Kuldip Chand Bhalla vs Kamaljit Singh

V.M. Jain, J.—This is a petition u/s 482 Cr.P.C. filed by the complainant-petitioner, challenging the order dated 10.5.1999, passed by the Sub Divisional Judicial Magistrate, Nawanshahr and order dated 9.7.2001, passed by the learned Additional Sessions Judge, Nawanshahr, vide which the criminal complaint filed by the petitioner was dismissed and the revision petition against the said order was also dismissed, respectively.

The learned Counsel for the petitioner has submitted that the order dated 10.5.1999, passed by the Sub Divisional Judicial Magistrate, Nawanshahr, is illegal, as is does not give any reason as to why the complaint has been dismissed. Even the evidence led by the complainant had not been looked into by the learned Magistrate, while dismissing the criminal complaint. He has further submitted that the learned Additional Sessions Judge, had dismissed the revision petition being a revision against an interlocutory order.

After hearing the learned Counsel for the petitioner and after perusing the record, in my opinion, the present petition u/s 482 Cr.P.C. must succeed and the orders passed by the Courts below, must be set aside. I am further of the opinion that it is not necessary to issue notice to the accused-respondents, in the present petition u/s 482 Cr.P.C., as they have not so far been summoned as accused in the criminal complaint.

The petitioner had filed a criminal complaint, copy Annexure P-1, against the respondents. Thereafter, the petitioner led the evidence in the form of statements of PW1 Kuldip Chand complainant and PW2 Mitha Ram. After referring to the allegations made in the complaint and alleging that the complainant had himself appeared in the witness box as PW 1 and had examined Mitha Ram as PW2, the learned Sub Divisional Judicial Magistrate, passed the following order, while dismissing the complaint on 10.5.1999 :-

"1 have heard the counsel for the complainant.

From the evidence produced by the complainant in support of its allegations as alleged in the complaint, none of the ingredients as detailed in Section .192, 423. 465, 471 read with Section 34 and 120-B IPC is attracted. So I find no prima facie case to summon the accused to stand their trial. I hereby dismiss the complaint. The be consigned to the record-room."

Aggrieved against this order of the learned Magistrate, the petitioner had filed the revision petition. The learned Additional Sessions Judge, after hearing the learned Counsel for the petitioner, dismissed the revision petition, vide order dated 9.7.2001. While dismissing the said revision petition, the learned Additional Sessions Judge, passed the following order :-

"Mr. J.D. Jain, counsel for the revisionist canvassed at the bar that it is forgery of a document and that document has been defined in Section 29 of the Indian Penal Code and that the document in question is covered under the said definition.

Considering the above contention, the preliminary point which is debatable in this case, is maintainability of this revision. Admittedly the earlier complaint was dismissed by the court in default on 8.12.1997 as is so revealed from para No. 5-A of the complaint. Though a subsequent complaint is maintainable in normal set of circumstances, but the earlier complaint should have been relied upon and got attached with the record of the subsequent complaint. Moreover, this revision is only against an interlocutory order and summoning order is not a final order and is merely interlocutory. Such like revisions are barred under the provisions of Section 397(2) Cr.P.C. The revisionist wants to get a relief as it an appellate court and such a relief is not permitted by law in revision petitions in view of the law laid down in Associated Cement Company Ltd. v. Keshwa Nand, 1998 RCR 309 of which I am aware.

In the light of the above discussion, this revision petition fails and is hereby dismissed. File be consigned."

From the above, it would be clear that the learned Sub Divisional Judicial Magistrate, Nawanshahr, while dismissing the criminal complaint, had not applied his mind at all to the facts of the case. The learned Magistrate no where had mentioned as to how and in what manner the ingredients were not attracted in this case. Except mentioning that the complainant himself had appeared as PW1 and had examined Mitha Ram as PW-2 in the preliminary evidence, the learned Magistrate, had not referred to the evidence of the complainant while , dismissing the criminal complaint. Furthermore, except reproducing the allegations made in the complaint, the learned Magistrate, had no where mentioned as to in what manner the offences under Sections 192/423/465/471 read with Sections 34 and 120-B IPC, were not made out in the present case. The order dated 10.5.1999, passed by the learned Magistrate, does not show any application of mind and otherwise is a non-speaking order.

So far as the order dated 9.7.2001, passed by the learned Additional Sessions Judge is concerned, the criminal complaint filed by the complainant had been dismissed by the learned Magistrate. Still the learned Additional Sessions Judge, had termed the said order of the learned Magistrate, as "interlocutory order". I fail to understand that as to in what manner, the said order of the learned Magistrate was interlocutory and why the revision petition was not maintainable against the order dismissing the criminal compliant. It appears that the learned Additional Sessions Judge had not applied his mind at all to the facts of the case. It appears that the learned Additional Sessions Judge, had equated the order of summoning passed by the Magistrate in the criminal complaint with an order of dismissal of the criminal complaint passed by the Magistrate. The two cannot be equated. The summoning order may be interlocutory, but the order dismissing the criminal complaint could not be interlocutory. Furthermore, while dismissing the revision petition, the learned Additional Sessions Judge, had observed that the earlier complaint was dismissed by the Court in default and even though the subsequent complaint is maintainable but the earlier complaint should have been relied upon and got attached with the record. This was a ground taken by the learned Additional Sessions Judge, for dismissing the revision petition. A perusal of para 5-A of the criminal complaint would show that the petitioner had made a reference in the complaint that the previous complaint was dismissed in default on 8.12.1997. Whether the previous complaint is attached with the present complaint or not, was the job of the learned Magistrate and the petitioner could not be blamed for the same.

In this view of the matter, in my opinion, the order passed by the learned Additional Sessions Judge, dismissing the revision petition is also liable to he set aside especially when it does not show any application of mind.

In view of the above, the present petition is allowed and the orders dated 10.5.1999 and 9.7.2001 passed by the Sub Divisional Judicial Magistrate. Nawanshahr and the Additional Sessions Judge, are set aside and the case is sent back to the learned Magistrate, for deciding the matter afresh, in accordance with law, after due application of mind.

The complainant through his counsel is directed to appear before the learned Magistrate, on 27.9.2001, for further proceedings, in accordance with law.

Petition allowed.