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2011 DIGILAW 1936 (RAJ)

Hari Narain Sharma v. Bhanwar Lal

2011-09-08

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The complainant, Hari Narain Sharma, is aggrieved by the judgment dated 30.9.2000 passed by the Additional Sessions Judge No.2, Jaipur District, Jaipur, whereby the learned Judge allowed the revision petition filed by the accused non-petitioners, Bhanwar Lal and Ram Narayan, and set aside the order dated 5.7.1999 passed by the Additional Chief Judicial Magistrate No.2, Jaipur District, wherein the learned Magistrate had rejected the non-petitioners' application under Section 258 Cr.P.C. for dropping the criminal proceedings. 2. Briefly, the facts of the case are that on 3.11.1998, the petitioner lodged a FIR against the accused non-petitioners at Police Station Bagaru for offences under Sections 147, 447 and 427 IPC. In the FIR he had alleged that he is in possession of agricultural land in Khasra Nos. 165, 166, 167 and 168 situated in his village. He has two-third share in the above land. He had cultivated Gram in one and a half bigha, and Peas in another one and a half bigha. He further claimed that litigation is pending between him and the accused respondents. He further alleged that he has a stay order in his favour. However, according to him, Roop Narain, Bhairu Dutt, Om Prakash and Bhanwar Lal came in a tractor and destroyed the crops. On the basis of this information, a formal FIR was chalked out. After completing the investigation, the police submitted a charge-sheet against the accused non-petitioners for offences under Section 447 and 427 IPC. The learned trial Court took cognizance and summoned the accused non-petitioners. 3. The accused non-petitioners submitted an application under Section 258 Cr.P.C. According to them, they had bought the land in question through agreement to sell. Since the land was subsequently sold to the complainant, they had filed a civil suit for setting aside the sale-deed dated 27.4.1989 and the mutation dated 13.7.1998, which were both in favour of the complainant-petitioner, and for specific performance. Vide judgment and decree dated 7.5.1995 the Civil Court had allowed their suit ex-parte. On the basis of the said decree, on 29.7.1998, a mutation was opened in favour of the accused non-petitioners. They further claimed that they were in possession of the land. Therefore, the proceedings against them for offences under Sections 447 and 427 IPC should be dropped. 4. The petitioner filed his reply to the said application. He contended that the judgment dated 7.5.1995 was passed ex-parte against him. They further claimed that they were in possession of the land. Therefore, the proceedings against them for offences under Sections 447 and 427 IPC should be dropped. 4. The petitioner filed his reply to the said application. He contended that the judgment dated 7.5.1995 was passed ex-parte against him. As soon as he came to know that his sale-deed and the mutation have been cancelled, he immediately filed an application for setting aside the ex-parte judgment. According to him, a stay was granted in his favour on 25.8.1998. Therefore, according to him, he was in possession of the land. Moreover, he had filed a case before the Additional Divisional Commissioner challenging the mutation dated 29.8.1998 which was opened in favour of the accused non-petitioners. Vide judgment dated 3.7.1999, the said mutation was set aside and the case was remanded back for fresh inquiry about the actual physical possession of the land in dispute. 5. After hearing both the parties on the application under Section 258 Cr.P.C., vide order dated 5.7.1999, the learned Magistrate rejected the application. Since the accused non-petitioners were aggrieved by the said order, they filed a revision petition before the learned Judge. Vide order dated 30.9.2000, the learned Judge allowed the revision petition, quashed and set aside the order dated 5.7.1999, and directed that the proceedings be dropped against the accused non-petitioners. Hence, this petition before this Court. 6. Mr. Aushutosh Bhati, the learned counsel for the respondent, has raised a preliminary objection about the maintainability this petition. Relying upon the case of Thakur Ram and Ors. vs. The State of Bihar ( AIR 1966 SC 911 ) and on the case of Amichand Ahir and Anr. vs. Krishna Kumar and Anr. (1997 Cr.L.R. (Raj.) 48), the learned counsel has contended that a private party does not have the right to file a revision petition in a case initiated on a police report. In such a case, the State is deemed to be the aggrieved party. Therefore, in a case the accused is discharged, it is for the State to file a revision petition. However, in the present case, the State has not filed a revision petition. In fact, it is only the complainant, who has approached this Court. Therefore, this revision petition is not even maintainable. 7. As a counter contention, the learned counsel for the petitioner, Mr. However, in the present case, the State has not filed a revision petition. In fact, it is only the complainant, who has approached this Court. Therefore, this revision petition is not even maintainable. 7. As a counter contention, the learned counsel for the petitioner, Mr. Vimal K. Jain has submitted that the powers under Section 397 read with Section 401 Cr.P.C., are vast powers bestowed upon the High Court to supervise and to examine the correctness and legality of an order passed by the subordinate Court. In case the order were grossly illegal, it would warrant interference by this Court. Therefore, a jurisdiction has been bestowed upon this Court for correcting an error made by the subordinate Court, by which an injustice has been caused. Therefore, according to the learned counsel, it is immaterial whether the revisional power has been invoked by a private party or by the State. According to him, in the present case, the criminal proceedings have been dropped ostensibly on the ground that the dispute is a civil dispute in its nature and that there was no mens rea. Hence, according to the learned counsel, a grave injustice is being done to the complainant. Thus, this Court should interfere. Heard the learned counsel on the preliminary objection. Sections 397 and 401 Cr.P.C., are as under :- 397. Calling for records to exercise powers of revision.—(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.—All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further applica-tion by the same person shall be entertained by the other of them. 401. High Court's Powers of revisions.—(1) 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. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. A bare perusal of these provisions clearly reveals that subject to the limitations imposed by Section 397(2) and (3) and imposed by Section 401(2) and (3) Cr.P.C., the High Court has an extensive power to call for and examine a record of any proceeding pending before any inferior Court in order to satisfy itself about 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. Under Section 401, it is immaterial whether the record was called for by the High Court, or otherwise came to its knowledge by any other means. Thus, obviously, the revisional power cannot be cribbed, cabined and confined except in terms of Sessions 397(2) and (3) and in terms of Section 401(2) and (3) Cr.P.C. After all, it is a matter of jurisdiction vested in the High Court in order to examine if any sentence or order passed by the subordinate Court is correct and legally or not. 8. The issue whether a revision petition can be filed by a private party in a case instituted upon a police report has taxed the judicial imagination for the last four decades. In the case of Thakur Ram & Ors. (supra), the Hon'ble Supreme Court had opined as under : In a case which has proceeded on a police report a private party has no locus standi. No doubt, the terms of Sec. 435 (of the old Code, presently Section 397 of the new code) are very wide and it can even take up the matter suo motu. The criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. 9. The said observation of the Apex Court has been treated almost as an edict by various courts including this Court. In the cases of Brahmanand vs. State ( AIR 1970 Raj. 220 ), Ganga Ram & Anr. vs. Prabhu Dayal & Anr. 9. The said observation of the Apex Court has been treated almost as an edict by various courts including this Court. In the cases of Brahmanand vs. State ( AIR 1970 Raj. 220 ), Ganga Ram & Anr. vs. Prabhu Dayal & Anr. (1987(2) RLR 583) and Narayan Lal vs. Bhanwar Lal & Ors. (1988 Cr.L.R. (Raj.) 675), this Court had relied upon the case of Thakur Ram & Ors. (supra) and voiced the same opinion as above. 10. However, such an observation was taken to be too stark a principle to be applied universally by the Courts. Therefore, in the case of Chinnaswamy Reddy vs. State of Andhra Pradesh ( AIR 1962 SC 1788 ), the Hon'ble Supreme Court opined as under :- It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been flagrant miscarriage of justice. 11. Likewise in the case of K. Pandurangan vs. S.S.R. Velusamy ( 2003(8) SCC 625 ), the Hon'ble Supreme Court as under :- Under the provisions of the Code of Criminal Procedure, 1973, the Court has suo motu power of revision, if that be so, the question of same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of third party will not affect such power of the High Court. 12. Similar views have also been expressed by this Court in the cases of Tara Chand & Ors. vs. State of Rajasthan & Anr. (1996(2) RLR 518) and in Sita Ram Pareek vs. State of Rajasthan (2005(2) Cr.L.R. (Raj.) 940 = RLW 2005(4) Raj. 2420). 13. 12. Similar views have also been expressed by this Court in the cases of Tara Chand & Ors. vs. State of Rajasthan & Anr. (1996(2) RLR 518) and in Sita Ram Pareek vs. State of Rajasthan (2005(2) Cr.L.R. (Raj.) 940 = RLW 2005(4) Raj. 2420). 13. A bare perusal of the case law mentioned above, clearly brings out the principle that although ordinarily a private party does not have the right to invoke the revisional jurisdiction of the Court, but in exceptional cases, it does have the right to do so. Under Section 401 Cr.P.C., the revisional jurisdiction can be invoked by the High Court suo motu or upon coming to know about the grave injustice being done by the subordinate Court. Thus, for the purpose of Section 401 Cr.P.C., it is immaterial as to the means through which the High Court has come to know about the injustice being done by the subordinate Court. As pointed out in K. Pandurangan (supra), what is being invoked is the revisional jurisdiction is being invoked by the State or by the complainant. Moreover, but for the limitation imposed by Section 397(2) and (3) by the Section 401(2) and (3) Cr.P.C., on the revisional power, the power of revision is a vast one. However, the more vast the power, the more sparingly, it should be exercised. Therefore, the Court should exercise the power in cases where there is a glaring defect in the procedure, or there is manifest error on a point of law consequently leading to flagrant miscarriage of justice. 14. Moreover, it can never be forgotten that the life purpose of the court is to do substantial justice with the parties. Therefore, the High Court would certainly have the jurisdiction to look into the propriety of an order. In case, it were to conclude that a grave injustice is being done to a person, it would not permit an illegal order to continue. Merely because, the complainant has brought the existence of an illegal order to the notice of the High Court, the High Court cannot abdicate its primary duty. 15 . Since this Court does have the jurisdiction to see if there is a flagrant miscarriage of justice, the preliminary objection raised by the learned counsel for the respondent it clearly unacceptable. 16. 15 . Since this Court does have the jurisdiction to see if there is a flagrant miscarriage of justice, the preliminary objection raised by the learned counsel for the respondent it clearly unacceptable. 16. Therefore, the issue before this Court is whether the impugned judgment has led to flagrant miscarriage of justice or not? 17. Mr. Vimal Kumar Jain, the learned counsel for the petitioner, has contended that the impugned judgment is unsustainable as the learned Judge has failed to appreciate the evidence in proper perspective. The learned Judge has overlooked certain glaring facts of the case: that the judgment dated 7.5.1995 was an ex-parte judgment; that vide order dated 25.8.1998, a status quo order was granted in favour of the petitioner, that subsequently, vide judgment dated 3.7.1999, even the mutation in favour of the accused respondents was set aside by the learned Divisional Commissioner; that after a thorough investigation, the police had concluded that the Relying on these documents, the learned Judge was certainly justified in dropping the proceedings against the accused-respondents. Hence, the learned counsel has supported the impugned judgment. 18. Heard the learned counsel for the parties and perused the impugned judgment as well as the case law cited at the Bar. 19. A bare perusal of the impugned order dated 5.7.1999 clearly reveals that since the petitioner was aggrieved by the alleged trespass committed by the accused-respondents, he had lodged an FIR. After a thorough investigation, the police had concluded that the possession was that of the petitioner and not of the accused-respondents. Therefore, after investigation the police had filed a charge-sheet for offence under Section 447 IPC against the accused non-petitioners. Therefore, the issue before the trial Court was whether the accused respondents had trespassed into the land which allegedly belonged to the petitioner or not. In other words, the issue is whether the accused non-petitioners have committed the offence under Section 447 IPC or not. According to the learned trial Court, prima facie, sufficient evidence existed to show that the offence under Section 447 IPC was committed. Therefore, the trial Court had taken cognizance against the accused respondents. 20. Even if the accused respondents had the judgment dated 7.5.1995, and the mutation dated 29.8.1998 in their favour, it is a defence that the accused-respondents could have set up during the course of trial. Therefore, the trial Court had taken cognizance against the accused respondents. 20. Even if the accused respondents had the judgment dated 7.5.1995, and the mutation dated 29.8.1998 in their favour, it is a defence that the accused-respondents could have set up during the course of trial. It was too early in the day for the learned Judge to accept the said defence, especially, when the prosecution had not even marshaled out its evidence. 21. Furthermore, two reasons have been assigned by the learned Judge for quashing the order dated 5.7.1999; firstly, there is a civil dispute existing between the parties; secondly, that the accused persons did not have the required mens rea for committing the offence. To say the lest, these two grounds are absolutely unsustainable. For, according to the first reason given by the learned Judge, the learned Judge seems to believe that the same act cannot give rise to civil liability and to criminal liability simultaneously. Such a reasoning is against the settled principle of law that a single act can give rise to both civil and criminal liability. Moreover, merely because there is a civil dispute, it would not prevent the accused persons from committing a criminal act. In fact, the presence of a civil dispute may be a possible motive for the commission of the criminal act. Therefore, the learned Judge was not justified in concluding that merely because there is a civil dispute between the parties, a criminal case cannot be permitted to proceed any further. 22. Moreover, until and unless the prosecution is permitted to marshal out its evidence, and the defence is equally permitted to lay down its defence before the trial Court, it is too early to conclude that the required mens rea did not exist. After all, such a conclusion can be drawn only by the learned trial Court after weighing the evidence produced by both the sides. Therefore, the conclusion drawn by the learned Judge is rather premature. 23. Further, the learned Judge has failed to appreciate the scope and ambit of Section 258 Cr.P.C. Sectin 258 Cr.P.C. is as under:- "258. After all, such a conclusion can be drawn only by the learned trial Court after weighing the evidence produced by both the sides. Therefore, the conclusion drawn by the learned Judge is rather premature. 23. Further, the learned Judge has failed to appreciate the scope and ambit of Section 258 Cr.P.C. Sectin 258 Cr.P.C. is as under:- "258. Power to stop proceedings in certain cases.—In any, summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge. 24. A bare perusal of the provisions clearly reveals that a vast power has been bestowed upon the Magistrate to stop the proceeding either before recording any evidence or after recording the testimonies of principal witnesses. As often repeated, a vast power should be exercised sparingly. In the case of Dr. Vijay Balani vs. State of Rajasthan & Anr. (2006(1) WLC (Raj.) 506), this Court had opined as under : "Undoubted, the power to stop the proceeding at any stage and to discharge/acquit the accused is a vast power. Since, it is a vast power, it has to be used in exceptional cases or unusual circumstances attending the case. Such exceptional circumstances may arise when the evidence collected by the police or evidence collected by the Court does not actually constitute any offence alleged against the accused or when a prima facie case is not made out against the accused or the prosecution has become invalid for not following a particular formality or on account of some technical defect in the prosecution. These examples are by no means exhaustive and are merely illustrative. Since, the power vested by Section 258 Cr.P.C. would prematurely terminate the criminal proceeding, therefore, the power has to be exercised judiciously and sparingly. 25. However, the present case does not fall within any of the exceptional circumstances mentioned above. Thus, the learned Judge was unjustified in invoking his power under Section 258 Cr.P.C. 26. Since, the power vested by Section 258 Cr.P.C. would prematurely terminate the criminal proceeding, therefore, the power has to be exercised judiciously and sparingly. 25. However, the present case does not fall within any of the exceptional circumstances mentioned above. Thus, the learned Judge was unjustified in invoking his power under Section 258 Cr.P.C. 26. For the reasons stated above, this Court allows this petition, quashed and sets aside the order dated 30.9.2000, and upholds the order dated 5.7.1999 passed by the learned Magistrate.