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2004 DIGILAW 1129 (BOM)

Rewa Ram v. State of M. P.

2004-09-06

S.L.KOCHAR

body2004
ORAL ORDER S.L. Kochar, J.— Heard on ad-mission. Admit. With the consent of the parties, the revision is heard finally. The applicants have filed this revision against the impugned order dated 14-7-2004 passed by Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in Cr. R. No. 75/2004, whereby allowed the revision and ordered for registration of offence against the applicants under section 506 of Indian Penal Code and section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Act”), thereby setting aside the order passed by JMFC, Maheshwar, District Khargone in Private Complaint Case No. 94/2004 on 10-3-2004. 2. The non-applicant No. 2 has filed the complaint against the applicants for the offences under sections 294, 504, 323, 506-II of Indian Penal Code and under section 3(1)(10) of the Act. The learned trial Court, after recording the statement of complainant and his witnesses under sections 200 and 202, Criminal Procedure Code and also called the police report under section 156(3) of the Criminal Procedure Code, registered the complaint only under sections 294, 323, read with section 34 of the Indian Penal Code and did not register the offence under section 3(1)(10) of the Act. Against this order dated 10-3-2004, the non-applicant No. 2 went up in revision and the learned lower revisional Court (Special Judge under the Act) has allowed the revision and directed the trial Court to register the offence under section 3(1)(10) of the Act and 506 of Indian Penal Code also. Against this order, this revision has been filed by the applicant before this Court. 3. The contention of the L.C. for applicant is that against the dismissal of complaint under section 203, Criminal Procedure Code for the offence under section 3(1)(10) of the Act and 506 of Indian Penal Code, the revisional Court at the most can remand the case back for further enquiry as per provision under section 398 of the Criminal Procedure Code. The learned revisional Court has no jurisdiction to direct for registration of a particular crime, and issuing process against the applicants. 4. The learned revisional Court has no jurisdiction to direct for registration of a particular crime, and issuing process against the applicants. 4. On the other hand, the learned counsel for non-applicant No. 2 has submitted that the learned lower revisional Court has exercised the power of revision under section 397/399 of Criminal Procedure Code and rightly directed the learned Magistrate to register the offences as mentioned above and also to take the necessary steps before committal of the case and thereafter he would be free to act under the provision of section 209 of Criminal Procedure Code. 5. Having heard the learned counsel for parties and after perusing the impugned judgment, this Court is of the view that the learned lower revisional Court has erred in directing the learned Magistrate to register the offence and take the cognizance of the offence under section 3(1)(10) of the Act and also under section 506 of the Indian Penal Code, section 398 of Criminal Procedure Code is a special provision which reads as under :— “398. On examining any record under section 397 or other-wise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub-section (4) of section 204, or into the case of any person accused of an offence who has been discharged.” 6. This Court consistently took this view in the cases of Rajaram Gupta and others v. Dharamchand and others1, G.D. Singh v. State of M.P.2, and Harun Khan and others v. Maheschand3. In the case of Harun Khan (supra), in paragraph 9, this Court has observed as under:— 9. In Rajaram’s case (supra) this Court while considering section 398, Criminal Procedure Code has held that the only order that can be made by the revising Court under section 398, Criminal Procedure Code 1973 is for further enquiry. No direction therefor in the nature of putting any impediment in the judicial discretion to be exercised by the lower Court has to be made. Any direction or instruction indicating the manner in which further enquiry is to be made and particularly whether to frame a particular charge can also not be given. No direction therefor in the nature of putting any impediment in the judicial discretion to be exercised by the lower Court has to be made. Any direction or instruction indicating the manner in which further enquiry is to be made and particularly whether to frame a particular charge can also not be given. A similar view was reiterated in case of G.D. Singh’s case (supra). 7. In view of the facts and the legal position applicable to the present case, this Court is of the view that the learned Special Judge, Mandleshwar has commit-ted illegality and acted beyond his jurisdiction in reversing the order of the Magistrate and directed him to take cognizance for the offence punishable under section 3(1)(10) of the Act and section 506 of the Indian Penal Code. This Court also does not find any substance in the submission of the L.C. for non-applicant No. 2 that the learned lower revisional Court has ample power to pass the impugned order as per revisional power under section 397 read with 399 of the Criminal Procedure Code. If this view is accepted, then, section 398 of Criminal Procedure Code would become redundant. This section is giving power only to the High Court or the Sessions Judge to remand the case back for further enquiry only on three conditions. Firstly when the complaint is dismissed under section 203, Criminal Procedure Code, secondly when the complaint is dismissed under section 203 sub-section (4) when the process was not paid within a reasonable time and thirdly when the accused has been discharged at the stage of framing of charge. If general power as prescribed under section 397 read with 399 of Criminal Procedure Code would be applicable for above mentioned three conditions, then, there was no need for the law maker to make a specific provision for remanding the case for further enquiry as per provision under section 398 of the Criminal Procedure Code. 8. This Court consistently has also taken this view in the cases of Rajaram, G.D. Singh and Harun Khan (supra). I am not finding anything, to take a divergent view and express my full agreement with the view taken by this Court in the aforesaid judgments. 9. 8. This Court consistently has also taken this view in the cases of Rajaram, G.D. Singh and Harun Khan (supra). I am not finding anything, to take a divergent view and express my full agreement with the view taken by this Court in the aforesaid judgments. 9. In the result, the order of the revisional Court is modified to the extent, by remanding the case back to the learned Magistrate for further enquiry into the matter and pass appropriate order thereafter. Revision is partly allowed in the terms as indicated above. The office is directed to send copy of this order to the Special Judge, Mandleshwar. Revision allowed. 1. 1983 MPLJ 56 . 2. 1990 MPLJ 39 . 3. 1997 (2) Crimes 301 .