Shiv Kumar and anr. vs Ramesh Chand

Harphul Singh Brar, J.

This is a petition under section 482 of the Code of Criminal Procedure for quashing the complaint, dated December 5, 1991 filed by respondent Ramesh Chand against petitioners Shiv Kumar and Tara Devi, under sections 420, 468, 467 and 406, Indian Penal Code, and the order, dated March 21, 1992 passed by the Judicial Magistrate First Class: Ambala, whereby the petitioners were summoned for facing the trial on the private complaint filed by the respondent as well as the order dated September 9, 1992 passed by the Additional Sessions Judge, Ambala,

It Is stated in the petition that the petitioner are owners in equal shares of property Nos, 727 and 7.6/2 ZL situated at Main Bazar, Kalka, District Ambala which were inherited by them on the death of Daulat Ram father of petitioner No. 1 and husband of petitioner No 2 who was the absolute owner of those properties. The petitioners had got a power of Attorney executed and registered on July 30, 1990 in favour of Jai Prakash son or Dharam Chand, resident of 543. Lower Bazar, Kalka which was got cancelled on August 20, 1990 by a registered deed dated August 20, 1990 executed by petitioner No. 1. The respondent, i.e. Ramesh Chand filed a complaint on December 5, 1991 under sections 420/4681467/471/406, Indian Penal Code, against the petitioners before the Judicial Magistrate First Class, Ambala, on the pleas that petitioner No. 1 had entered into an agreement to sell in respect of his onehalf share in Property No. 726/2ZL on August 2, 1990 for a consideration of Rs. 70 000/ and that the entire sale consideration had been paid by him, and that the Sale Deed had not been executed which was to be got executed on or before December 31, 1991; and that the Sale Deed in respect of the said property had been executed in favour, of on Ramesh Chand son of Om Parkash, resident of Kalka on October 31, 1990, in spite of injunction obtained by the respondent from the civil Court on September 19, 1990.

It is then stated in the petition that the Judicial Magistrate First Class, Ambala, recorded preliminary evidence under section 202 of the Code of Criminal Procedure. Later on, the Judicial Magistrate passed an order on December 14, 1991 for referring the complaint to the Station House Officer of the area for his report. After receiving the report of the Station House Officer, Police Station, Kalka, the Judicial Magistrate First Class, Ambala, had passed an, order, dated March 21, 1992 whereby he had .summoned the petitioners to face trial on the private complaint filed by the respondent.

It is further stated in the petition that the petitioners filed a Revision Petition against the order, dated March 21, 1992 passed by the Judicial Magistrate First Class, Ambala, in which it was inter alia pleaded that no offence was made out from the averments made in the complaint: annexure P 1 with the petition, and, as such the order dated March 21, 1992 annexed as Annexure P3 with the petition, passed by the Judicial Magistrate First Class, Ambala should be set aside.

According to the petitioners, the Revision Petition filed by the petitioners was dismissed by the Additional Sessions Judge, vide his order dated September, 9, 1992, copy of which is attached as Annexure P5 with this petition.

As already. stated above, the petitioners in this petition have prayed for quashing the complaint the summoning order, dt. March 21, 92 passed by the Judicial Magistrate First Class Ambala, as well as the order, dated September 9, 1992 passed by the Additional Sessions Judge, Ambala, dismissing the Revision Petition of the petitioners before him.

The complaint, summoning order as well as the order of the Additional Sessions Judge, Ambala, dismissing the Revision Petition of the petitioners before him have been assailed on many grounds.

Reply has been filed on behalf of Ramesh Chand respondent, in which a preliminary objection has been taken saying that the petition is liable to be dismissed, as second Revision Petition before this Court is competent. It is stated in the preliminary objection that admittedly the petitioners had filed a Revision Petition, under section 397 of the Code of Criminal Procedure, in this very case challenging the summoning order, dated March 21, 1992 which was dismissed by the Additional Sessions Judge, Ambala, vide his order dated September 9, 1992 attached as Annexure P5 with the petition. It has then been stated in the Reply that inherent powers of this Court under section 482 of the Code of Criminal Procedure cannot be invoked in such cases because there is a Statutory bar under section 397 (2) and (3) of the Code to file a second Revision Petition.

I find force in the Preliminary Objection of the respondent. Admittedly, the Revision Petition was filed by the petitioners against the summoning order of the Judicial Magistrate first Class. Ambala, dated March. 21, 1992 which was dismissed by the Additional Sessions Judge. Ambala, on September 9, 1992 which is attached as Annexure P5 with this petition.

Sec. 397, Code of Criminal Procedure, has conferred concurrent jurisdiction of revisional powers on the High Court as well as on the Sessions Judge. Section 397 (3) of the Code specifically commands that if an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. In this case, the petitioner Sessions Judge, by challenging the summoning order. dated March 21, 1992 of the Judicial Magistrate First Class, Ambala. The petitioner cannot now challenge the same order of the Judicial Magistrate before this Court under section 482 of the Code of Criminal Procedure. It is well settled that inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where there is an express provision barring a particular remedy, the apex Court has mandated in earlier decisions that the High Court cannot and should not resort to the exercise of its inherent powers. At the risk of repetition, sub section (3) of the section 397 of the Code provides for concurrent jurisdiction of the High Court and Sessions Judge in exercise of revisional powers and bars its exercise for the second time by the other of them at the instance of the same person. Obviously, the object of this provision is to prevent multiple exercise of revisional powers and to secure finality of orders. Where a bar of section 397(3) of the Code is attracted, the same cannot be circumvented by invoking inherent powers of this Court. It is well settled principle that what cannot be done directly cannot be allowed to be done indirectly. In has recently been held by the Supreme Court in, Dharampal and others v. Smt. Ramshri and others, 1993(1) Recent Criminal Report 696 : JT 1993(1) SC 6 as under :

"Section 397 (3) bars a second revision application by the same party

It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code."

In the light of the above discussion, the Preliminary objection taken by the respondent is sustained and this petition is consequently dismissed being not competent.