Vishnuprasad vs Devshribai And Ors

The applicant has preferred the present petition under Section 482 of the Cr.P.C. being aggrieved by order dated 16/01/2018 passed by Additional Sessions Judge, Kannod, District-Dewas in Criminal Revision No. 8/2017, whereby order dated 30/11/2016 passed by Judicial Magistrate First Class, Kannod, District-Dewas in MJC No. 58/20009 has been affirmed, by which the cognizance has been taken by the trial Court against the applicant for commission of offence punishable under Sections 420, 467, 468 and 471/34 of the IPC.

Brief facts of the case are that on 27/09/2006, respondent No.1 filed an application before the learned Judicial Magistrate First Class, Kannod, District-Dewas stating that a criminal case No. 126/2006 was pending before the learned Court against co-accused-Rajkumar, wherein Madhav Singh has furnished the surety bond of Rajkumar on the basis of bhu-adhikar-rin-pustika of his own deceased-brother-Banne Singh by impersonating himself as Banne Singh. In the aforesaid matter the identification of Madhav Singh as Banne Singh has been done by the present applicant, who is a practicing advocate and he prayed that aforesaid act of the accused persons falls under the category of a criminal offence, therefore, a criminal case should be registered against them.

Upon appreciating the aforesaid complaint, learned JMFC issued notices to the accused persons including the present applicant and in reply of the notice, the applicant submitted that on the bail papers the photograph of co-accused-Madhav Singh was affixed and on the basis of it, he identified him. After conducting the inquiry learned Magistrate, vide order dated 30/11/2016 directed the Police-Station-Kannod to register a criminal case against the accused persons including the present applicant.

Being aggrieved with the aforesaid order, the accused persons have preferred a Criminal Revision No. 8/2017 before the Additional Sessions Judge, Kannod, District-Dewas and after hearing the parties, learned ASJ exonerated the co-accused-Rajkumar on the ground that he was in jail at the time of said incident, therefore, he is not liable for the prosecution. However, learned ASJ, affirmed the order of JMFC, Kannod so far it relates to co-accused-Madhav Singh and the present applicant. This order is a subject matter of challenge in the present petition.

Learned counsel for the applicant submitted that the original records of Criminal Case No. 126/2006 have already been destroyed by the concerned court as per the rules and orders (criminal). In absence of the original record, no case is made out against the applicant. It is also submitted that being a lawyer, the applicant is not having any responsibility to identify the surety and he never identified any wrong person, who furnished security before the criminal court.

There is no evidence available on record that applicant intentionally identified co-accused-Madhav Singh as Banne Singh. Criminal Case No. 126/2006 has already been decided by the trial Court by acquitting the accused persons, therefore, there was no need to take cognizance against the applicant, hence, the trial Court has committed error in directing the police to register the criminal case against the applicant. Under these circumstances, learned counsel for the applicant prays for setting aside of the impugned order. In support of his contention, learned counsel for the applicant placed reliance in the judgment of Hon'ble Bomay High Court in the Case of Mohan Vs. State of Maharashtra passed in Criminal Appeal No.3387/2005 on 17/10/2013.

On the other hand, learned Public Prosecutor opposed the prayer and prayed for rejection of the petition.

Having heard learned counsel for the parties and perused the record.

In the instant case, it is not disputed that the applicant, who is a practicing Advocate, identified the accused-surety-Madhav Singh as Banne Singh. From the perusal the bail papers, it appears that there is no endorsement in the affidavit that the applicant identified the Madhav Singh as Banne Singh on the basis of introduction given by his clerk or client. To the contrary in the affidavit filed alongwith the surety bond, it is mentioned that the applicant personally knew the surety Banne Singh, who had already expired much prior to the aforesaid date. This is not a case, in which the applicant has identified the wrong person on the basis of representation made by his clerk or client, who provided the surety to him, therefore, the judgment relied by the learned counsel for the applicant in the case of Mohan Vs. State of Maharashtra (supra) is not attracted in the facts of the present case.

Looking to the material available on record, this court is of the view that prima facie alleged offence is made out against the applicant. The applicant has filed a revision petition before the Sessions Court against order dated 30/11/2016 passed by Judicial Magistrate First Class, Kannod, District-Dewas, by which the cognizance has been taken against him for the commission of offence punishable under Sections 420, 467, 468 and 471/34 of the IPC and the same was rejected by the impugned order. Being aggrieved with the aforesaid order, the applicant has preferred present petition under Section 482 of the Cr.P.C. before this Court.

Under Section 397(3) of the Code of Criminal Procedure, a second revision petition after the first had been dismissed is not maintainable with the High Court. More often than once it has been observed that inherent powers of the Court should not be utilised. Reference to some of the precedents in this regard would be in the fitness of things. In the case of Dharampal v. Smt. Rameshri, 1993 (1) RCR (Crl.) 696 : (1993) 1 SCC 435 : AIR 1993 SC 1361, the Apex Court held as under:-

"......The  Sessions  Judge  had  dismissed  the  said application on 14th May, 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under S. 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Ist respondent. On this short ground itself, the impugned order of the High Court can be set aside."

Similarly, in the decision rendered in the case of Deepti @ Arati Rai v. Akhil Rai, Judgement Today 1995 (7) Supreme Court 175 the Supreme Court held that once first revision petition has been dismissed, the second revision petition would not be maintainable and further that inherent powers cannot be ordinarily utilised when the second revision is expressly barred. In the case of Krishnan v. Krishnaveni, 1995 (3) RCR (Crl.) 638 : (1997) 4 SCC 241 : AIR 1997 SC 987 , similar question had come up for hearing. It was held that inherent powers could only be utilised if there is failure of justice. In those cases, the High Court may interfere but reiterated that second revision by way of filing petition under Section 482 of the Cr.P.C. is not maintainable after the dismissal of the first revision petition.

The position becomes clear. This is a second revision petition filed after the dismissal of the first revision petition. It must be held to be not maintainable and, in fact, specifically barred under sub-section (3) of Section 397 of the Code of Criminal Procedure.

Consequently, the present petition fails and is accordingly dismissed being devoid of any merits as well as not maintainable.

Let a copy of this order alongwith the record to be sent to the concerned trial Court for necessary information.