Court by Gujral J., reported as Chhail Das Vs. State of Haryana, . This undoubtedly supports his stand and he followed it up with the equally categoric observations of D.B. Lal, J, (who for a while adorned the Bench of this Court, as well,) in Surinder Singh Vs. Inder Sain, . This apart, a long string of authorities consistent with this view have been relied upon to which detailed reference is unnecessary, namely, Bindbasni and others v. State of U.P. 1975 Cri. L.J. 1660. Babu Balgonda Patil and Others Vs. Dhanyakumar Balasaheb Patil Ors., Sunkara Para Rao v. State of Andhra Pradesh, 1978 Cri. L.J. (NOC) 66. Babu Ram v. Mohammad Ali 1977 Crr. L.J. (NOC) 117 (All) and Puvvula Abbulu Vs. The State Station House Officer, Law and Order, Even Mr. G.R. Majithia, learned counsel for the petitioner, conceded that this category of authorities undoubtedly lend support to the view canvassed by the respondent but he laid challenge to the correctness of the same.

That there is a sizeable conflict of precedent on the point appears to be undeniable. Mr. Majithia placed reliance on the Division Bench Judgment of the Madhya Pradesh High Court in Dhruvanath Singh Vs. Shivanaresh Sharma, and two Single Bench authorities of the Patna High Court reported as Narain Mahton and Others Vs. Mahesh Prasad Singh and Others, and Dhanushdhari Das and Others Vs. Mathura Sah and Others, These judgments do lend credence to the contention advanced by Mr. Majithia and apparently run counter to those relied upon by Mr. Mehta in his support.

The star argument of Mr. Majithia, however, was his reliance, by way of analogy, on P. Philip Vs. The Director of Enforcement, New Delhi and Another, . A perusal thereof would, however, show that this was directed primarily to the construction of section 399 (3) of the Code of Criminal Procedure, 1973. The provisions of sections 397 (3) and 399 (3) undoubtedly are similar but as at present advised, it is not possible to say that they are either identical or in pari materia This apart, their Lordships have further observed that a purely interlocutory application in a pending action, which by itself is not an independent mode of seeking redress recognised by law, is not covered by the word "application" as used in section 484 (2) (a) of the new Code of Criminal Procedure and it was not necessary to express any final opinion on that point. I take the view that the aforesaid judgment does not cover the present case either on all fours or by a conclusive analogy.

In the situation aforesaid, the judgment that still holds the field in this Court is Chhail Das v. State of Haryana (supra) Mr. Majithia was fair enough to concede that he could cite no authority of this Court to the contrary. Indeed it was not disputed that the aforesaid view has been arrived at or followed in a number of unreported decisions of this Court. Sitting singly, I feel bound by that judgment and in view of the peculiar circumstances of this case I do not feel compelled to have its correctness examined by a larger Bench. It appears to me that in view of the already wide ranging conflict of authorities in the other High Courts, any view taken by a larger Bench would only add to the legal literature on the point. It appears to be plain that the conflict, if any, can only be resolved by the final Court and it is hoped that it would perhaps be done in the near future. Therefore, following the consistent line of precedent within this Court, I uphold the preliminary objection that u/s 397 (3) of the Code of Criminal Procedure, 1973, a second revision petition is not now competent.

However, in fairness to Mr. Mehta, I must also notice his alternative argument Relying on section 484 (2) of the new Code of Criminal Procedure, he contended that the order of the learned Additional Sessions Judge as also the filing and the admission of the criminal revision in the High Court having taken place after the 1st of April, 1974, there was no revision petition pending before this court immediately prior to the coming into force of the New Code. Therefore, it was contended that the provisions of section 484 (2) of New Code were not attracted and the revision petition having been filed after the enforcement of the New Code has to be decided under its provisions. This contention is not devoid of plausibility and would perhaps distinguish the present case from the ambit of the authorities relied upon by Mr. Majithia, but in view of the acceptance of the preliminary objection aforesaid, it is unnecessary to adjudicate upon the same.

Upholding the bar u/s 397 (3) of the New Code of Criminal Procedure, 1973, I decline to entertain this Criminal Revision and dismiss the same on that ground without adverting to its merits.