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2000 DIGILAW 1217 (PNJ)

Kishan Chand Arora v. O. P. Arora

2000-10-06

K.S.KUMARAN

body2000
Judgment K.S.Kumaran, J. 1. Petitioner-Kishan Chand Arora filed Criminal Complaint No. 439 of 24.12.1997 against respondents under Sections 420, 463, 464, 465, 468, 471 and 120-B I.P.C. The learned Judicial Magistrate Ist Class, Chandigarh dismissed the complaint by his order dated 24.9.1998. According to the learned Counsel for the petitioner, the petitioner got the certified copy of the said order and filed a Criminal Revision Petition before the Sessions Court, Chandigarh on 20.11.1998, but the learned Additional Sessions Judge, Chandigarh, without going into the merits of the revision petition, dismissed the same on 21.11.1998 by observing that the certified copy of the order of the learned Magistrate had not been produced along with the revision petition, that there was also no application seeking exemption from filing the certified copy and that even otherwise, he had no power to grant such an exemption. Aggrieved, the petitioner has approached this court under Section 482 Cr.P.C. for quashing the said order of the learned Additional Sessions Judge, Chandigarh passed on 21.11.1998 and for directing the learned Additional Sessions Judge, Chandigarh to consider the revision petition on merits. 2. The case of the petitioner is that along with the revision petition, the petitioner has filed an application (copy Annexure P-1) stating that the certified copy of the order which was obtained, could not be located due to the revocation of the office of the counsel, that the limitation for filing the revision was nearing expiry, that a photo copy of the certified copy has been annexed and, therefore, exemption from producing the certified copy of the order of the trial Court be granted. He also contends that the petitioner had also prayed that the petitioner may be granted time to place on record the certified copy of the order, but still the learned Additional Sessions Judge, Chandigarh did not consider this application and had proceeded to dismiss the revision petition, as if no such application had been filed. He also contends that the petitioner had also prayed that the petitioner may be granted time to place on record the certified copy of the order, but still the learned Additional Sessions Judge, Chandigarh did not consider this application and had proceeded to dismiss the revision petition, as if no such application had been filed. The contention of the learned Counsel for the petitioner is that the revision petition having been filed under Section 397 Cr.P.C., the Sessions Judge should have exempted the production of the certified copy at that time in view of the reasons given by the petitioner and inasmuch as Section 397 of the Cr.P.C. enabled the Sessions Court even to call for the records and examine the correctness of legality of the order passed by the trial Court. 3. On notice, the 1st respondent entered appearance through counsel and filed a reply opposing this petition alleging that the said application seeking exemption was not filed along with the Revision petition, but had been fraudulently introduced by the petitioner into the records of the trial Court. The 1st respondent has also produced into the records of this Court annexure R-1, the copy of the revision petition filed before the Sessions Court, wherein an endorsement has been made by the Superintendent of the Sessions Court, stating that no application seeking exemption from filing the certified copy has been attached. The learned Counsel for the 1st respondent also points out that the application seeking exemption is dated 20.11.1998 addressed to the Court of Mr. S.S. Lamba, Additional Sessions Judge, Chandigarh, whereas the Revision itself was ordered to be put up before the Court on 21.11.1998 only, meaning thereby that on 20.11.1998, the petitioner could not have known that the petition was coming up before Mr. S.S. Lamba, Additional Sessions Judge. This is explained by the counsel for the petitioner stating that the date was inadvertently typed on 20.11.1998. A complaint had also been given to the learned Additional Sessions Judge to enquire into the allegations that the application has been fraudulently introduced into the records of the Sessions Court subsequently. S.S. Lamba, Additional Sessions Judge. This is explained by the counsel for the petitioner stating that the date was inadvertently typed on 20.11.1998. A complaint had also been given to the learned Additional Sessions Judge to enquire into the allegations that the application has been fraudulently introduced into the records of the Sessions Court subsequently. Though these allegations have been made by the 1st respondent, at the time of the arguments of this petition before me, the learned Counsel for the 1st respondent stated that the question whether the application seeking exemption was there along with the revision petition or not, need not be gone into, since the complaint has been found to be not correct by the Sessions Court. But the learned Counsel for the 1st respondent raised objection with regard to the maintainability of this petition under Section 482 Cr.P.C. inasmuch as the Revision filed by the petitioner had been dismissed by learned Additional Sessions Judge. 4. I have heard the counsel for both the sides and perused the records on file. 5. As matter stands now, it is evident that the petitioner had filed an application seeking exemption from filing the certified copy of the order of the trial Court. The contention of the petitioner is that the certified copy of the order had even been obtained, but due to the renovation in the office of the counsel for the petitioner, it could not be located at the time when the Revision petition was filed, and that is why, the application seeking exemption and also seeking time to place on record the copy of the order was filed. The learned Counsel for the petitioner also contends that along with the present petition, he has also produced certified copy of the order of the trial Court and that the petitioner was under the impression that the limitation for filing the Revision was only 30 days, but the certified copy could not be produced along with the Revision for the reasons mentioned above, and that there was no reason for the petitioner to withhold the certified copy of the order. The learned Counsel for the petitioner, therefore, contends that the application seeking exemption should have been considered and appropriate orders should have been passed. 6. The learned Counsel for the petitioner, therefore, contends that the application seeking exemption should have been considered and appropriate orders should have been passed. 6. In the circumstances, it is evident that the learned Additional Sessions Judge had not considered the application seeking exemption and seeking time for producing the certified copy of the order on record. The learned Additional Sessions Judge has proceeded on the basis that there was no such application and had dismissed the Revision petition. 7. So far as the maintainability of this petition is concerned, the learned Counsel for the petitioner relies upon the decision of the Honble Supreme Court in Krishnan v. Krishnaveni and another, 1997(1) R.C.R. 724 in support of his contention that even though the revision petition had been dismissed by the Sessions Court, this petition under Section 482 Cr.P.C. is maintainable. The Honble Supreme Court has held that though the revision petition before the High Court under sub-section (1) of Section 397 is prohibited by sub- section (3) thereof, the inherent power of the High Court is still available under Section 482 of the Code, and as it is paramount power of continuous superintendence of the High Court under Section 482 Cr.P.C., the High Court is justified in interfering with the order leading to the miscarriage of justice and setting side the orders of the courts below. That was also a case where the Magistrate had discharged certain accused against which the respondents before the Honble Supreme Court filed a Revision before the Sessions Court, and the Sessions Court dismissed the same. On a further revision filed by the 1st respondent in the High Court, the High Court allowed the revision by setting aside the impugned order and directing the Magistrate to consider the facts on merits at the trial. It is against that order the appeal was filed before the Honble Supreme Court, and the Honble Supreme Court had dismissed the appeal by holding that the High Court had the inherent power to interfere. This decision clearly supports the contention of the learned Counsel for the petitioner. 8. It is against that order the appeal was filed before the Honble Supreme Court, and the Honble Supreme Court had dismissed the appeal by holding that the High Court had the inherent power to interfere. This decision clearly supports the contention of the learned Counsel for the petitioner. 8. The learned Counsel for the petitioner also relied upon a decision of this Court in Tayab Hussain v. Kanchan Sharma, 1997(2) R.C.R. 707 wherein this Court has held that the dismissal of the Revision petition by the Session Court does not bar a person from invoking the inherent powers of the High Court under Section 482 Cr.P.C. and that the High Court should interfere where the interests of justice call for interference. 9. As pointed out already, the learned Additional Sessions Judge had proceeded to dismiss the revision on the assumption that there was no application seeking exemption from producing the certified copy of the order. Even according to the reply filed by the 1st respondent to this petition, the certified copy of the order was ready on 21.10.1998, which the petitioner had got on 28.10.1998 and had 90 days for filing the revision. The further case of the 1st respondent is that even when the revision was rejected on 21.11.1998, the petitioner had 59 days more. Therefore, the learned Additional Sessions Judge could have considered the request of the petitioner for granting further time to produce the certified copy. 10. In these circumstances, I am of the view that the interests of justice require that the impugned order passed by the learned Additional Sessions Judge, Chandigarh on the assumption that there was no application seeking exemption, cannot be sustained. 11. Therefore, this petition is allowed. The impugned order dated 21.11.1998 passed by the learned Additional Sessions Judge, Chandigarh dismissing the revision petition is set aside. The matter is remitted back to the Sessions Court concerned. The concerned Sessions Court will take the Revision petition back on its file and consider the application seeking exemption from or further time for producing the certified copy and pass appropriate orders on the same. If he decides to allow that application he shall then consider the Revision petition and pass appropriate orders. The concerned Sessions Court will take the Revision petition back on its file and consider the application seeking exemption from or further time for producing the certified copy and pass appropriate orders on the same. If he decides to allow that application he shall then consider the Revision petition and pass appropriate orders. The certified copy of the order of the learned Magistrate (which is questioned in the Revision petition filed before the Sessions Court) which has been produced into this Court (along with this petition) shall be returned to the Counsel for the petitioner on proper acknowledgement for the purpose of production before the Sessions Court. Before returning the said document to the counsel for the petitioner, the Registry shall take photo copy of the same and retain such copy on the record of this file.