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2014 DIGILAW 3156 (ALL)

Pankaj Kumar v. State of U. P. .

2014-10-15

VISHNU CHANDRA GUPTA

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JUDGMENT Vishnu Chandra Gupta, J. It is a peculiar case in which the learned Sessions Judge set aside the order, which was not under challenge and granted the relief by impugned order, which was not asked for by any of the parties. 2. Brief facts for deciding this petition, in short, are that opposite party no.2 Shiv Ratan moved an application under Section 156(3), Cr.P.C. (Annexure-3 to this petition) before the learned Magistrate. The application under Section 156(3), Cr.P.C. was disposed of vide order dated 29.11.2003 whereby the application under Section 156(3), Cr.P.C. was treated as complaint and complainant was directed to produce evidence under Section 200 and 202 Cr.P.C. Thereafter the complainant examined himself under Section 200 Cr.P.C. and also examined other witnesses, namely, Kanti Devi, Smt. Prema and Smt. Jagrani under Section 202, Cr.P.C. The statement recorded under Sections 200 and 202 Cr.P.C. were annexed as Annexure 5 to the petition. Thereafter the learned Magistrate considered the statement recorded under Sections 200 and 202 Cr.P.C. summoned the petitioners under Sections 147, 435, 323 IPC to face trial. However, learned Magistrate did not summon any of the petitioners under Section 3(1)(X) of SC/ST Act. Aggrieved with the order of not summoning the accused under Section 3(1)(X) of SC/ST Act, the complainant challenged the order dated 24.03.2014. The complainant did not challenge the order of summoning under other section of I.P.C. Learned Sessions Judge instead of allowing or rejecting the revision with regard to not summoning the petitioners under Section 3(I)(X) of SC/St Act exceeded its jurisdiction not only setting aside the order of summoning but also held that on the basis of material available on record, the offence under Section 3(I)(X) of SC/ST Act is made out and after recording the finding on fact, he passed an order setting aside the order dated 24.03.2014 summoning the accused under Sections 147, 435, 323 IPC ordered the Magistrate that he should pass an order directing the SO concerned to register the case on the basis of application under Section 156(3), Cr.P.C. and to investigate the matter. 3. Aggrieved by this order, the petitioners, who are arrayed as accused in the complainant, challenged the legality and propriety of the order passed by learned Sessions Judge. 4. 3. Aggrieved by this order, the petitioners, who are arrayed as accused in the complainant, challenged the legality and propriety of the order passed by learned Sessions Judge. 4. I have hard Murli Manohar Srivastava, learned counsel for the petitioners, learned A.G.A. for the State and Rajendra Singh Chauhan, learned counsel for the opposite party no.2. 5. It is not res integra that learned Magistrate while exercising the powers conferred under Section 156(3), Cr.P.C. may treat the application moved under Section 156(3), Cr.P.C. as a complaint as held by the Apex Court in the case of Minu Kumar and another Vs. State of Bihar and others; (2006) 4 SCC 359 . 6. It is not in dispute that the learned Magistrate exercised its discretionary jurisdiction to proceed under Chapter XV of the Cr.P.C. and record the evidence under Section 200 and 202 Cr.P.C. The complainant was not aggrieved with the discretionary order passed by the learned Magistrate to proceed under Chapter XV of the Cr.P.C. He also not challenged the order by which the present petitioners were summoned to face the trial under Sections 147, 435, 323 IPC but he challenged the order of not summoning the petitioners under Section 3(1) X of SC/ST Act. 7. In view of the aforesaid facts and circumstances of the case, I am of the view that the order passed by learned Session Judge is not sustainable and is liable to be set aside for the following reasons: (1) In this revision the scope was limited to examine whether the order passed by learned Magistrate not summoning the accused petitioners under Section 3(I)(X) of SC/ST Act was justified or not? So instead of passing the order in this light, learned Sessions Judge set aside the whole order of summoning the accused persons under Sections 147, 435, 323 IPC which is not within the competence of the learned Sessions Judge while dealing with powers conferred under Section 397 Cr.P.C. (2) The opposite party no.2 waived his right to challenge the order dated 24.03.2004 to the effect that learned Magistrate ought to have passed an order to register the case instead of treating the petition as complaint. (3) Learned Sessions Judge was of the opinion that FIR should have been lodged but he also record finding on merit regarding the sufficiency of evidence for constituting an offence while dealing with the matter pertaining to an application moved under Section 156(3), Cr.P.C. The scope of the Magistrate while dealing with the Application under Section 156(3), Cr.P.C. was limited to the extent that he must satisfy whether a cognizable offence is made out or not and need not to go into the correctness of the fact alleged in application. If necessary ingredients of a cognizable offence are made out from the allegations made in the complaint under Section 156(3), Cr.P.C., he may proceed to direct the SO concerned to lodged the first information report and to investigate. (4) The learned Sessions Judge has also erred in passing an order against the present petitioners without giving an opportunity of being heard as held by the Apex Court in the case of Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others; (2012) 10 SCC 517 . (5) While exercising the jurisdiction under Section 397, Cr.P.C., the learned Sessions Judge should not interfere in discretionary jurisdiction exercised by the subordinate court unless it was found that the discretion exercised is not based on well established judicial norms. Hence, the order impugned passed by learned Sessions Judge is liable to set aside. 8. The petition under Section 482, Cr.P.C. is allowed. Interim order, if any, shall stand vacated. 9. The learned Sessions Judge directed to register the revision on its original number and to decide the revision afresh after considering the submissions of the parties in accordance with law preferably within a period of three months from the date of communication of this order.