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Madhya Pradesh High Court · body

2016 DIGILAW 269 (MP)

T. K. Chari v. Ramesh

2016-03-31

N.K.GUPTA

body2016
ORDER 1. Heard on I.A. No.9648/2015, an application under section 14 of Limitation Act. 2. It appears that against the impugned order dated 1.2.2011, petition under section 482 of CrPC was filed on 22.2.2011 and it was dismissed on 7.9.2015 and, therefore, applicants are entitled to get exclusion of that period while filing of the present revision. 3. Under these circumstances, application appears to be acceptable and therefore, it is accepted. The time spent by the applicants in prosecuting the petition under section 482 of CrPC shall be adjusted in filing of the present revision and if that time is adjusted then the present revision filed by the applicants is within time. 4. Accordingly I.A No. 9648/2015 is hereby allowed. 5. Heard on admission. 6. The applicants have challenged the order dated 1.2.2011 passed by the Judicial Magistrate First Class, Guna in Criminal Case No.198/2011, whereby criminal case was directed to be registered against the applicants for offence under sections 294, 323, 325, 452 of IPC. 7. Facts of the case, in short, are that the respondent No.1 has filed a criminal complaint that on 10.10.2003, the applicants entered in his house without any search warrant and they demanded a sum of Rs.10,000/-. Thereafter, he was beaten in his house and taken by the applicants at police station. He was also beaten at police station and other places. He was kept in police station for eight days without any substantial reasons. He sustained grave injuries in that assault caused by the applicants and, therefore, he has filed a criminal complaint which was registered by JMFC vide order dated 1.2.2011. 8. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that there is an objection that the revision to be filed before the Sessions Court where learned counsel for the applicants relies upon the judgment of Division Bench of this Court in the case of “State of Madhya Pradesh v. Khizar Mohammad and others” [ 1997(1) JLJ 99 = 1996 MPLJ 1007 ], in which it is held that there is concurrent jurisdiction of Sessions Court as well as High Court to entertain a revision petition and therefore, the High Court cannot refuse to entertain such petition because the application was given without knocking the doors of the Sessions Court. On the other hand, learned counsel for the respondent No. 1 relies upon the order passed by the Single Bench of this Court in the case of “Ram Naresh Upadhyaya and another v. Asha Bai Chaudhury” [ 2015(II) MPWN 78 =2015(2) MPLJ (Cri) 645], in which it is held that the applicant is required to approach to the lowest forum available for revision. However, in that order of Ram Naresh Upadhyaya (supra), the Single Bench did not consider the order passed by the Division Bench in the case of Khizar Mohammad (supra) and, therefore, the order passed by the Single Bench of this Court can not be considered as a precedent in a case. The judgment given by the Division Bench of this Court in the case of Khizar Mohammad (supra), neither can be overruled or dissented by the Single Bench of this Court. Under these circumstances, in the light of order passed in the case of Khizar Mohammad (supra), the present revision cannot be refused to be entertained. 9. Learned counsel for the applicant has invited attention of this Court that respondent No.1 was arrested for offence of Gambling and, thereafter, he tried to assault the applicants and, therefore, offence under section 332 r/w section 149 of IPC was also registered. Copy of the judgment dated 4.1.2011 passed by JMFC in Criminal Case No.606/2003 was produced to show that the respondent No.1 was arrested in the public duty and, therefore, a complaint could not be registered against the applicants. Some more documents were also filed to secure the attention of this Court that respondent No.1 jumped from the roof and, therefore, he sustained grave injuries in his left leg. A report given to the Magistrate concerned by respondent No.1 is submitted on record. However, it is to be made clear that even the applicants would have challenged the registration of complaint under section 482 of CrPC then the defence documents could be considered. The applicants have preferred a petition under section 482 of CrPC which was registered as Miscellaneous Criminal Case No.1357/2011 and the same was dismissed vide order dated 7.9.2015 and, therefore, their entire defence was already considered in that case. However, in that order liberty was given to the applicants to file a criminal revision. The jurisdiction of this Court under criminal revision is limited. However, in that order liberty was given to the applicants to file a criminal revision. The jurisdiction of this Court under criminal revision is limited. The revisionary Court is standing on the shoes of the trial Court and the trial Court has registered a criminal complaint on the basis of evidence adduced before it and, therefore, in the present revision the defence evidence adduced by the applicants cannot be considered. If evidence adduced by the respondent No.1 before the trial Court is considered then there is no reason to disbelieve the testimony of the respondent No.1. 10. Under these circumstances, it cannot be said that any illegality or perversity has been committed by the JMFC, Guna while passing the order dated 1.2.2011 and, therefore, the revisionary powers of this Court cannot be exercised in favour of the applicants. 11. Learned counsel for the applicants has also submitted that while registering the complaint, the objection of the applicants under section 197 of CrPC was not considered. However, such objection should have been raised by the applicants before the trial Court when they appeared before the trial Court. It is made clear that shelter of section 197 of CrPC is not available to the applicants/police personnel if there is no nexus between their overt act and the public duty. No police personnel is permitted to enter in the house of a person without search warrant. The police personnel is not permitted to utter any obscene words against any person or assault him. Therefore, no shelter of section 197 of CrPC is available to the applicants. 12. On the basis of aforesaid discussions, the revision filed by the applicants viz. T. K. Chari, Maan Singh Gurjar, Surendra Bhargava and Haricharan Vastri is hereby dismissed at motion stage. 13. Copy of this order be sent to the trial Court for information.