Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 793 (RAJ)

Banshi Lal v. State of Rajasthan

2001-05-07

H.R.PANWAR

body2001
Judgment H.R. Panwar, J.-This Miscellaneous Petition under Section 482, Cr.P.C. is directed against the order dated 14-2-2001 passed by the learned Additional Sessions Judge, No. 1, Hanumangarh whereby he dismissed the Criminal Revision Petition No. 5/200 1 filed againt the order of the learned Judicial Magistrate, First Class, Tibi dated 8-11-2000 whereby the learned trial Court framed the charges against the petitioner for the offence under Sections 420, 467 and 471, IPC. 2. Brief facts which are necessary to dispose of the present petition, are that complainant Mohan Dass alias Mohanlal s/o Shrl Vadhumal Sindhi r/o Mehsana (Gujarat) filed a private complaint on 16-8-94 before the learned Judicial Magistrate, Tibi stating therein that agricultural land bearing Chaks Nos. 1, 2, 3 and 4 SBN and Chaks Nos. 1 and 3 KHR is owned by his father Vadhumal. It was alleged that Vadhu Mai expired on 10-11-65 but the accused-petitioner forged a General Power of Attorney dated 13-7-8 1 much after the death of father of the complainant. This report was forwarded to the S.H.O Police Station, Tibi for investigation under Section 156(3), Cr.P.C. After investigation, the police filed a challan against the petitioner in the Court of learned Judicial Magistrate. Tibi, who took cognizance of the offences stated above and vide order dated 8-11-2000, the learned trial Court framed the charges against the accused-petitioner for the aforesaid offences and fixed the case for recording the prosecution evidence on 15-12-2000. Aggrieved by the order of the learned trial Court, the present petitioner tiled a revision petition before the learned Additional Sessions Judge, No. 1 Hanumangarh praying therein for discharge of the petitioner for the aforesaid offences. The learned revisional Court vide order dated 14-2-2001 dismissed the revision petition. 3. Aggrieved by the order of the learned revisional Court dated 14-2-200 1, the petitioner filed this Misc. Petition under Section 482, Cr.P.C. 4. I haveheard learned counsel for the petitioner and learned Public Prosecutor and perused the order impugned. 5. Undisputedly, the petitioner has availed the remedy of filing the revision petition before the learned Additional Sessions Judge, No. 1 Hanumangarh. Sub-section (3) of Section 397, Cr.P.C. reads thus :-"397. Calling for records to exercise of Powers of revision :-(1).............. (2)............... I haveheard learned counsel for the petitioner and learned Public Prosecutor and perused the order impugned. 5. Undisputedly, the petitioner has availed the remedy of filing the revision petition before the learned Additional Sessions Judge, No. 1 Hanumangarh. Sub-section (3) of Section 397, Cr.P.C. reads thus :-"397. Calling for records to exercise of Powers of revision :-(1).............. (2)............... (3) 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." .6. In Dharampal v. Smt. Ramshri, 1993 CriLJ 1049, their Lordships of the Supreme Court observed thus (Para 4): .-"The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second revision application at the instance of the 1st respondent. Admittedly, the 1st respondent had preferred a Criminal Application being Cr. R. No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. 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 Section 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 1st respondent. On this short ground itself , the impugned order of theHigh Court can be set aside." .7. Similarly in Deepti alias Arati Rai v. Akhil Rai 1995 (5) SCC 751 , their Lordships of the Hon’ble Supreme .Court observed as under :-"The High Court also should have taken care to verify the record before accepting the concession made by the learned Government Advocate. It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code." 8. It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code." 8. Thus, it is settled law that the High Court should not act as second revisional Court in the garb of exercising inherent powers under Section 482, Cr.P.C. In the instant case, the petitioner has challenged the order of framing charge vide impugned order passed by the learned first revisional Court affirming the order of framing charge passed by the learned trial Court. Section 240, Cr.P.C. reads thus : 240. Framing of Charge :- .(1) If , upon such consideration, examination, if any and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. .(2) The charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. 9. The learned trial Court by elaborate reasoned order prima facie formed the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and Which, in his opinion, could be adequately punished by him, he has framed in writing a charge against the accused and posted the matter for recording evidence of the prosecution witnesses. The learned revisional Court also considered the materials available on record and was in agreement with the order of the learned trial Court framing charge against the petitioner although on perusal of record, the learned revisional Court came to the conclusion that in addition to the charges framed by the learned trial Court, prima facie, offence under Section 120-B, IPC was also made out against the petitioner and accordingly the revision filed by the petitioner was dismissed vide the order impugned. InUmar Abdul Shakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau 1999 Cri LR (SC) 499 : (1999 CriLJ 3972 ) their Lordships of the Hon’ble Supreme Court observed as under (Para 15 of CriLJ) : It is well settled that at the stage of framing charge, the Court is not expected to go deep into the probation value of the materials on record. If on the basis of materials on record, the Court could come to the conclusion that the accused would have committed the offence, the Court is obliged to frame the charge and proceed to the trial. 10. In State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 : (1996 CriLJ 2448), the Hon’ble Supreme Court has held thus (Para 32 of CriLJ) :If on the basis of materials on record a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the prosecution has to be accepted as true at that stage. 11. In Kanti Bhadra Shahv. State of West Bengal 2000 Cri LR (SC) 173 : (2000 CriLJ 746), the Hon’ble Supreme Court observed as under (Para 10 of CriLJ) :It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is not such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offenee which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused. 12. In such a situation he is only required to frame a charge in writing against the accused. 12. In view of the facts and circumstances of the present case as discussed hereinabove, I find that there is ample material before the learned trial Court to form an opinion that there is ground for presuming that the accused has committed an offence to which he is competent to try and in his opinion could be adequately punished by him and as such, the order framing charge cannot be said to result in miscarriage of justice or abuse of process of the Court. I find no error in the orders of both the Courts below. Moreso, the second revision is barred by the provisions of Section 397(3), Cr.P.C. 13. Inview of the aforesaid discussion, I do not find any substance in this petition and same is devibd of any merit. Accordingly, this petition Jails and is hereby dismissed.