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Madhya Pradesh High Court · body

2005 DIGILAW 241 (MP)

Sukhnandan Ahirwar v. State of M. P.

2005-02-15

U.C.MAHESHWARI

body2005
ORDER U.C. Maheshwari, J. 1. This revision petition is directed by the applicant under sections 397, 401 and 482 of Civil Procedure Code (in Brief "Code") against the order dated 22-9-2004 passed by First Additional Sessions Judge, Sagar in S.T. No. 39/92 whereby an application under section 343(2) of Code filed by the applicant has been rejected. 2. The brief facts which are necessary for disposal of this revision are that, present applicant was working as Sub-inspector of Police at P. S. Sagar during the period of March, 1989, on 10-3-1989 an offence as Crime No. 105/89 under section 302/307 of Indian Penal Code was registered by said Police and the investigation was held by the applicant and submitted the charge-sheet against the accused of that case namely Jams Tiger @ Jomendarson @ Jogendra Singh and after concluding the trial on appreciation of evidence accused Jams Tiger was acquitted vide judgment dated 30-7-1991 by the Sessions Judge, Sagar in S. T. No. 131/89 and as per para 34 of judgment it was found that the present applicant had fabricated and produced false and forged evidence in the said case which was punishable up to the extent of death sentence and therefore a show cause notice against the present applicant for the aforesaid act under section 194 of Indian Penal Code was directed to be issued by the same judgment and for this purpose a Misc. Criminal case was also directed to be registered. 3. As directed in the above judgment, by virtue of section 340 of Code complaint was sent to the concerning Magistrate for taking cognizance under section 194 of Indian Penal Code against the applicant. After receiving the complaint concerning Magistrate committed the same to the Sessions Court where case is registered as S.T. No. 39/1992 against the applicant in connection of an offence under section 194 of Indian Penal Code. 4. Meanwhile, according to the applicant the State of Madhya Pradesh has filed an appeal against the acquittal of sole accused Jams Tiger which is still pending as Criminal Appeal No. 1072/1991 before the High Court of Madhya Pradesh at Jabalpur. 5. In view of the abovesaid pending appeal against the judgment the applicant has filed an application under section 343(2) of the Code for staying the further proceedings of Sessions Trial No. 39/1992. After considering the submissions same was dismissed by the impugned order. 5. In view of the abovesaid pending appeal against the judgment the applicant has filed an application under section 343(2) of the Code for staying the further proceedings of Sessions Trial No. 39/1992. After considering the submissions same was dismissed by the impugned order. Hence, this revision. 6. Having heard the learned counsel of the applicant, I am of the considered view that this revision petition deserves to be dismissed for following reasons: 7. Section 343 of the Code reads as under: Procedure of Magistrate taking cognizance. - (1) A Magistrate to whom a complaint is made under section 340 or section 341 shall, notwithstanding anything contained in Chapter XV, proceed as far as may be, to deal with the case as if it were instituted on a police report. (2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage; adjourn the hearing of the case until such appeal is decided. 8. Counsel of the applicant vehemently submitted that by virtue of subsection (2) of section 343 of Code further proceedings in impugned Session Trial should have been stayed by the trial Court in view of pendency of criminal appeal against the said judgment of earlier Session Trial by contending that if the said appeal is succeeded against the acquittal then the findings on which the prosecution of the applicant was directed would also be set aside and in that facts and circumstances the observations made by the Sessions Court against the present applicant in earlier Sessions Trial would also be rectified or eliminated and meanwhile if the trial is proceeded then the right of the applicant may be prejudiced, not only this but his career may also be blemished. 9. His further submission was that by virtue of section 343(2) of the Code the trial Court had a vested jurisdiction for staying the proceedings but the same has not been invoked by allowing the application of the applicant. Therefore, the impugned order is not sustainable under the law and he prays for setting aside the impugned order and staying further proceedings of S.T. No. 39/1992. 10. Therefore, the impugned order is not sustainable under the law and he prays for setting aside the impugned order and staying further proceedings of S.T. No. 39/1992. 10. In support of his contentions he placed reliance on reported case of Koppala Venkataswami v. Satrasala Lakshminarayan Chetti and Anr., 1959 Cri. LJ. 428, in which held as under : This cannot be done if the appellate Court suspends the operation of the order of a subordinate Court directing the filing of a complaint as a matter of course when an appeal is filed by a party against that order. It is necessary that the appellate Court should scrutinise the facts of the case with care and give stay only if it is convinced that there is an arguable case for the appellant. The appellate Courts also-whether it is the High Court or the first appellate Court-should try to dispose of such appeals as early as possible so that the purpose of section 476, Criminal Procedure Code is not defeated. Learned Counsel appearing for the Government Pleader suggested that, even if the appellate Court suspends the order of a subordinate Court directing the filing of a complaint, the Magistrate before whom such a complaint was filed would have to stay the trial on the ground that an appeal was pending. Section 476(3), Criminal Procedure Code reads : Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he, may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided. This sub-section does not enjoin on a Magistrate the obligation to adjourn every such trial whenever an appeal is filed. It is in his discretion to do so having regard to the facts of each case. This rule, cannot, therefore, be interpreted as to compel a Magistrate to automatically adjourn a case on the ground that an appeal was pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. It is in his discretion to do so having regard to the facts of each case. This rule, cannot, therefore, be interpreted as to compel a Magistrate to automatically adjourn a case on the ground that an appeal was pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. He should exercise his discretion with care and if he is of the opinion that the appeal is frivolous he should not adjourn the trial unless the party concerned gets a stay order from the appellate Court. We hope and trust that, in the interests of administration of justice in the State, the aforesaid procedure would, as far as possible, be followed. 11. It is apparent that Criminal Appeal No. 1072/92 was not preferred by the present applicant for setting aside the findings which were given against the applicant but the appeal was preferred by the State against the acquittal of the concerning accused. It is not the case of the applicant that he himself has filed any appeal or other proceedings against the said findings and thus the applicant has not taken any steps regarding this. Not only this but in pursuance of that findings an M.J.C. was registered whereby the complaint was sent to the Magistrate and same has been committed to the Sessions Court and that order had already been executed and some of the proceedings have also taken place, then after lapse of 14- years the trial Court cannot stay the proceedings as prayed by applicant till the impugned judgment dated 30-7-1991 is subject-matter of appeal pending before the High Court then till any order passed by the appellate Court nor any subordinate Court have any authority to stay the same. 12. In my considered view, the applicant is seeking stay of the finding of said original judgment which is a subject-matter of pending appeal before the High Court and without examine the record, facts and circumstances of the concerning case no stay could have been granted by the subordinate Court and if the applicant desired then he could have approached to the High Court in the said appeal for staying the operation of the said findings, but the applicant had not adopted the proper way and approached to Sessions Court. 13. 13. In above cited case it was held that the appellate Court has jurisdiction to pass any direction regarding stay after perusing the concerning record, in such a circumstance the trial Court was not in a position to grant such relief as prayed by the applicant. Mere on assumption and presumption as submitted by the counsel of the applicant no legal proceedings can be directed to be stayed either at the original side or at the revision stage. 14. On perusing the impugned order it is specifically mentioned that if applicant wants any stay then may approach to the High Court for the same, it does not mean that by invoking the revisional jurisdiction the High Court can grant the relief as prayed by the applicant. 15. Before parting with this case, I would like to mention here that the applicant has never approached to the appropriate forum to challenge the said findings. 16. In view of aforesaid premises I have not found any perversity or illegality or any impropriety of law which can be said error of jurisdiction committed by the trial Court in passing the impugned order. Therefore, this revision petition does not have any merits and the same is dismissed. However, applicant would be at liberty to take appropriate step under the prescribed law if the same is permissible. Revision petition is dismissed at the stage of motion hearing.