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2016 DIGILAW 2711 (ALL)

RAJKUMAR PRABHAKAR v. STATE OF U. P.

2016-08-05

PRAMOD KUMAR SRIVASTAVA

body2016
Hon'ble Pramod Kumar Srivastava, J. 1. Present revision has been preferred against the judgment dated 23.7.2016 passed by the Court of Additional Sessions Judge (F.T.C.), Mahoba in Criminal Revision no. 41/2015, by which order dated 22.5.2015 passed by C.J.M., Mahoba dismissing the complaint under section 203 CrPC was quashed and matter was remanded for fresh orders in light of observations made in the judgment of revisional court. 2. Heard learned counsel for the applicants, learned AGA and perused the records. 3. The contention of learned counsel for the applicants was that during investigation, no overt act appeared to have been committed by any person. Even in the statement of victim before police and Sub-Divisional Magistrate when victim had given statement which revealed that no offence was committed. In this case after investigation, final report was submitted. But due to protest petition, complaint case has been initiated, in which Magistrate had dismissed the complaint under section 203 CrPC twice, and both the times revisional courts had remanded the matter with certain observations. Learned counsel for the applicants further contended that if such matter is regularly remanded again and again, with factual observations, by interference in findings of facts, then on any occasion, under pressure of order of remand, any Magistrate will pass any order against applicants in light of observation made by revisional court, which will prejudice the legal rights of applicants. Therefore in interest the order should be passed by this Court to finalize the matter. 4. These arguments were refuted by learned AGA, who submitted that victim had not stated name of any accused before police and before the Magistrate, and she had not stated anything about commission of any offence, and informed that due to dissatisfaction from informant she had left her home suo motu and gone alone, so after investigation final report was submitted. But informant had filed protest petition and complaint case, over which police has no control. His further submission was that till now no offence appears to have been committed by any accused and any applicant is not accused in any case, therefore, they have no right to interfere in any proceedings. 5. But informant had filed protest petition and complaint case, over which police has no control. His further submission was that till now no offence appears to have been committed by any accused and any applicant is not accused in any case, therefore, they have no right to interfere in any proceedings. 5. This is a fact that from evidences, earlier executive Magistrate, and after investigation the Investigating Officer, and later on the trial court have found that no prima facie case of commission of offence is made out, and therefore the orders under 203 CrPC were passed. But those orders were quashed and matter was remanded with certain observations by revisional courts. The observations of lower revisional court in impugned order are more on facts with directions than on legal points. 6. In Jagannath Choudhary & ors v. Ramayan Singh & another AIR 2002 S.C. 2229 the Apex Court had held that: "Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction". "It is not an appeal wherein scruitiny of evidence is possible, neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible." 7. In Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460 the Apex Court had observed: "Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases." 8. This legal position is settled that at the time of passing the order on point of cognizance/summoning, the Magistrate has to consider facts in accordance with law and has to pass appropriate order by application of his own judicial mind. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases." 8. This legal position is settled that at the time of passing the order on point of cognizance/summoning, the Magistrate has to consider facts in accordance with law and has to pass appropriate order by application of his own judicial mind. The revision is admitted by superior court only of supervising and considering and for the purpose of satisfying itself 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 subordinate/inferior Court. Any other observation or direction, including on the point of fact or on point of manner of consideration of evidence by revisional court, under section 397 CrPC, is erroneous and illegal. Revision is not an appeal wherein scruitiny of evidence is possible like trial of appellate court. As a rule the revisional courts should generally refrain from giving findings, observations or directions on facts or on merits of the case. 9. It is also clarified that allowing of revision by lower revisional court or dismissal of revision shall not be taken as finding against findings of Magistrate Court. The order of revisional court shall not be considered as basis of giving finding of fact, because the orders in revisional jurisdiction are passed on procedural and technical reasons. Learned Magistrate is expected to appreciate the evidences adduced and also other legal points regarding production of evidences, and then he is expected to pass order on point of summoning. 10. In view of above, in present matter, the trial court is directed to appreciate the facts of the matter before it and then pass appropriate order without being influenced by any observation of revisional court on any fact of the case. With these observations, this application stands disposed of.