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1995 DIGILAW 20 (CAL)

DILIP SHAW ALIAS DULA v. SWARUP DAW

1995-01-12

N.K.BHATTACHARYYA

body1995
N. K. BHATTACHARYYA, J. ( 1 ) BY this revision the petitioner challenged Order No. 13 and Judgment dated 14th June, 1994 in Criminal Motion No. 220 of 1992 passed by the learned Additional District Judge, 3rd Court, Barasat, North 24-Parganas, confirming the order dated 29th July, 1992, passed by the learned Executive Magistrate, Barrackpore, in M. P. Case No. 1842 of 1992, and prayed for quashing of the entire proceedings in those two cases. ( 2 ) THE short background of the case is that opposite party No. 1 herein moved the court of the learned Executive Magistrate, Barrackpore, under sections 145 (1)/145 (6)/146 of the Code of Criminal Procedure and the case was registered there as N. P. Case No. 1842 of 1992. In that proceeding the learned Executive Magistrate by his order dated 29th July, 1992 directed drawing up a proceeding under section 145 read with section 146 (1) Cr. P. C. and appointed I. C. , Baranagore Police Station as a Receiver and directed him to attach the scheduled property and materials by taking and keeping in possession thereof and to hold the same under attachment until further orders. Against that order the petitioner herein moved in revision before the learned Additional Sessions Judge, 3rd Court, Barasat, in Criminal Revision No. 220 of 1992 and by an Order No. 13 and Judgment dated 14th June, 1994 the learned Judge dismissed the said revisional application and directed the learned Executive Magistrate to proceed with further enquiry into the case as early as possible from the stage where it was started and confirmed the order of the learned Magistrate, dated 29th July, 1992 passed in M. P. Case No. 1842 of 1992. ( 3 ) THE revisionist was before the learned Additional Sessions Judge and has come up with the second revision before this Court again. ( 4 ) MR. Durga Sankar Mallick, learned Advocate for the petitioner, contended that a second revision is maintainable under the law inasmuch as Section 482 of the Code of Criminal Procedure is an independent provision and independent of other Sections of the Code of Criminal Procedure, empowering the High Court to exercise its inherent jurisdiction to hear a second revision. ( 5 ) MR. ( 5 ) MR. Biman Kanti Basu, learned Advocate appearing for the opposite party No. 1, on the other hand, contended that even in exercise of the inherent power under Section 482 Cr. P. C. the provisions under Sections 397 (3) and 399 (3) of the said Code cannot be circumvented and in support of his submission Mr. Basu relied on two Supreme Court decisions ; one is the case of Rajan Kumar Machananda v. The State of Karnataka reported in 1990 (Supp) SCC 132 and the other one is Dharampal and Ors. v. Smt. Ramshri and Ors. reported in 1993 Cr LJ 1049. ( 6 ) HEARD the submissions of the learned Advocates for the parties and considered the materials on record. ( 7 ) IT is an admitted position that the petitioner herein, who moved the Sections Court in revision, again has challenged the revisional order in a second revision before this Court. The only point that is to be decided is whether the self-same revisionist can challenge the said revisional order in a second revision before this Court? ( 8 ) IN the case of Dharampal and Ors. (supra) and in the case of Rajan Kumar Machananda (supra) the Supreme Court has hold that in exercise of the power under Section 482 of the Code of Criminal Procedure the provision under section 397 (3) of the Code of Criminal Procedure cannot be circumvented. Furthermore, under Sub-section (3) of Section 399 Cr. P. C. , when any application for revision is made by or on behalf of any person before the learned Sessions Judge, the decision of the learned 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. So, in the matter of being taken up before the learned Sessions Judge in revision the order of the learned Sessions Judge is final so far as the person who has moved the said revision before him, is concerned and no other revision at the instance of such person shall be entertained by the High Court. ( 9 ) FOR the reasons aforesaid, I do not find any material for interfering with the orders impugned and I also do not find any merit in this revisional application. The revisional application is accordingly dismissed. ( 9 ) FOR the reasons aforesaid, I do not find any material for interfering with the orders impugned and I also do not find any merit in this revisional application. The revisional application is accordingly dismissed. Stay, if any, stands vacated. ( 10 ) BEFORE parting with this case it will be appropriate to record that though the petitioner moved the revisional application on 12th August, 1994 before the Court which was affirmed on 3rd August, 1994 but filed the supplementary affidavit in the Court on 9th January, 1995. ( 11 ) IN paragraph 8 of the supplementary affidavit it has been stated that if the application (revisional application) is found technically not maintainable in that event that application be treated as an application under Article 227 of the Constitution of India to protect the interest of the petitioner and to secure the ends of Justice. ( 12 ) IT has been stated specifically that in an earlier supplementary affidavit which was affirmed on 15-12-94 this prayer was not made. ( 13 ) RECORD does not show that any such supplementary affidavit affirmed on 15th December, 1994 has been filed by the petitioner in the court. ( 14 ) BE that as it may, after the delivery of judgment in open court rejecting the revisional application the learned Advocate for the petitioner Mr. Durga Shankar Mallick submitted that the application of the petitioner for alteration of the revisional application under Section 482 of the Criminal Procedure Code, 1973 in petition under Article 227 of the constitution of India be allowed. ( 15 ) THIS submission of Mr. Mallick does not appear to be a very bona fide one. During the course of the argument he never mentioned about conversion of the revisional application under section 482 of the Criminal Procedure Code, 1973 to a petition under Article 227 of the Constitution of India. ( 16 ) HE waited till the end to know the result of his petition under Section 482 of the Code of Criminal Procedure and when the result is made known to him as the dictation was made in the open court he then made such prayer for converting that application into an application under Article 227 of the Constitution of India. ( 17 ) I have already in my judgment pointed out that even under Section 482 of the Code of Criminal Procedure a second revision is not maintainable. ( 18 ) ALL along argument was advanced by Mr. Mallick on the basis that a second revision is maintainable under Section 482 of the Criminal Procedure Code. Legally, apart from the question of bona fide, such conversion of the petition under Section 482 of the Code of Criminal Procedure to a petition under Article 227 of the Constitution of India, is permissible. ( 19 ) EVEN Under Article 227 of tire Constitution of India a revisional order cannot be challenged, by way of a second revision. That is the dictum laid down by the Supreme Court in the case of Jagir Singh v. Ranbir Singh reported in AIR 1979 SC 381 : 1979 Crl L J 318. ( 20 ) IN the above view of the matter I reject the prayer as made in the supplementary affidavit for converting the petitioner application for revision under section 482 of the Criminal Procedure Code to a revisional application under Article 227 of the Constitution of India. Prayer rejected.