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Sikkim High Court · body

2014 DIGILAW 91 (SIK)

Chander Pal v. Sonam Topgay Bhutia

2014-11-25

S.P.WANGDI

body2014
ORDER (ORAL) Wangdi, J. [1] This application is directed against the order of the Learned Principal District Judge, East Sikkim at Gangtok, dated 12-06-2014 in Crl. Misc. Case No.55A 2013, by which an application under Section 250 read with Section 357 of the Code of Criminal Procedure, 1973 (in short the “Cr.P.C”) filed by the Petitioner was dismissed. [2] The principle contention raised on behalf of the Petitioner is that the Learned Principal District Judge had fallen in error in dismissing the application when it ought to have released it from its file permitting the Petitioner to approach the appropriate Court having competent jurisdiction. [3] In support of his submission, Mr. Samir Kumar Sen Gupta, Learned Counsel for the Petitioner, referred to a Full Bench decision of the Delhi High Court in Mrs. Gupta Sanitary Stores vs. Union of India and Another : AIR 1985 Delhi 122 where in a similar situation the Court had returned the petition to the Petitioner for presentation to the proper Court. The relevant portion of the impugned order to which Mr. Sen Gupta draws the attention of this Court, is as under:- “17. Once the petition has been dismissed, it is obvious that there was no inquiry or Finding to make a Complaint in writing against the instant Petitioner under the said provisions of law. When the Petitioner has not been charged with any of the Sections of the IPC, 1860, the provisions of Section 250 Cr.P.C., 1973 do not apply since, neither has there been a finding by the Court of the commission of a criminal offence by the Petitioner and nor was there a discharge or an acquittal of the Petitioner under any provision of law by any stretch of the imagination. Hence, the provisions of Section 250 of the Cr.P.C, 1973, do not apply due to two fold reasons; firstly, for it being a provision which applies to a Magisterial Court and secondly, assuming that it was a correct provision of law, the Petitioner has not been discharged or acquitted for any criminal offence as required by the Section and the conditions for the application of Sec.250 Cr.P.C. as discussed hereinabove not being fulfilled.” [underlining mine] [4] From the aforesaid extracted portion of the order, it is quite evident that the Learned Principal Sessions Judge was of the view that the proceeding under Section 250 Cr.P.C. applies only to a Court of the Magistrate and not before the Session Court, apart from holding that even on the merits, the application was not maintainable as it did not fulfil the requirement of Section 250 Cr.P.C. It was on these grounds that the application was dismissed. [5] The decision referred to by the Learned Counsel for the Petitioner would clearly not apply to the facts and circumstances of the present case as it was not rendered in a case which involved proceedings under the Cr.P.C. but, under the Arbitration Act, 1940. Under Section 41(a) of the Arbitration Act, 1940, it provides that “subject to the provisions of this Act and of rules made thereunder : (a) the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to all proceedings before the Court, and to all appeals, under this Act,”. Thus as the provisions of the C.P.C. was applicable in arbitral proceedings, the petition and the documents were ordered to be returned to the Petitioner for presentation to the proper Court by invoking Order VII Rule 10 of the Code of Civil Procedure, 1908. [6] Unlike that case, the case at hand involves proceeding under the Code of Criminal Procedure, 1973. Mr. Sengupta was unable to show any provision which obligates the Court to return a complaint to the complainant which is not maintainable before it for presentation to the Court having competent jurisdiction. Concededly, in the present case, the questioned application had been erroneously filed before the Principal District Judge instead of filing it before the Magistrate and was accordingly dismissed. [7] For these reasons, I do not find any incorrectness or illegality or impropriety in the impugned order. [8] In the result, the Revision Petition is dismissed. Concededly, in the present case, the questioned application had been erroneously filed before the Principal District Judge instead of filing it before the Magistrate and was accordingly dismissed. [7] For these reasons, I do not find any incorrectness or illegality or impropriety in the impugned order. [8] In the result, the Revision Petition is dismissed. [9] No order as to costs.