Neena vs Sandeep Malhotra

Pratibha Rani, J.—This is a second petition u/s 482 Cr.P.C for setting aside the order dated 21st January, 2011, pass�d by learned ASJ, Delhi. The ground for filing the second petition for setting aside the order dated 21st January, 2011, passed by ASJ in Crl.Revision Petition No. 105/10/10, is that the first petition bearing Crl. M.C. No. 980/2011 was dismissed as withdrawn due to non understanding of the judgment in Dhariwal Tobaco Products Limited and others Vs.State of Maharashtra and Another - (2009) 2 SCC 370, where the Supreme Court held that in their considered opinion V.K. Jain (Supra) does not lay down a good law and it was over-ruled. It has been submitted on behalf of the petitioner that in Adalat Prasad''s case while observing that Mathew''s case does not lay down correct law, it was further held that if Magistrate takes cognizance of offence, issues process without any allegation against accused or no material implicating accused or in contravention of provisions of Sections 200 and 202 Cr.P.C., order of Magistrate may be vitiated. Aggrieved accused can obtain relief not by invoking Section 203 Cr.P.C., because Cr.P.C does not contemplate review of order. In the absence of any review power or inherent power with subordinate criminal courts, remedy lies in invoking Section 482 Cr.P.C.

The contention of the learned counsel for the petitioner, Mr.Ashok Arora is that in view of the legal position laid down in Adalat Prasad''s case, the revision petition before the learned ASJ was not maintainable. Hence the impugned order is liable to be set aside. The only remedy available to the respondent is to invoke the jurisdiction of this Court u/s 482 Cr.P.C., and the order passed by the learned ASJ, exercising revisional jurisdiction, being without jurisdiction is liable to be set aside.

The submission of the learned counsel for the petitioner that the earlier petition was withdrawn due to lack of understanding of the legal proposition laid down in Dhariwal Tobaco''s case, is liable to be rejected for the reasons given in paras 10 and 11 of the said decision, which are reproduced as under:-

Inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of.

In fact in Adalat Prasad Vs. Rooplal Jindal and Others, to which reference has been made by the learned Single Judge of the Bombay High Court in V.K. Jain and others (supra) this Court has clearly opined that when a process is issued, the provisions of Section 482 of the Code can be resorted to.

It may be true, as has been noticed by the High Court that thereunder availability of appellate or revisional jurisdiction of the High Court did not fall for its consideration but in our considered opinion it is wholly preposterous to hold that Adalat Prasad (supra), so far as it related to invoking the inherent jurisdiction of the High Court is concerned, did not lay down good law.

At the outset, it is necessary to mention that after withdrawal of the first petition No. 980/2011, petitioner could not have filed the second petition, praying for the same relief. Thus filing of the present petition itself is a gross abuse of the process of law. Even if it is assumed for the sake of arguments that the earlier petition was withdrawn due to the reason referred to above, the legal position remains the same which was brought to the notice of the learned counsel for the petitioner on 15th May, 2012. Since the respondent could have challenged the order by filing a revision petition and the order passed by the learned ASJ being passed in exercise of the revisional jurisdiction, duly vested in that Court, the impugned order calls for no interference. The ground for re-filing this petition being not available to the petitioner, this petition is also dismissed.