Pritam Singh vs Dalip Singh and others

V.S. Aggarwal, J. (Oral)

This is a petition filed by Pritam Singh petitioner seeking quashing of the orders pased by the learned Judicial Magistrate, Dasuya dated 4.7.1988 and by the learned Additional Sessions Judge, Hoshiarpur dated 1.2.1989 and directing the Judicial Magistrate, Dasuya to proceed with the complaint filed by the petitioner.

The relevant facts are that petitioner filed a complaint against the respondent in the court of learned Judicial Magistrate, Dasuya alleging that father of the petitioner had executed a will dated 24.10.1973 in favour of the petitioner and respondent No. 1. He had given them equal share in the property. Puran Kaur respondent No. 2 had been given a limited right. The said will did not suit respondents 1 and 2. They connived with respondent No. 3 and fabricated a forged will dated 24.10.1973. Respondent No. 2 by virtue of the said forged will was made owner of 1/3rd share of the total property. The will was scribed by respondent No. 3. The petitioner filed a civil suit titled Pritam Singh v. Puran Kaur in court of Subordinate Judge, Dasuya. In the said civil suit respondents 1 and 2 produced the forged will. It was alleged by the petitioner in the complaint that mutation was sanctioned by respondents 1 and 2 on basis of the forged will. On these broad facts, a complaint was filed with respect to offences punishable under Sections 420/467/471/34 IPC. The respondents were summoned and thereafter the evidence was produced by the petitionercomplainant. The witnesses were cross examined. The learned Judicial Magistrate on appraisal of the evidence on 4.7.1988 held that the evidence on the record is not sufficient for framing of the charge. If charged is framed, it will not entail the conviction of the respondents. Accordingly, the complaint was dismissed and the respondents were discharged. The petitioner preferred a revision petition in the court of Sessions which was dismissed.

The petitioner contends that there was sufficient evidence and material on the record for the charge to be framed and the trial court as well as the Court of Sessions did not appreciate the evidence in true perspective. On this ground it is claimed that both the orders should be quashed. Sections 244 and 245 of the Code of Criminal Procedure read :

"244. Evidence for prosecution. (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

......

When accused shall be discharged. (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."

Perusal of the above said provisions shows that after the accused appeared before the Court, the prosecution evidence has to be recorded. Under Section 245 Cr.P.C. if after recording of the evidence it is felt that no case against the accused is made out which if unrebutted would warrant his conviction, the accused shall be discharged. It is clear from the plain language of Sections 244 and 245 Cr.P.C. that the requirement of law is not the same as it was when preliminary evidence is recorded and the accused are summoned. In the present case in hand both the Courts below had discussed the evidence. They concluded that there was no ground to frame the charge against the respondents. Keeping in view the nature of the evidence, the delay in filing of the complaint and withdrawal of the civil suit by the petitioner, it is felt that there is no just ground for this court to interfere in the findings so arrived at.

There is another way of looking at the matter. As mentioned above after the respondents were discharged by the learned Judicial Magistrate, the revision petition filed by the petitioner had been dismissed by the Court of Sessions. Keeping in view subsection (3) of Section 397 Cr.P.C. a second revision petition is barred. This Court would be slow to exercise its inherent powers. It would only interfere if there is an abuse of the process of the Court or the interests of justice otherwise so require. In the case of Shri Ganesh Narayan Hegde v. Shri S. Bangarappa and others, 1995(2) RCR (Crl.) 373 : JT 1995(4) S.C. 124 the same question was considered and in paragraph 12 the Supreme Court held :

"While it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges. A few decisions of this Court may usefully be referred at this stage."

Same view prevailed with the Supreme Court in the subsequent decision in the case of Deepti @ Arati Rai v. Akhil Rai and others, JT 1995(7) S.C. 175. Therein it was observed :

"The High Court also should have taken care to verify the record before accepting the concession made by the learned Government Advocate. It would have also applied its mind to the aspect that second revision application after dismissal of the first one by Sessions Court is not maintainable and that inherent power under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. As we find that the order passed by the High Court is not legal and just, it will have to be set aside."

The position herein is identical. In the absence of it being so that there is any abuse of the process of the court or that interest of justice so requires, there is otherwise also no cogent reason for exercising the inherent powers of this Court.

For these reasons, petition being without merit must fail and accordingly it is dismissed.