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2017 DIGILAW 813 (ORI)

Gadadhar Mahalik v. State of Orissa

2017-07-31

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. None appears on behalf of the petitioners. The petitioners in this application under section 482 of the Code of Criminal Procedure, 1973 have challenged the impugned judgment and order dated 10.01.2005 passed by the learned Addl. Sessions Judge, Bhadrak in Criminal Revision No.81 of 2004 in dismissing the revision petition filed by the petitioners challenging the legality and correctness of the order dated 18.01.2004 passed by the learned J.M.F.C., Bhadrak in G.R. Case No.03 of 2001. 2. It appears that on the basis of a written report submitted before the officer in charge, Bhadrak Rural Police Station, the case was registered and after completion of investigation, charge sheet was submitted against six accused persons under sections 294/342/506/34 of the Indian Penal Code. During course of trial, the informant as well as four other charge sheet witnesses deposed against the petitioners and therefore, the prosecution filed a petition under section 319 of Cr.P.C. for impleading the petitioners as accused in the case. 3. The learned Trial Court after perusing the first information report, the statements of the witnesses found prima facie case against the petitioners to have committed the crime and accordingly, passed order for summoning the petitioners to face the trial along with the chargesheeted accused persons. When the order was challenged before the learned Revisional Court, the learned Revisional Court has been pleased to hold that on examination of the evidence of the informant, averments in the first information report and deposition of P.Ws. 2 to 5, it is noticed that all the witnesses uniformly deposed implicating the petitioners in the matter of commission of the offences as alleged against the accused persons and since from the evidence of available on record, the petitioners cannot escape without facing a trial, therefore, it was held that the Trial Court has correctly passed the impugned order. 4. In the case of Dharampal & Ors. Vs. Smt. Ramshri & Ors. reported in 1993 Criminal Law Journal 1049, Hon’ble Supreme Court held as follows:- ".....Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of respondent 1. It is now well settled that the inherent powers under section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of respondent 1. On this short ground itself, the impugned order of the High Court can be set aside." 5. In the case of Deepti alias Arati Rai -Vrs.-Akhil Rai & Ors. reported in (1995) 5 Supreme Court Cases 751, a similar view was taken by the Hon’ble Supreme Court and it was observed as follows:- "...It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code..." 6. In case of Krishnan Vs. Krishnaveni reported in (1997) 13 Orissa Criminal Reports (SC) 41, it is held that the object of section 397(3) of Cr.P.C. is to put a bar on simultaneous revisional applications to the High Court and the Court of Session so as to prevent unnecessary delay and multiplicity of proceedings. It is further held that ordinarily, when revision has been barred by section 397(3) of the Code, a person accused/complainant cannot be allowed to take recourse to the revision to the High Court under section 397(1) or under inherent powers of the High Court under section 482 of the Code since it may amount to circumvention of the provisions of section 397(3) or section 397(2) of the Code. However, it is held that when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is further held to meet ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397(1) read with section 401 of the Code. 7. In the case of Rajathi Vs. C. Ganesan reported in 1999 Criminal Law Journal 3668, it is held that the power under section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilized as a substitute for second revision. Ordinarily, when a revision has been barred under section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provisions of law were not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional Court. 8. In the case of Shakuntala Devi and Ors. Vs. Chamru Mahto and Anr. reported in A.I.R. 2009 S.C. 2075, it is held as follows:- “17.....It is well settled that the object of the introduction of sub-section (3) in section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge was not completely closed and in special cases the bar under section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under section 482, was not subject to the prohibition under sub-section (3) of Section 397 of the Code, and was capable of being invoked in appropriate cases.” 9. On going through the impugned judgment passed by the learned Addl. In other words, the power of the High Court to entertain a petition under section 482, was not subject to the prohibition under sub-section (3) of Section 397 of the Code, and was capable of being invoked in appropriate cases.” 9. On going through the impugned judgment passed by the learned Addl. Sessions Judge, Bhadrak and the averments made in the application under section 482 of Cr.P.C., I am of the view that the learned Revisional Court is quite justified in passing the impugned judgment and thereby upholding the order passed by the learned Magistrate in directing the petitioners to be impleaded as accused. There is no grave miscarriage of justice or abuse of process of the Court and therefore, when the petitioners have already availed the revisional jurisdiction of the Court of Session, I am not inclined to invoke the inherent power under section 482 of Cr.P.C. to interfere with the same. Accordingly, CRLMC application being devoid of merits stands dismissed.