Deependra Bisht vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

A Criminal Complaint Case No. 4605 of 2017 'Smt. Bijyanti @ Salma vs. Smt. Bishani @ Naseem Bano & Others', which was registered before the court of A.C.J.M. Haldwani, District Nainital. The said complaint case, which was registered before the Court of Additional Chief Judicial Magistrate has rejected the same by an order dated 22.12.2017 in view of the provisions contained under Section 203 of the Cr.P.C.

Being aggrieved against the rejection of the complaint, it is the complainant, who has invoked the revisional jurisdiction by filing a Criminal Revision No. 38 of 2018 'Smt. Bijyanti @ Salma vs. Smt. Bishani Devi & Another' the revisional court after considering the propriety of the order dated 22.12.2017, had passed an order dated 27.07.2019, by virtue of which while setting aside the order of the Additional Chief Judicial Magistrate dated 22.12.2017 has remitted the matter back to the court of Additional Chief Judicial Magistrate for a fresh consideration of the complaint as submitted by the respondent to pass fresh order after hearing the parties and has fixed 7.08.2019 for hearing before the Trial Court.

The contention of the learned counsel for the revisionist is that as far as the direction, which has been issued on 22.12.2017 for reconsideration of the complaint submitted by the respondent no. 2 herein, was absolutely not tenable for the reason that even otherwise also as per the finding, which has been recorded by the revisional court the rejection of a complaint cannot be faulted of because the rejection, has been followed on account of the finding, which has been recorded in the order dated 22.12.2017 to the effect that the Xerox copy of the document for the purposes of sustaining the complaint cannot be read in evidence and there is no such sustainable evidence produced to maintain complaint filed for the purposes of drawing proceedings under Sections 420, 467, 468 & 406 of IPC.

The revisional court by the impugned order dated 27.07.2019 has allowed the revision and has remitted the matter back to the Court of Additional Chief Judicial Magistrate, Haldawni, for its fresh consideration after a rightful consideration and appreciation of the entire material, which is before the Additional Chief Judicial Magistrate in support of the complaint, which has been filed by respondent no. 2.

The present revisionist against whom the proposed complaint was filed and sought to be registered by respondent no. 2 has questioned the order of remand dated 27.07.2019, on the ground that since before the revisional court he was made as a party against whom the proposed complaint was sought to be registered, if any order of remand is passed for reconsideration of the application for registration of the complaint it would obviously be prejudicing his rights because the remand by the revisional court cannot be that with a certain specific directions or laying down any modalities, which is to be adopted by the Additional Chief Judicial Magistrate for the purposes of reconsideration of the complaint respondent no. 2 on its remand by the order dated 22.12.2017.

As far as this court is concerned, this court is of the view that the rejection of the complaint by the order dated 22.12.2017 and its subsequent successful challenge in the revision by an order dated 27.07.2019 resulting into allowing of a revision and remanding the matter for deciding afresh, it is exclusively within the domain of the revisional court and inter se between respondent no. 2 whose complaint was to be considered by the court of Additional Chief Judicial Magistrate, this court is of the view that as far as the present revisionist is concerned, where he questions the propriety of the order dated 27.07.2019 in the present revision at present he has got no stakes, so as to legally entitle him for giving challenge to the order dated 27.07.2019 and his rights would only be taken into effect when the complaint is directed to be registered and cognizance is taken on the same, but as far as the direction issued by the revisional court's order dated 27.07.2019 and the manner in which it has been sought to be challenged on the pretext that as if there happens to be a specific direction issued by the revisional court with regards to the manner in which the complaint is to be reconsidered after the remand, is not acceptable by the this court for the reason that the reason assigned in paragraph 8 of the impugned judgment of remand, which is being challenged in present revision, is made on account of the fact that the entire records were not appropriately taken into consideration while passing the order of rejection of complaint by the order dated 22.12.2017.

The apprehension, which has been expressed by the learned counsel for the revisionist, to the effect that the order of remand dated 27.07.2019 impugned in the revision, it contains a specific direction is absolutely untenable because even otherwise also on the remand when the proceedings of the complaint is revived back for consideration of the propriety as to be whether the complaint is be registered or not, this court is of the view that the Trial Court has to reconsider the application of complaint from scratch 1 without being influenced by any of the directions issued by the revisonal court. Because as per the observations, which has been made in the order impugned its a simplicitor remand and the court of A.C.J.M. has been simply directed to reconsider the application afresh independently.

In that view of the matter, since this court is of the view that at present the revisionist has no cause of action as against the order of remand impugned in the present revision because till date no cognizance after registering the complaint has been taken. Hence, this court is not inclined to entertain the revision.

Consequently, the revision is dismissed. However, it is expected that the Trial Court would consider the complaint independently without being influenced by any of the observations made by the impugned order.