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2006 DIGILAW 695 (MP)

Subodh Shukla (Major) v. R. S. Dudee (Major)

2006-05-11

MANJUSHA P.NAMJOSHI

body2006
ORDER 1. Being aggrieved by the order arising out of order dated 17.7.2003 passed by V Additional Sessions Judge, Sagar in Criminal Revision No. 7512003 parties being Ransingh Dudee v. Subodh Shukla arising out of private Criminal Complaint No. Unregistered dated 3.1.2003 [Major Ransingh v. Subodh and another] in which the trial Court CJM, Sagar by its order dated 25.1.2003 rejected the complaint under section 203, Criminal Procedure Code this revision has been preferred under section 397 read with section 401, Criminal Procedure Code and in alternative under section 482, Criminal Procedure Code. 2. Brief facts giving rise to this application are thus. The complainant Ran Singh Dudee had one brother sepoy Hawasingh who was working in Jat Regiment and martyred on Indo-Pak border in Indo-Pak War. To create martyrdom (memorial) R.S. Dudee who was major applied to the Collector for allotment of some land. He made two applications one on 9th November and second on 14th December, 2000. The case was registered as Revenue File No. 12-A/19 (3) 2000-2001. The revisionist petitioner obtained certified copies of these applications. It was found that the contents of the applications were misleading. The revisionist sent these copies to the Court of Inquiry. Thereupon proceeding were initiated against Dudee and he was sentenced to imprisonment and presently he is in jail. 3. When the copies were sent to the Court of Inquiry Dudee claimed this against the revisionist and Rajendra Saini the Head Copyist of the Collectorate that since he had enmity and jealousy with him being of the same department he could have tampered and forged documents in conspiracy with Rajendra Saini. Therefore, he filed the private complaint under section 200, Criminal Procedure Code requesting the Court to register a case under sections 109, 120B, 420, 471 and 500, Indian Penal Code. 4. The CJM, Sagar, dismissed the complaint mainly on two grounds. Firstly that there is a bar under section 195 (1) (b) to proceed against the revisionist and secondly the Revenue Court has not found that any of its record to has be tampered and forged, therefore, Revenue Court itself did not take any suitable action. Another ground raised for dismissal of the complaint by the Court was that since the inquiry was pending before the Military authorities, the complaint was premature. 5. Another ground raised for dismissal of the complaint by the Court was that since the inquiry was pending before the Military authorities, the complaint was premature. 5. Against the order R.S. Dudee preferred revision before the V Additional Sessions Judge, Sagar under section 397, Criminal Procedure Code who in turn ordered that there was no bar under section 195 (1) (b), Criminal Procedure Code and directed the CJM, Sagar to take cognizance and rgister the case. It is argued by the petitioner that this order was passed against the revisionist without noticing him of the revision before the lower Revisional Court. 6. Now the revisionist has challenged this order. Parties heard, record perused. 7. Firstly, there was no need to summon the revisionist by the lower revisional Court. The complaint of R.S. Dudee was rejected under section 203, Criminal Procedure Code. That time the revivisionist Subodh Shukla was not summoned, therefore, when Dudee preferred the revision before the lower revisional Court, under law Subodh Shukla had no right of hearing. No audience was required to be given to him. Sometimes, Sessions Court do give notice to the opposite party in proceeding under section 398, Criminal Procedure Code against the dismissal of complaints, but it is not the requirement of law as the proviso to that section governs only those cases in which the accused, having been summoned and evidence having been recorded, is discharged. On the other hand, mere is no provision for notice when it is the dismissal of complaint under section 203, Criminal Procedure Code. In case of Thankchala Mudali v. Ponnappa Mudali [AIR 1947 Mad. 389], Kanda Sesha Reddi v. Muthyala China Pullaiah [AIR 1958 AP 595] and in case of Dhondu Bapu Gajar v. Emperor [AIR 1929 Bom. 436] it was held that when a complaint is dismissed under section 203 or section 204 (4) in the absence of any of the accused, notice to show cause might be dispensed with. It was further held that a Magistrate proceeded against a few only of a number of persons complained against and refused the complainant's application for process against the others, the refusal amounted to dismissal of the complaint under section 203, Criminal Procedure Code and so notice for action under this section might be dispensed with. It was further held that a Magistrate proceeded against a few only of a number of persons complained against and refused the complainant's application for process against the others, the refusal amounted to dismissal of the complaint under section 203, Criminal Procedure Code and so notice for action under this section might be dispensed with. In cases of Mannupsingh v. Sahadeo Sadhu [AIR 1929 Patna 230] Abdulla fan v. Totigul [AIR 1935 Pesh 14] in cases of Lilly Varghese v. E. V. Radhakrishan [1965 Ker. LT 1234] and S. Thiogorajan v. Ayyamperumal [(1983) 2 Crimes 765 (Mad)] it was held that if the accused had not appeared before the Magistrate who dismissed the complaint under section 203, Criminal Procedure Code he has no right to appear before the Sessions Judge when he orders further inquiry and no notice need, therefore, be given in such case. Thus, the objection raised by learned counsel for the petitioner regarding not giving audience to the petitioner does not sound well. 8. The next point to be considered is whether the lower revisional Court had jurisdiction to order for registration of the complaint. When a private complaint is dismissed under section 203, Criminal Procedure Code and a revision is preferred under section 397, Criminal Procedure Code the provisions of section 398, Criminal Procedure Code are made applicable. Under that provision the revisional Court has no jurisdiction to ask to register a case against all or anyone or more of the accused. As per provision of section 398 the revisional Court could have directed for further inquiry and there is no provision to direct the trial Court to register a case against the accused. 9. The third point to be considered in this case is does the complainant could adduce any evidence to prove prima facie any offence made out so that a Magistrate taking cognizance of an offence may find sufficient ground for proceeding against the accused the complainant has examined himself and his witnesses. But there is no evidence on record to prima facie prove that it was accused persons who have conspired and forged any documents to use them against the complainant Ransingh Dudee. The trial Court has rightly pointed out that the complainant could not prove that the accused had with intention to cheat the complainant forged and used the evidence anywhere against the complainant. The trial Court has rightly pointed out that the complainant could not prove that the accused had with intention to cheat the complainant forged and used the evidence anywhere against the complainant. It is also not proved that the accused forged the documents. By order dated 3.4.2003 the trial Court again stated in the order-sheet that the Revenue Court did not thought it proper to consider whether it would like to proceed against the accused for committing forgery. Thus, the complainant has failed prima facie to prove that accused conspired with the co-accused and abeted the offence of forgery, used as genuine a forged document which is known to be forged and caused defamation of the complainant. The complainant witnesses Shishram (PW 4) and Col. Shiv Pratap Singh have stated that the complainant is of good character and a well behaved person. Accordig to him he came to know that the accused forged certain documents to harass the complainant as the accused has enmity and jealousy with him. Yathendra Singh (PW 3) states that he had presented the documents Exhibit P-1 and Exhibit P-2 before the Additional Collector S.C. Arya. On reading those documents S.C. Arya asked him to make certain corrections. He made the corrections and put a comma and 's' after Indian Defence Service. Perhaps the complainant wants to suggest that it was apostrophe S ('s). He did it and resubmitted application to the Additional Collector. Remember that it was done at the instance of the complainant and not at the instance of the accused. PW 2 Dulichand Kori is petition writer. According to him at the instance of the complainant he filed application Exhibit P-5 before the Head Copyist Rajendra Saini accused No.2. He also filed affidavit Exhibit P-6. The complainant Major Ransingh has deposed several facts before the trial Court but could not make on a case that the accused persons forged documents and cheated and defamed him. The statement of Ransingh Dudee (PW 1) is based on imaginations, conjecture and not on facts. He could not prima facie prove that it was accused who conspired with Rajendra Saini and forged any document and used against him. 10. Thus, considering the totality of the facts of the case, the complainant has failed to produce any such evidence so as to enable the Court to take cognizance of any offence against the accused. He could not prima facie prove that it was accused who conspired with Rajendra Saini and forged any document and used against him. 10. Thus, considering the totality of the facts of the case, the complainant has failed to produce any such evidence so as to enable the Court to take cognizance of any offence against the accused. Therefore, the trial Court was right in dismissing the complaint against the accused. 11. In the result the revision is allowed and the order of the lower revisional Court is set aside and the order of the trial Court is restored whereby the trial Court dismissed the complaint.