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Madhya Pradesh High Court · body

2009 DIGILAW 198 (MP)

Ajay Kumar v. Vijay Kumar

2009-02-10

S.R.WAGHMARE

body2009
JUDGMENT 1. This revision has been filed by petitioner Ajay Kumar S/o Nathulal being aggrieved by order dated 3.2.2004 passed by the 13th A.S.J. Indore in Criminal Revision No. 349/03 allowing the revision of respondents whereas it is important to note that another revision filed by the present petitioner Ajay Kumar bearing No. 442/02 was also decided by the same order and hence, initially the petitioner had filed an application under section 482 of the CrPC, but the same was converted into criminal revision under section 397 of the CrPC by order of this Court on 24.6.2005. 2. Be that as it may, since the revision has travelled a long route having been filed in the year 2004, it is taken up for final hearing on the ground that the petitioner has impugned only the order passed in criminal revision No. 349/03 filed by his brothers-respondents. 3. Brief facts of the prosecution case are that complainant Ajay Kumar had moved a complaint against both his brothers Vijay Kumar and Nirbhay Kumar for offences under sections 468 and 420 of the IPC, since the accused had initially entered into a compromise regarding the division of residential accommodation by allotting 1/3 of the said house to petitioner Ajay Kumar. Compromise was dated 18.3.2001. It was prepared and consisted of 12 pages, which was to be produced in the Court. However, it was presented only on 9.8.2001 and on the said date, the complainant was not present in the Court and alleged that page Nos. 1 to 12 of the compromise deed had been changed along with map that was appended with the compromise deed and with an intention to cause loss to the complainant, in place of his 1/3 share was converted to 1/9 share in writing in the allegedly forged compromise deed and on the basis of the said allegedly forged compromise deed, a decree was obtained. On learning about the same, the complainant filed an application for setting aside the decree and looking to the criminal nature of the offence, also filed a complaint for offence under section 468 and 420 of the IPC. On learning about the same, the complainant filed an application for setting aside the decree and looking to the criminal nature of the offence, also filed a complaint for offence under section 468 and 420 of the IPC. The trial Court, considering the documents found, prima facie case made out for offence under section 420 of the IPC, however, discharged the accused from offence under section 468 of the IPC and being aggrieved, all the three brothers filed a revision before the 13th ASJ, Indore. The ASJ, Indore dismissed the revision of the present petitioner Ajay Kumar allowing the petition of his brothers and acquitted them from offence under section 420 of the IPC and hence, the present revision by complainant Ajay Kumar. 4. Counsel of the petitioner has stated that both the Courts below had failed to consider that once the Magistrate was satisfied that prima facie there was a case against the respondents and the trial Court had registered an offence under section 420 of the IPC and directed registering of the offence, then the Revisional Court had erred in discharging the accused from the said offence and dismissing the complaint. Once, the Investigating Agency has been set into motion under section 204 of the CrPC, then such order ought not to have been reviewed by the Revisional Court in revision filed by the brothers. 5. Counsel places his reliance on the judgment passed by the Learned Single Judge in the matter of Trichinopoly Ramaswami Ardhanani and others v. Kripa Shankar Bhargava [ 1991 JLJ 365 = 1991 MPLJ 597 ] and Adalat Prasad v. Rooplal Jindal and others [2005 (I) MPWN 40 = 2004 (4) MPLJ 1] stating that since the Magistrate had already issued process, it is not open for the accused to invoke section 203 of the CrPC as review of the order is not contemplated and remedy lies in invoking section 482 of the CrPC. 6. As already mentioned in the matter of Adalat Prasad (supra), counsel stated that the Revisional Court ought to have dismissed the revision filed by the respondents brothers on this ground alone; where instead the Learned Revisional Court dismissed the revision filed by the complainant. 6. As already mentioned in the matter of Adalat Prasad (supra), counsel stated that the Revisional Court ought to have dismissed the revision filed by the respondents brothers on this ground alone; where instead the Learned Revisional Court dismissed the revision filed by the complainant. The counsel averred that if the Magistrate was satisfied that prima facie case was made out against the brothers under section 420 of the IPC, then the impugned order acquitting the respondents was absolutely contrary to the provisions of law and the Learned Judge ought not to have interfered in revision. 7. Drawing my attention to para 8 of the Revisional Court's judgment in the matter of Adalat Prasad (supra), Counsel pointed out that it was held that section 204 of the CrPC mandates that once the proceedings before the Magistrate commences upon taking cognizance and issuance of summons to the accused and when the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. It was further held that the need to try the accused arises only when there was an allegation in the complaint that the accused has committed the crime, the Magistrate need not hear the accused if he is satisfied with sufficient ground for proceedings with the complaint since obviously, this is only a preliminary stage; and the stage of hearing of the accused would only arise at the subsequent stage provided in the latter provisions of the Code. It is a matter of judicial discretion of the Magistrate. It can be varied by the Magistrate and recalled also as it was an interim order. However, Counsel urged that the Revisional Court could not have set aside the order of the Magistrate. Relying on the Trichinopoly Ramaswami Ardhanani and others (supra) Counsel stated that the Learned Single Judge has observed that once the Magistrate acting under section 200 of the CrPC is satisfied himself about the allegations made in the complaint and evidence adduced in that behalf and the materials produced prima facie issues proceedings against persons in such cases; at this stage, the accused has no role to play and therefore, no interference ordinarily is called for in judicial discretion exercised either under section 482 of the CrPC or under section 397/401 of the CrPC, until and unless a glaring defect in the order impugned is demonstrated. 8. 8. Counsel alleged that the Revisional Court merely on the ground that the deed of compromise was not required to be signed on each and every page by the respondents and merely because they did not contain the signatures, held that it could not be held that the compromise deed was a false document and had discharged the accused from offence under section 420 of the IPC. 9. Counsel contended that it was for the satisfaction of the Magistrate to come to a conclusion, whether the offence was made out or not. Prima facie it had appeared to the Magistrate that offence under section 420 of the IPC was made out and finding that a case of forgery could not be made out under section 468 of the IPC, the Magistrate had already discharged the accused from the said offence. Moreover, the Magistrate had exercised his discretion and only because of this fact stating that the revision of the complainant against this discharge for offence under section 468 of the IPC was also dismissed by the impugned order and which was contrary to the facts of the case. 10. However, since the second revision is barred under section 397 of the CrPC, Counsel stated that he was not urging the same point in this revision. Counsel stated that apparently, the order passed by the Revisional Court was contrary to the provisions of law and he ought not to interfere in the order passed by Additional Chief Judicial Magistrate, who had already taken cognizance of the offence under section 420 of the IPC against the respondents, prayed for setting aside the order impugned. 11. Although none appeared on behalf of the respondents, the dispute being between three brothers, this Court had made an attempt at reconciliation and compromise to be worked out between the brothers but it apparently seems to have failed. 12. Considering the entire controversy in the light of Adalat Prasad (supra), I find that the impugned order deserves to be set aside. The Additional Chief Judicial Magistrate having taken cognizance, it was not within the jurisdiction of the Revisional Court to have assessed the probative value of the materials before the trial Court. The mens-rea was there or not has to be decided by the trial Court and not by the Revisional Court, which has clearly transgressed its jurisdiction. 13. The Additional Chief Judicial Magistrate having taken cognizance, it was not within the jurisdiction of the Revisional Court to have assessed the probative value of the materials before the trial Court. The mens-rea was there or not has to be decided by the trial Court and not by the Revisional Court, which has clearly transgressed its jurisdiction. 13. The impugned order is thus, set aside and that of the Additional Chief Judicial Magistrate restored. However, it is made clear that the respondents shall be granted full opportunity of hearing and granted bail in accordance with law and they shall not be arrested without granting the said opportunity by the trial Court. 14. With these observation, the revision is allowed.