Surendra Sah v. Kanhaiya Lal Panjiyar — 1975 DIGILAW 132 (PAT)

MUKHERJI, J. This is an application under section 482 of the Code of Criminal Procedure, 1973 (herein after to be referred as 'the Code') which is directed against an order dated 16.1.1975 passed by the Sessions Judge, Purnea, confirming the order dated 26.12.1974 passed by the Sub-divisional Magistrate, Araria, drawing up a proceeding under section 107 of the Code. 2. Mr. A.K. Samaiyar, learned counsel appearing on behalf of the petitioners has urged that the order of the learned magistrate drawing up a proceeding under section 107 of the Code against the petitioners is vitiated for non-compliance with the mandatory provision of section 111 of the Code because the notice which has been served on the petitioners is completely vague as it neither discloses any overt Act, of the petitioners nor discloses the description of the land from where the petitioners are alleged to have damaged the crops of the opposite party. 3. Mr. S.C. Mishra, learned counsel appearing on behalf of the opposite party has raised a preliminary objection to the maintainability of this application. His contention is that when the proceeding under section 107 of the Code was drawn up against the petitioners, they had preferred a revision under section 399 of the Code before the Sessions Judge against the order drawing up of the proceeding. In this connection, the learned counsel has referred to section 397, clause (3) which runs as follows :- "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." The learned counsel has also referred to section 399, clause (3) of the Code which reads thus :- When an 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 the learned counsel, therefore, is that this application under section 482 of the Code which is more or less in the nature of a revision application which has been filed by the petitioners before this Court after having already preferred a revision before the Sessions Judge is not maintainable in view of the provision of law just referred to. above. 4. Mr. Samaiyar, learned counsel appearing on behalf of the petitioners, however, concedes that the filing of a second revision application before this Court after filing of the first revision application before the Sessions Judge is not permissible in law in accordance with section 397, clause (3) of the Code. But he contends that he has not filed a second revision application to this Court and the provisions of section 397, clause (3) of the Code are not attracted to this case. The contention of Mr. Samaiyar is that the petitioners have filed the present application under section 482 of the Code by which they have invoked the inherent power of this Court to prevent abuse of the process of the Court and to secure the ends of justice. 5. It appears from sections 397 and 399 of the Code referred to above that the specific provision has been made in the Code for an aggrieved party to move the Sessions Judge or the High Court in its revisional jurisdiction against an order passed by a magistrate. Both the Sessions Judge and the High Court have concurrent jurisdiction to entertain revisional application by an aggrieved person against an order passed by a magistrate. When the petitioners thought fit to move the Sessions Judge in his revisional jurisdiction against the order of the magistrate drawing up a proceeding under section 107 of the Code against them, they cannot be allowed to move this Court again for agitating the same point which they agitated before the Sessions Court. It is quite clear that in the present application, the petitioners are assailing the same order of the magistrate which they had already assailed before the Sessions Judge in his revisional jurisdiction. The revisional application by the petitioners to this Court against the same order is clearly barred as indicated above. So what the petitioners cannot do directly they cannot be permitted to do indirectly. The revisional application by the petitioners to this Court against the same order is clearly barred as indicated above. So what the petitioners cannot do directly they cannot be permitted to do indirectly. The petitioner cannot be allowed to circumvent the law by merely changing the label of the section under which this application has been filed. There is express provision in the Code to move the Sessions Judge or the High Court in revision against an order passed by a magistrate and section 482 of the Code cannot be ordinarily invoked to over-ride the express provision of law. However wide the power of the High Court may be under section 482 of the Code, they do not extend to the Court granting relief in its inherent jurisdiction when the same relief could be granted under express provision of law and that express provision has already been availed of by the petitioners. Section 399, clause (3) of the Code makes it clear that there is finality in the order passed by the Sessions Judge in his revisional jurisdiction and so this provision would be made nugatory if the petitioners are allowed to agitate the same point in this application under section 482 of the Code although they had raised those very points before the Sessions Judge when they moved him in his revisional jurisdiction. 6. I should not be understood as laying down a general proposition that provision of section 482 of the Code can never be invoked after the exercise of revisional power by this Court or by the Sessions Judge even if the conditions attracting the applicability of section 482 of the Code were satisfied in respect of an order passed by a magistrate, I may further observe that even on the merits, I do not find that the petitioners have got a good case because the notice which had been served on the petitioners cannot be said to be vague. The information given to the petitioners need not contain the details of the allegations made against them. It is enough compliance with the provision of section 111 of the Code if the notice contains important gist of the allegations made against the petitioners. The power exercised under section 482 of the Code is in its nature discretionary and has to be exercised sparingly and carefully in extraordinary case only. It is enough compliance with the provision of section 111 of the Code if the notice contains important gist of the allegations made against the petitioners. The power exercised under section 482 of the Code is in its nature discretionary and has to be exercised sparingly and carefully in extraordinary case only. In my opinion, the present case is not one where such an extraordinary power should be exercised by this Court specially when the petitioners had the opportunity to assail the same point before the Sessions Judge which they are agitating before this Court at present. 7. In view of what has been observed above, the preliminary objection raised on behalf of the opposite party appears to be well founded. In the result, this application is dismissed. Application dismissed.