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2009 DIGILAW 963 (ORI)

NARENDRA KUMAR GOCHHAYAT v. PRATIMA LENKA

2009-12-16

S.K.MISHRA

body2009
JUDGMENT : S.K. Mishra, J. - On consent of learned Counsel for both the parties, it is taken up for disposal at the stage of admission. 2. The Petitioners challenge the judgment passed by the learned Addl.Sessions Judge, Jagatsinghpur in Criminal Revision No. 17 of 2006 allowing the revision and directing the S.D.J.M., Jagatsinghpur to take cognizance of the offence u/s 354/34, Indian Penal Code, 1860, hereinafter referred as 'the Penal Code' and to issue process against the present Petitioners in 1 C.C. No. 78 of 2006. 3. The present opposite party initiated a complaint bearing 1 C.C. No. 78 of 2006 against these Petitioners for the alleged offences under Sections 143, 504, 354, 179/34 of the Penal Code. Her statement was recorded u/s 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). Thereafter, the learned Magistrate made an enquiry u/s 202 of the Code and as per order dated 06.09.2006, dismissed the complaint holding that the materials on record, especially in view of the fact that the parties are admittedly at dispute, no prima faice case appears to have been made out against the accused persons. Such order was challenged in Criminal Revision No. 17 of 2006. Learned Addl.Sessions Judge, Jagatsinghpur as per judgment dated 24.01.2007 allowed the revision application and ordered that, on consideration of the aforesaid materials available from the side of the complainant, as revealed from the initial statement and the statements of witnesses recorded u/s 202 of the Code, it is seen that even though there was dispute between the parties, which is a matter to be considered during the trial, the Additional Sessions Judge was of the view that there appears prima facie case against the accused persons for the offence u/s 354/34, I.P.C. and hence, he held that the order of dismissal of the complaint was not just and proper. Without directing the learned Court below or the Chief Judicial Magistrate for further enquiry, the Addl.Sessions Judge opined that the learned S.D.J.M. should take cognizance of the offence u/s 354/34, I.P.C. and issue process against accused persons Narendra, Ajaya, Deepak and Abhaya. Such judgment is assailed in this revision application. 4. The Petitioners submitted that the materials on record do not reveal a prima facie case u/s 354/34, I.P.C. in view of the fact that the parties are at dispute and a number of cases are pending. Such judgment is assailed in this revision application. 4. The Petitioners submitted that the materials on record do not reveal a prima facie case u/s 354/34, I.P.C. in view of the fact that the parties are at dispute and a number of cases are pending. He also contended that while exercising the jurisdiction u/s 397 of the Code, the learned Addl.Sessions Judge committed error on record by directing the S.D.J.M, to take cognizance instead of resorting to the provisions u/s 398 of the Code to give a direction to the Chief Judicial Magistrate or any other Magistrate working under him to make further enquiry, Learned counsel for the opposite party, on the other hand, supported the finding recorded by the learned Addl.Sessions Judge and prayed to dismiss the revision application. 5. Section 397 of the Code provides for power of the High Court and the Court of Session to call for and examine the records of any proceeding before any inferior Criminal Court, which situates within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Section 401 of the Code speaks of the High Court's powers of revision. In Sub-Section (1) it has been provided that in the case of any proceeding, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392 of the Code. Section 386 of the Code provides for powers of the appellate Court. It is provided in clause (d) that the appellate Court, if considers that there is sufficient ground for interfering, may alter or reverse any such order, which is impugned. In other words, the revisional Court while in seisin of a matter has the powers of a Court of appeal as is provided u/s 386 of the Code. It is provided in clause (d) that the appellate Court, if considers that there is sufficient ground for interfering, may alter or reverse any such order, which is impugned. In other words, the revisional Court while in seisin of a matter has the powers of a Court of appeal as is provided u/s 386 of the Code. The contention of the learned Counsel for the Petitioner is that in case where a complaint was dismissed u/s 203 of the Code, trte revisional Court has not been given the power to reverse the order and direct the cognizance taking Court to take cognizance of the offence. The learned Counsel further submitted that the only course open to the revisional Court is to resort to Section 398 of the Code. Section 398 provides the power to order for enquiry. It is provided that on examining any record u/s 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by 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 enquiry into any complaint, which has been dismissed u/s 203 or Sub-Section (4) of, Section 204 or into the case of any person accused of an offence, who has been discharged. It is provided that no Court shall make any direction under this Section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause, why such direction should not be made. 6. When there is no dispute that the revisional Court has all powers of the appellate Court, the provision u/s 398 is a supplementary provision enabling, and in certain circumstances, imposing on the Court the responsibility and obligation of directing a further enquiry when it is of the opinion that such further enquiry is required for purpose of justice. In effect, while the revisional Court is in seisin of a matter to decide whether a complaint has been correctly dismissed or not, has the limitation of looking into all the materials that are available before the learned lower Court. In effect, while the revisional Court is in seisin of a matter to decide whether a complaint has been correctly dismissed or not, has the limitation of looking into all the materials that are available before the learned lower Court. If it is brought to the notice of the learned revisional Court that additional matter should have been adduced, then in absence of the provision u/s 398 of the Code, the revisional Court had no clear jurisdiction to direct for further enquiry. So in my considered opinion, Section 398 of the Code is a supplementary provision enabling the revisional Court to direct further enquiry. It is not mandatory for the revisional Court always to resort to this provision to direct a further enquiry by the Chief Judicial Magistrate or by any other Magistrate subordinate to him. Accordingly, this contention of the learned Counsel for the Petitioners is though very attracted on the face of it, is not so, on deeper scrutiny and hence, it is not acceptable. 7. The second contention is regarding the fact that there is longstanding dispute between the parties. Such a plea definitely involves scrutiny of materials on record from the stand point of the accused, as such, it is not necessary for the Court taking cognizance to decide whether the available materials should be disbelieved because of any prior enmity between the parties. At the stage of taking cognizance, it is the duty of the Magistrate to see, whether the imaterials available before it reveal a prima facie case to take cognizance of the offence and to proceed against the accused persons. 8. In view of such settled principle of law, the order of the learned Addl.Sessions Judge does not suffer from any irregularity or illegality requiring interference of this Court u/s 397 of the Code. The Petitioners however, may take such plea at the time of framing of charge, if they chose to contest the charge in the complain case. The Criminal Revisions accordingly dismissed.