Pawan & Others vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

On 17.08.2016 a complaint was registered by the complainant/respondent no. 2, being Complaint Case No. 2019/2016, as against the present revisionists, who were posed to be the probable accused persons in the said complaint. As per the set of allegation, which was narrated by the complainant/respondent in the said complaint, it related to the probable commission of an offence under Sections 323, 316, 452, 504 & 506 of IPC, which was alleged to have been committed within the jurisdiction of Thana Kotwali, Gangnahar, Roorkee, District Haridwar.

At this stage when this Court is scrutinizing the veracity of the revisional court's order under challenge at the behest of the present revisionists, i.e. 11.03.2019, it is confined with regards to the argument, which is being extended by the learned counsel for the revisionist, that the order dated 11.03.2019 was falling without outside the ambit and scope of exercise of revisional power as vested under Section 397 by the 2nd Additional Sessions Judge, Haridwar, whereby, while setting aside the order dated 04.06.2018, rejecting the complaint filed by respondent no. 2, by the Judicial Magistrate, the same was set aside, revision was allowed, and the matter was remitted back to the Court of Judicial Magistrate for a fresh decision on the complaint of respondent no. 2. In fact, the story, which has been narrated in the present revision by the revisionists is that as against the set of allegations registered in the complaint of 17.08.2016 of respondent no. 2, initially the proceedings under Section 200 and 202 was carried and consequently the Trial Court, is said to have passed an order on the said complaint case on 26.11.2016, whereby the complaint of respondent no. 2 was rejected by the Court of Judicial Magistrate.

Being aggrieved against the said order of rejection of complaint dated 26.11.2016, the complainant has preferred a revision by invoking the provisions contained under Section 397 of Cr.P.C., before the Court of 3rd Additional Sessions Judge, Haridwar which was registered as Criminal Revision No. 605 of 2016 'Smt. Reeta Saini vs. State of Uttarakhand & Others'. The revisional court after hearing the parties concerned and by virtue of an order dated 13.03.2018, had set aside the order passed by the Judicial Magistrate in the Complaint Case No. 2019 of 2016 on 26.11.2016 and consequently, has remitted the matter back to the Trial Court for a reconsideration of the complaint exclusively on its own merits.

Being aggrieved against the revisional court's order dated 13.03.2018 as rendered by District and Sessions Judge in Criminal Revision No. 605 of 2016, which was allowed and remanded the matter for fresh decision, The Sessions Court had passed the followed order:

"आदेश

प्रस्तुत दाण्डिक पुनरीक्षण स्वीकार किया जाता है। न्यायालय द्वितीय न्यायिक मजिस्ट्रेट, रूड़की, हरिद्वार द्वारा परिवाद संख्याः 2019/2016 श्रीमती रीटा सैनी प्रति कुंवर पाल सैनी एवं अन्य में पारित प्रश्नगत आदेश दिनांकित 26.11.2016 निरस्त किया जाता है। न्यायालय द्वितीय न्यायिक मजिस्ट्रेट, रूड़की, हरिद्वार को इस निर्णय की एक प्रति के साथ आहूत की गयी पत्रावली इस निर्देश के साथ वापस किया जाता है कि अवर न्यायालय इस निर्णय के प्रकाश में परिवादी/ पुनरीक्षणकर्ता द्वारा प्रस्तुत परिवाद में पुनः सुनवाई/तर्क का एक अवसर प्रदान करके विधिनुसार आदेश पारित करना सुनिश्ति करें।

इस दाण्डिक पुनरीक्षण की पत्रावली अभिलेखागार में प्रेषित हो।"

The present revisionist has preferred a revision before this High Court and during the pendency of the revision and as a consequence of the order of remand dated 13.03.2018 it is contended by the learned counsel for the revisionist that the Trial Court has registered it as Complaint Case No. 1800 of 2018 and has taken a decision afresh by an order dated 04.06.2018 and consequently, the complaint, which was submitted by respondent no. 2 was yet again rejected in the light of the provisions contained under Section 203 of Cr.P.C. Simultaneously, the revision, which was preferred before this Court by the revisionists, being aggrieved against the revisional court's order dated 13.03.2018 also came up for consideration before this Court on the same day and the revision as against the order dated 13.03.2018, which was considered by this Court on 04.06.2018 was dismissed as having rendered infructuous in the light of the order dated 04.06.2018.

Being aggrieved against the rejection of the complaint by an order dated 04.06.2018 rendered as a consequence of the remand the respondent no. 2 has yet again preferred a revision before the Court of 2nd Additional Sessions Judge, Haridwar, and the Additional Sessions Judge, Haridwar, had passed the impugned order under challenge in the present revision, i.e. dated 11.03.2019, whereby, Revision No. 374 of 2018 'Smt. Reeta Saini vs. State', which was registered against the order of Trial Court dated 04.06.2018, was allowed and as a consequence of allowing of the revision the matter was yet again remitted back to the Trial Court by an order dated 11.03.2019 to the Trial Court for deciding the controversy afresh on the complaint filed by respondent no. 2.

The arguments, which has been raised by the learned counsel for the revisionists is that the powers under Section 397 if it is to be read with the provisions contained under Section 399 of the Cr.P.C. rather it exercises the power equivalent to that, which is vested with the Appellate Court as provided under Section 398 because by virtue of sub-section (1) of Section 399 the powers and ambit of revisional power has been held to be equivalent to that of exercise of powers of revision by the High Court under Section 401 (1) of Cr.P.C. Sections 398 and 399 of Cr.P.C. is quoted hereunder:

"398. Power to order inquiry

On examining any record under Section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged:

Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

Sessions Judge's powers of revision

In the case of any proceeding the record of which has been called for by himself the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-Section (1) of section 401.

Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-Section (1), the provisions of Sub-Sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge.

Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court."

The argument of learned counsel for the revisionist by drawing implications from Section 399 it was from the view point that as per Section 399 is concerned, once it attracts Section 401 of Cr.P.C. in the exercise of revisional powers under Section 397 and if Section 401 is attracted then it widens the scope of exercise of power by the revisional court of Sessions, when it is exercising powers under Section 397, so as to bring the implications of the exercise of powers under Sections 386, 389 and 391, which has been vested with the revisional power of the High Court under Section 401, which has been made enforceable on the Sessions Court by the provisions contained under sub-section (1) of Section 399. Section 401 (1) of Cr.P.C. is quoted hereunder:

"401. High Court' s Powers of revisions.

(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392."

What he contend is that in such an eventuality the impugned order of revision would fall to be within the ambit of that powers of appeal as contemplated under Section 386 and as such while exercising the powers under Section 386, on which reliance has been placed by the learned counsel for the revisionist, he wants to contend that the revisional court too while exercising its revisional power under Section 397 to be read with Sections 399, 401 and in turn it has to be read with Section 386 also the impugned order under challenge will fall to be within the ambit of sub-section (d) of Section 386 of Cr.P.C., which is quoted hereunder:

"386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a)......

(b)......

(c)......

(d) in an appeal from any other order, alter or reverse such order."

What he intends to contend that in case for the aforesaid reasons and logic as assigned above, rather the provisions of Section

386 has been made applicable with the revisional courts while exercising its powers under Section 397 and in that eventuality, the revisional court exercises the corresponding power of an Appellate Court and thus by way of the implications of sub-clause (d) of Section 386, the revisional court could have either alter or reversed the order. Meaning thereby, what he tries to infer is that by the revisional court's order under challenge in the present revision, it ought not to have been confined to an order of remand rather the revisional court too itself when it was exercising the powers under Section 398, it could have either reversed or validated order passed by the Trial Court, but it ought not to have remitted the matter particularly in the light of the fact that as contended by the revisionist that when the learned Trial Court in its order dated 04.06.2018 while rejecting the complaint purporting it to be not satisfying the conditions contained under Section 203 of the Cr.P.C. it was absolutely justified order as the learned Trial Court has considered all the parameters and aspects, which were required to be fulfilled in order to entertain a complaint and, hence, there was no apparent error in the order dated 04.06.2018, which could be subjected to revision under Section 397 of the Cr.P.C., which as per the argument raised above, the revisional court could have scrutinized the propriety of the order dated 04.06.2018, on its own merits as if it was exercising appellate jurisdiction.

Particularly learned counsel for the revisionist has extracted the words used in the revisional court's order to the following effect:

"आदेशित किया जाता है कि वह निगरानी में उपरोक्त दिये गये संप्रीक्षा के आधार पर निगरानीकर्ता को पुनः सुनकर विधिसम्मत् आदेश पारित करे।"

What he draws an inference is as if the revisional court's order dated 11.03.2019, which is impugned in the present revision contained a specific direction for the Trial Court to the effect that while deciding the complaint afresh, its procedure or considerations would be regulated by the findings, which has been recorded or the directions which has been given by the revisional court's order, i.e. in its order dated 11.03.2019.

In order to elucidate his argument further the learned counsel for the revisionist has drawn attention of this Court to the various observations and findnigs, which has been made in the revisional court's order while scrutinizing the propriety of the order dated 04.06.2018 rejecting the complaint. What he contends that if the direction given by the revisional court is to the effect that the complaint is to be decided in a particular manner in the light of the finding, which has been recorded by the learned revisional court, which would deceive the very purpose of conducting the fair trial in relation to complaint, which was registered by respondent no. 2.

On a joined reading of the order under challenge with the Trial Court's order the learned counsel for the revisionist was posed with the question by this Court to show from the finding, which has been recorded by the revisional court as to which part of the revisional court's order impugned in the present revision gives any specific direction to the Trial Court as to the manner in which and under what considerations the Trial Court has to decide the complaint afresh as a consequence of the order of remand rendered by the revisional court.

Learned counsel for the revisionist tried to draw the attention of this Court with regards to the finding, which has been recorded by the revisional court while reversing the finding of the impugned order before it, i.e. 04.06.2018, pertaining to the manner in which the evidence has been appreciated and considered by the Trial Court, which was quite obvious for the revisional court, to have adhere to for the reason that according to the argument of the learned counsel for the revisionist itself that the revisional court's power is equivalent to that of the power of an appellate forum in view of the conjoined reading of provisions contained under Section 399 and Section 401 of Cr.P.C. on which he has harped upon. In that eventuality, as per his own argument when the revisional court's order happens to be in paralance to be power as that of an appeal in such an eventuality, then the revisional court while considering the propriety of an order passed by the Trial Court was bound to redetermine the aspects pertaining to the appreciation of evidence and the manner in which it has been done by the Trial Court and before drawing any logical adverse inference against the Trial Court's order for remitting the matter the revisional court was bound to deal with the evidence and the manner of its appreciation adopted by the learned Trial Court and consequently the revisional court too, cannot be faulted from that aspect of the controversy as argued.

These findings recorded by the revisional court pertaining to dealing with the findings of the Trial Court and the considerations made by the revisional court will not amount to that the revisional court was stipulating certain conditions or was stipulating to observe certain findings with regards to the manner in which the evidence has to be appreciated at the time when the complaint is being reconsidered as a consequence of remand of the matter, or before the cognizance on the complaint could be taken. Thus, this Court is of the view that the revisional court's order does not apparently contain any specific direction nor it lays down any modalities under which the Trial Court was directed to reconsider the complaint filed by the respondent no. 2 for the offences as already narrated in the earlier part of this present judgment.

Learned Government Advocate has raised an argument by way of objection to the revision to the effect that the revision at the behest of the revisionist challenging the impugned order of remand would not be tenable for the reason that the issue pertaining to the entertainment of a complaint or its rejection was an issue which was exclusively within the domain of consideration between the complainant and the Court itself, it was the Court which had to appreciate the facts for the purposes of entertaining the complaint. Since the complaint was rejected its consequential effect would be that no cognizance as such, as of now was taken by the Trial Court, i.e. till the date of rejection of the complaint by an order dated 4.06.2018 and if that be the situation when the cognizance has yet not been taken till date as a matter of fact there was no cause of action yet perceived by the learned Trial Court to be taken against the revisionist and hence, if the revision if at all is tenable it would be tenable at the behest of the complainant only whose complaint has been rejected and, thus, until and unless there happens to be a cognizance of an offence by an order issued by the Trial Court, the revision at the behest of the revisionist, i.e. the present revision would not lie. Thus, until and unless there is a cognizance against him simultaneously, he would not acquire a competence to challenge the order of the Trial Court dated 04.06.2018 or the revisional court order dated 11.03.2019 by filing a present revision challenging the said order as in fact that there was no cause of action against the revisionist yet perceived of by the criminal courts, he is not in picture of the proceedings of the Courts below.

On the converse, the argument of the learned counsel for the revisionist is to the effect that the very fact that as against the rejection of the complaint since the revision stands allowed and the matter has been once again remitted back to the Trial Court for its reconsideration that in itself will amount to attach finality, as far as the revisionists are concerned for the purposes of registration of a complaint against them. As it has been remitted back to the Trial Court for its fresh consideration, for the purposes of registration of complaint, which has yet to chance, hence, this Court is of the view that revisionist has no cause of action as of now to file the present revision against impugned order.

This court is not in agreement with the argument of the learned counsel for the revisionists for the simple reason being that the implications of the order of remand dated 11.03.2019 would be only limited to the extent that the rejection of complaint of respondent no. 2 as made against the complainant/respondent no. 2 has been set aside and consequently the complaint filed by the complainant/respondent no. 2 was to be reconsidered afresh and by the said direction issued by the impugned order dated 11.03.2019, yet again up to this stage there was nothing against the revisionists because the complaint was yet to be entertained and registered against them and as of now no cognizance has been taken by the Criminal Courts against the revisionist.

Thus, this argument of the learned Government Advocate to the effect that the revision at the behest of the revisionist as against the order of 11.03.2019, impugned in the present revision, would not be tenable in the absence of there being any cognizance being taken by the Trial Court against the revisionists after registering the complaint, is sustained because in order to given any cause to the probable accused person referred in the complaint that reference of name in the complaint that in itself will not give a cause of action to the probable accused person where the complaint is yet to be registered by the Trial court for taking cognizance of an offence complained of by respondent no. 2. The apprehension, which has been expressed by the revisionists in the present revision, is to the effect that there was a positive conclusion and direction drawn by the revisional court in the impugned order dated 11.03.2019 is absolutely untenable in view of the consideration made oft the impugned order.

Consequently, this Court is not inclined to interfere in the revision. Hence, the revision lacks merit and is dismissed accordingly.

However, there would no order as to cost.