Muzaffar Ali vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The applicant in the present C482 application has challenged the impugned order dated 04.03.2013 as passed by respondent no. 2 in Criminal

Revision No. 503/2012 ‘Smt. Neelkamal Sharma vs. State & Others’, whereby, the revisional court while setting aside the order dated

10.09.2012 as passed by the Additional Chief Judicial Magistrate, Roorkee, it had directed the initiation of the proceedings on the basis of the

guidelines, which has been issued in the impugned revisional order dated 04.03.2013.

Instead of venturing into the factual backdrop, which is involved in the instant C482 application, the arguments which has been extended by the

learned counsel for the applicant, is limited from the view point that when the revisional court was exercising its power under Section 397 r/w 40 of

the Cr.P.C., it could not have while reversing the judgment of Additional Chief Judicial Magistrate, Roorkee, Haridwar, could have issued a specific

direction or ought not to have recorded any finding on the merits of the matter, which would have constituted to be the part of the proceedings under

section 156(3), as while passing the order of remand the Court, could have either directed to register an FIR and allow the application No. 156(3), but

when the court is remanding the matter after quashing the order under challenge before the revisional court, then it has had to be an independent

direction and it ought not to be a direction which could even have a slightest effect or influencing effect by any of the findings, which has been

recorded by the revisional court on the fresh decision which is directed to be taken by the order of remand.

On this count the learned counsel for the applicant had placed reliance on a judgment as rendered by the Hon’ble Apex Court in Criminal

Appeal No. 312/2018 ‘Rajendra Rajoriya vs. Jagat Narain Thapak & Another’, in particular, for the purposes of the present C482 application,

the learned counsel for the revisionist has drawn the attention of this Court to the contents of paragraph 15 of the said judgment, which is quoted

hereunder:

“15. On a perusal of the Sessions Court judgment (quoted supra), we are of the opinion that the Sessions Court did not pass an order taking

cognizance. The Sessions Court order should have been construed only as a remand order for further enquiry. The observations made by the Sessions

Court were only justification for a remand and the same did not amount to taking cognizance. In view of the above, the High Court clearly

misconstrued the Sessions Court order and proceeded on an erroneous footing. On the other hand, the revisional court was also in error to the extent

of influencing the Magistrate Court to keep the findings of Sessions Court in mind, while considering the case on remand. The misconception created

before the High Court was due to the fact that the remand order provided discretion for the trial court to conduct further enquiry and thereafter

consider issuing process. The High Court in the case at hand without appreciating the dichotomy between taking cognizance and issuing summons,

quashed the complaint itself on wrong interpretation of law. In the light of the above, the impugned order of the High court cannot be sustained in the

eyes of law.â€​

In particular, the portion of the finding, which has been recorded to the effect that the revisional court while entertaining the revision or recording its

finding should not make any observation, which may have an influencing effect in the decision making process of the Magistrate concerned and,

hence, while considering to pass an order of remand it should have been by an independent order without any prior direction to be adhered to by the

Additional Chief Judicial Magistrate at the time of passing the order.

Another judgment on which the reliance has been placed by the learned counsel for the applicant is the judgment reported in 2018(12)SCC30

‘Madan Mohan vs. State of Rajasthan & Others’, here too the learned counsel for the applicant had placed reliance on paragraph- 15, 16 & 17

of the said judgment, wherein also, the Hon’ble Apex Court has propounded the ratio that when the superior court has issued directions to the

subordinate court by asking them to act in a particular manner for passing an order in a fashion or based on the particular finding, which has already

been recorded by the revisional court, it ought to be avoided because in case if it is an order of remand, the same has to be exercised independently by

the subordinate court and any direction would amount to be a judicial interference in the independence of the exercise powers of the Court in passing

the judgment on an order of remand. Paragraph 15, 16 and 17 of the said judgment is quoted hereunder:

“15) In our considered opinion, the High Court had no jurisdiction to direct the Sessions Judge to ""allow"" the application for grant of bail. Indeed,

once such direction had been issued by the High Court then what was left for the Sessions Judge to decide except to follow the directions of the High

Court and grant bail to respondent Nos. 2 and 3. In other words, in compliance to the mandatory directions issued by the High Court, the Sessions

Judge had no jurisdiction to reject the bail application but to allow it.

16) No superior Court in hierarchical jurisdiction can issue such direction/mandamus to any subordinate Court commanding them to pass a particular

order on any application filed by any party. The judicial independence of every Court in passing the orders in cases is well settled. It cannot be

interfered with by any Court including superior Court.

17) When an order is passed, it can be questioned by the aggrieved party in appeal or revision, as the case may be, to the superior Court. It is then for

the Appellate/Revisionery Court to decide as to what orders need to be passed in exercise of its Appellate/Revisionery jurisdiction. Even while

remanding the case to the subordinate Court, the Superior Court cannot issue a direction to the subordinate Court to either “allow†the case or

“reject†it. If any such directions are issued, it would amount to usurping the powers of that Court and would amount to interfering in the

discretionary powers of the subordinate Court. Such order is, therefore, not legally sustainable.â€​

The intention which has been expressed by the Hon’ble Apex Court is from the view point that if the superior court passes an order paving out

a certain guidelines for considering of a certain factors or circumstances as complaint of by the applicant while passing an order of remand, that will

have an overriding effect on the independence of the decision making process of the subordinate court because in all probability the court may be

influenced by the directions of the superior court and it would amount to usurpation of power of the subordinate courts to act independently.

In the case at hand, the respondent had moved an application under Section 156(3) for registering of an FIR, under Section 120B, 379, 411 and 413

of IPC for commission of offence as alleged to have been committed by the present revisionist, which was complaint of, against the present applicants

by filing the same before the court of Additional Chief Judicial Magistrate on 14.08.2012, wherein, the prayer was made to the following effect:

“It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to set aside the impugned order dated 4.3.2013

(Annexure-16) passed by respondent no. 2 in Criminal Revision No. 503/2012 titled as Smt. Neelkamal Sharma vs. State & Others.

It is further prayed that this Hon’ble Court may graciously be pleased to stay the operation and effect of impugned order dated 4.3.2013 passed by

respondent no. 2 in Criminal Revision No. 503/2012 titled as Smt. Neelkamal Sharma vs. State & Others during the pendency of present criminal

misc. application, otherwise applicant shall suffer irreparable loss and injury.â€​

The said application was rejected by the court of ACJM by an order dated 10.09.2012, which was sought to be challenged by the present revisionist

by filing a criminal revision and the revisional court against which the grievance has been raised by the learned counsel for the revisionist is pertaining

to the specific findings, which has been recorded in paragraph 5 & 6 of the said judgment. The contents of paragraph 5 & 6 of the said judgment has

been construed by the learned counsel for the revisionist, as if it contains a specific direction affecting the merits of the application under Section

156(3) and, in that eventuality, in all probability on remand of the matter, the learned court of Additional Chief Judicial Magistrate, may be

preconceived with the directions issued by the superior court while considering the application of remand. Hence, this court while declining to interfere

in the revisional court’s order dated 04.03.2013, makes it abundantly clear that any finding, which has been recorded in the order of remand dated

04.03.2013, which has even the slightest bearing on an independent consideration of an application under Section 156(3) filed by the respondent, that

will not be taken into consideration by the Additional Chief Judicial Magistrate while passing a fresh order on the application as directed by the

revisional court by the impugned order dated 04.03.2013, it would be decided a fresh without considering any findings which has been recorded by the

Revisional Court having an effect on the merits of consideration of application under Section 156(3) on remand.

Subject to the aforesaid modification, the revisional court’s order stands affirmed.