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2014 DIGILAW 903 (PNJ)

JAI PARKASH v. RITU DALAL

2014-05-22

REKHA MITTAL

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JUDGMENT : Rekha Mittal, J. By way of this order, I shall dispose of aforesaid petitions as these have emerged out of same order dated 09.02.2011 passed by the Additional Sessions Judge, Bhiwani whereby the revision petition preferred by respondent Ritu Dalal against order dated 06.07.2010 passed by the Sub Divisional Judicial Magistrate, Charkhi Dadri dismissing the criminal complaint No.10-C of 2009 titled Ritu Dalal v. Surender Mohan Jain and others has been accepted, the order was set aside and the parties were directed to appear before the trial Court. For the sake of convenience, facts are taken from CRM-M-15923-2011. 2. Ritu Dalal (respondent) filed the criminal complaint against six persons for offence punishable under Sections 186, 193, 199, 294, 332, 341, 354, 380, 500, 504, 506, 508, 120-B of the Indian Penal Code (in short 'IPC'). The trial Court, after conducting preliminary inquiry wherein the complainant examined herself and witnesses namely Ranjeet Singh ASP CW1, Satish Kumar Inspector CW2, O.P. Sharma ASPO CW3 and Bhagat Ram CW4, did not find sufficient evidence to summon the accused for any of the offences alleged against them and as a result the complaint was dismissed with no order as to costs vide order dated 06.07.2010 (Annexure P4). The complainant (respondent herein) filed the revision petition against order dated 06.07.2010 before the Court of Sessions eventually decided by the Additional Sessions Judge-II, Bhiwani vide impugned order dated 09.02.2011. 3. Counsel for the petitioners contends that the impugned order dated 09.02.2011 passed by the Additional Sessions Judge, Bhiwani is in complete derogation to the provisions of law as the revisional Court cannot substitute itself as the trial Court to pass summoning order. It is further submitted that if the revisional Court finds any error or infirmity in the order passed by the trial Court dismissing the criminal complaint after recording preliminary evidence, in exercise of power under Section 203 of the Code of Criminal Procedure (in short 'the Code'), the revisional Court can, at best, remit the matter to the subordinate Court for further enquiry but it is not competent to decide the petition in the manner, the revisional Court has done in the present case. It is further submitted that in pursuance of the order impugned, the matter was not reconsidered by the trial Court and it straightway proceeded to record pre-charge evidence in regard to commission of offence punishable under Sections 294, 354 and 506 IPC. 4. Counsel for the respondent, on the contrary, contends that no fault can be found in the impugned order, particularly in the circumstances that the trial Court is already seized of the matter and the case is pending for recording of pre-charge evidence. 5. I have heard counsel for the parties and perused the case file. The primary controversy raised in the present proceedings is whether the revisional Court is competent to pass an order summoning the accused while disposing of a revision petition preferred by a complainant whose complaint has been dismissed by the trial Court after recording preliminary evidence and finding that there is no sufficient ground for proceeding against the accused. 6. Before addressing the aforesaid legal issue, it is appropriate to analyse the impugned order passed by the revisional Court. A relevant extract from the order reads as follows:- "13. It is pointed out that sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. The complainant/ revisionist had reasonable ground to believe that her objections would disadvantage her in connection with her employment including posting and promotions. The accused / respondents have created hostile working environment. The evidence brought on record shows that the department has also constituted an inquiry and it had given its finding thereby recommended transfer of Satyavir Kalkal and further recommended that at least one another lady be posted with the complainant / revisionists. However, the evidence brought on record shows that the accused/ respondents have committed the offence punishable under Sections 294, 354 and 506 of the IPC. 14. It is pointed out that the learned trial Court has appraised the evidence in the manner it is deciding the case on merits. Hence the impugned order cannot be sustained in the eyes of law and accordingly the same is set aside hereby accepting the present revision petition in the light of my above discussions. 15. Nothing in this order shall be deemed to be formal expression of opinion on the merits of the case. 16. Hence the impugned order cannot be sustained in the eyes of law and accordingly the same is set aside hereby accepting the present revision petition in the light of my above discussions. 15. Nothing in this order shall be deemed to be formal expression of opinion on the merits of the case. 16. The parties through their counsel are directed to appear before the trial Court on 14.02.2011 for conducting further proceedings in accordance with law. Copy of the judgment be sent to learned trial Court along with record of the lower court. File be consigned to the record room after due compliance." 7. It is an undisputed position of the case that in pursuance of order dated 09.02.2011, the trial Magistrate has not passed any summoning order and straightway proceed to record pre-charge evidence. Perusal of the above extract makes it evident that the revisional Court has recorded a definite finding that the evidence brought on record proves that the accused/respondents have committed offence punishable under Section 294, 354, 506 IPC. The Court further directed the parties to appear before the trial Court on 14.02.2011 for conducting further proceedings. Though the revisional Court has not said in so many words that the accused are ordered to be summoned for the aforesaid offences but it can safely be inferred from the impugned order that the revisional Court held the accused liable to be proceeded against for the aforesaid offences and the accused were also directed to appear before the trial Court. Had the revisional Court intended the trial Court to conduct further enquiry, there was no occasion for the revisional Court to direct the accused to appear before the said Court because the accused have no right to be heard at the pre-process stage. This brings the Court to the question, if the revisional Court is competent to pass an order of summoning while disposing of a revision petition against dismissal of a private complaint by the trial Court. Section 397 of the Code envisages calling for records to exercise powers of revision. A relevant extract from Section 397 of the Code is quoted hereunder:- 397. Calling for records to exercise powers of revision. Section 397 of the Code envisages calling for records to exercise powers of revision. A relevant extract from Section 397 of the Code is quoted hereunder:- 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 sub-section 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, enquiry, 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 application by the same person shall be entertained by the other of them." Section 398 of the Code deals with the power of the High Court or the Sessions Judge to order enquiry. The said provision being relevant is quoted hereinbelow:- 398. Power to order enquiry. The said provision being relevant is quoted hereinbelow:- 398. Power to order enquiry. - On examining any record under section 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 under section 203 or sub-section (4) of section 204, or into the case of any person accused of an offence who has been discharged: Provided that no Court shall make any direction under this section for enquiry 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. A plain reading of Sections 397 & 398 of the Code conjointly leaves no manner of doubt that the High Court or the Sessions Judge are empowered to examine the correctness, legality or propriety of any finding, sentence or order recorded or passed by any inferior Court. The expression 'inferior Court' has been explained in the explanation appended to Section 397 of the Code. Section 398 deals with the power of the High Court or the Sessions Judge that on examination of any record under Section 397 or otherwise to direct the Chief Judicial Magistrate or any of the Magistrates subordinate to him to make further enquiry into any complaint which has been dismissed under Section 203 or Sub Section 4 of Section 204 or into the case of any person accused of an offence who has been discharged. There is no power given to the revisional Court to pass an order that there is sufficient material on record to proceed against the accused which is vested in the Magistrate while dealing with a private complaint under Chapter XV of the Code. Section 203 in Chapter XV of the Code says that if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and shall briefly record his reasons for so doing. In the case at hand, counsel for the respondent has failed to cite any provision in law or a precedent which empowers the revisional Court to pass a summoning order. 8. In view of what has been discussion hereinabove, I find force in the contentions of the petitioners that the impugned order dated 09.02.2011 passed by the Additional Sessions Judge-II, Bhiwani can not stand the test of judicial scrutiny, thus, liable to be set aside. For the foregoing reasons, the petitions are allowed, the impugned order dated 10.02.2011 is set aside and the matter is remitted to the revisional Court for decision of the petition afresh, in accordance with law. 9. The parties through counsel are directed to appear before the court concerned on 01.07.2014.