R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 889 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAFIQ AJITBHAI THEBA
Versus
STATE OF GUJARAT
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Appearance:
MS ROOPAL R PATEL(1360) for the Applicant(s) No. 1
for the Respondent(s) No. 10
MR SANJAY PRAJAPATI(3227) for the Respondent(s) No.
2,3,4,5,6,7,8
NOTICE SERVED BY DS(5) for the Respondent(s) No. 9
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/06/2021
ORAL JUDGMENT
1. Rule. Learned advocates waive service of notice of Rule on behalf of the respective parties. With the Page 1 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 consent of the parties, the matter is heard finally today.
2. This petition has been filed under Article 226 and 227 of the Constitution of India as well as Section 482 of the Code of Criminal Procedure with a prayer to peruse the legality and validity of the judgment and order dated 02.04.2018 passed by the Judicial Magistrate, First Class, Tankara and order passed by the Sessions Judge, Morbi on 01.11.2018 in Criminal Revision Application No.19/2018; with further prayer to declare the same as illegal, unjust, arbitrary, suffers from the vice of non application of mind, exceeding in jurisdiction, so as to have partly allowed the Criminal Inquiry; with the prayer to direct the learned Judicial Magistrate to issue summons under Section 365, 506(2), 161, 165A of IPC and under the provisions of Money Lending Act; further prayer is also made to direct the Judicial Magistrate to issue summons against the accused no.9 who is respondent no.10 in the present matter.
3. It is the case of the petitioner that, he is doing agricultural work for maintaining his family. In order to Page 2 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 purchase fertilizer and seeds for carrying out cultivation, the petitioner was in need of money. Therefore, three years ago he had borrowed Rs.1,00,000/- at 1% interest from respondent no.3. It is stated by the petitioner that he had repaid this amount along with interest, still however, respondent no.3 kept on demanding 10% interest from the petitioner and was threatening him. 3.1 It is contended by the petitioner that to get rid of the threat he borrowed money from respondent nos.4 and 6. It is stated that though the money was borrowed at a decided rate of 1%; however, respondent nos.2 to 9 demanded back the money at 10% interest. It is alleged by the petitioner that respondent nos.2 to 9 without any license have continued their illegal business of money lending and have extracted ten times more than the principal amount from many villagers of Mitana village. 3.2 The petitioner states that he was passing nearby Takdir Valkanizing Shop situated at Morbi Rajkot Road on his motorcycle on 20.02.2018 at 8:00 O' clock in the night. At that time, the respondent nos.2 to 9 in Page 3 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 connivance with each-other armed with baseball, pipe etc, came in Scorpio Car, started abusing him and demanded 10 times interest amount, beaten the petitioner with pipe and damaged the motorcycle, Sohilbhai owner of puncture shop is a witness to that incident. It is alleged that thereafter he was kidnapped in a Car from Mitana which stopped at about 2 kms. away from Mitana, in a forest area. However, the petitioner taking advantage of the darkness, ran away from the place towards the road and took lift in a truck, as he was under fear, he went to Ajmer Dargah.
3.3 Petitioner also states that he has recorded the threats given by the respondent no.2 on his phone. The memory card was produced before the lower Court. The petitioner states that his brother Nijubhai had sent a written complaint dated 21.02.2018 to the respondent no.10 alleging facts of illegal demand of 10% interest, and, his brother informed the police about petitioner being kidnapped and his whereabouts being not known, expressing apprehension that his brother was no more. The petitioner states that as no action was taken by Page 4 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 respondent no.10 on the complaint dated 21.02.2018 of his brother, it was sent on 01.03.2018 to the Judicial Magistrate, First Class, Morbi, D.S.P., Dist. Morbi, C.P.I. Vakner, M.L.A. Tankara, Home Minister Gandhinagar, Chief Minister Gandhinagar and requested the authorities to do the needful. The petitioner has stated that respondent no.10 had come to take the statement of his wife Ruksanaben and it is alleged that respondent no.10 threatened and pressurized his wife to withdraw the complaint.
3.4 Further stated that, in reference to complaint dated 21.02.2018 and 01.03.2018, the brother of the petitioner had requested the Hon'ble Governor vide his letter dated 14.03.2018 to do the needful and to protect them from harassment.
3.5 The petitioner states that after mustering courage, he returned from Ajmer and ultimately lodged Criminal Case being Criminal Inquiry No.2 of 2018 before the learned Judicial Magistrate, First Class, Tankara under Sections 323, 365, 427, 504, 506(2), 114, 116 and Page 5 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 165-A of the I.P.C. read with Money Lending Act against the respondent nos.2 to 10. In Criminal Inquiry No.2 of 2018, his witnesses are Sohil Hussainbhai (puncture repairer), brother - Nijubhai, wife of the petitioner - Rukshanaben. He had produced documentary evidences in the nature of the complaint dated 21.02.2018, memory card wherein recording had been made qua the threats administered by the respondent no.10, who had pressurized the uncle of the petitioner - Hussainbhai to withdraw the complaint, and even Photographs evidencing the damage caused to the Motor cycle of the petitioner.
3.6 Petitioner stated that taking into consideration the contents of the complaint, documents and electronic record in the form of memory card, learned J.M.F.C. directed to register the said complaint as Criminal Inquiry and further directed to take the verification of the petitioner vide order dated 26.03.2018 and on verification the matter was adjourned for orders. On 02.04.2018, the learned J.M.F.C. partly allowed the said Criminal Inquiry holding the prima facie case against respondent nos.2 to Page 6 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 9 under Sections 323, 427, 504 and 114 of IPC and directed to register the complaint and further to issue summons for the said offences against the respondent nos.2 to 9, returnable on 30.04.2018.
3.7 The petitioner has recorded dissatisfaction towards the order, contending that the learned lower Court has not issued summons qua Sections 365, 506(2), 161 and 165-A of the I.P.C. and under the provisions of Money Lending Act and has not directed to issue summons against the respondent no.10.
3.8 Being aggrieved by the said order dated 02.04.2018 of the J.M.F.C., Tankara, the petitioner preferred Special Criminal Application No.3184 of 2018 before this Court, which was withdrawn vide order dated 19.04.2018, wherein liberty was granted to the petitioner to file appropriate proceedings before the competent Court.
3.9 It is stated by the petitioner that consequent to the said order, the petitioner preferred Criminal Revision Page 7 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 Application No.19 of 2018 before the learned District & Sessions Judge, Morbi. After hearing the parties and going through the record of the case, learned District & Sessions Judge vide judgment and order dated 01.11.2018 rejected the Revision Application of the petitioner.
3.10 The petitioner being aggrieved and dissatisfied by the judgment and order of the courts below, has invoked writ jurisdiction of this Court and the inherent jurisdiction under Criminal Procedure Code.
4. Learned advocate Ms. Roopal R.Patel, taking this Court to the observations made by learned Judicial Magistrate, First Class in its judgment and order dated 02.04.2018 and the judgment of the learned Sessions Judge, Morbi in Criminal Revision Application No.18/2018 dated 01.11.2018, submitted that the learned Magistrate under Section 200 of Cr.P.C. took the cognizance of the offence on complaint, on examining the complainant on oath and the witnesses present and recorded the substance of the examination of the complainant and Page 8 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 witnesses. Ms. Patel submits that once cognizance of an offence has been taken, then the learned Magistrate ought to have ordered for the issuance of summons towards all the sections which had been averred and alleged by the complainant. Ms. Patel, submits that as per the provision of Section 202 of Cr.P.C., the learned Magistrate has to inquire on his own or could have given directions for investigation by the police officer for the purpose of deciding whether or not there is sufficient ground for proceeding. She submitted that the scope of inquiry is limited to ascertain the prima facie case that the learned Magistrate, in the instant case, appreciated and interpreted the evidence as if he was conducting the trial. Ms. Patel, submitted that the learned Magistrate has travelled beyond his jurisdiction by passing the order dated 02.04.2018 and has erred in partly allowing criminal inquiry rather should have allowed the complaint in toto.
5. Ms. Patel further submits that, to come to the conclusion that demand of money was made from the complainant, the learned Magistrate minutely examined Page 9 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 the case, verified the electronic records and photographs of the motorcycle and for to further prima facie conclude that the complainant had taken loan, the learned J.M.F.C. accepted the electronic record as prima facie evidence. Learned advocate submitted that from the conversation recorded, the learned Magistrate ought to have come to an opinion that the threats were given to the petitioner, and thus has committed error in interpreting the conversation by his own, by simultaneously ignoring the version of the complaint along with documents and statements of the witnesses, wherein it was categorically alleged that respondent no.2 in connivance with the other respondents, have threatened the petitioner. As such, the learned Magistrate has committed illegality in not issuing summons under Section 506 of the I.P.C. Ms. Patel contended that the learned Magistrate has also erred in not considering the complaint under Money Lending Act, the order suffers illegality since the summons were not issued under the alleged offence of Money Lending Act.
6. Ms. Patel further stated that the learned Magistrate has also gravely erred in not issuing summons Page 10 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 under Section 365 and merely on presumption has observed that the act of petitioner reaching Ajmer is doubtful and thus have erred in not considering the case of kidnapping and abduction against the respondents. The electronic version substantiate the money demand so much so the threat and the fact of kidnapping. She further submitted that the learned Magistrate ought to have verified the electronic version through F.S.L. Ms. Patel submitted that the analysis of the electronic evidence at the primary stage, is not permissible by law. Three successive complaint by the brother of the petitioner proves that respondent no.10 had not taken any steps to trace out the petitioner. Therefore, exonerating the respondent no.10 under section 161 and 165-A of the I.P.C. is totally erroneous. Ms. Patel contended that no relief ought to have been granted to respondent no.10 i.e. police officer.
7. Ms. Monali Bhatt, learned APP for the respondent State, defending the order passed by the Judicial Magistrate, First Class, Tankara and order passed by the Sessions Judge, Morbi on 01.11.2018 in Page 11 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 Criminal Revision Application No.19/2018, submitted that the learned Magistrate under the scope of Section 200 of Cr.P.C. and the provisions of Section 202, has rightly come to the conclusion of issuance of summons under Sections 323, 427, 504 and 114 of IPC against the respondent nos.1 to 8. Ms. Bhatt further submitted that the respondent no.10 is the Police Sub-inspector of Tankara Police Station, who has no role to play towards the inquiry made by the learned J.M.F.C. in connection to the private complaint filed by the petitioner. Ms. Monali Bhatt, learned APP, further submitted that the learned Magistrate has given the reasons for non issuance of the process against the respondent no.10, the police officer, and there is no illegality or infirmity in the order. The learned Judge has observed the evidence to come to prima facie satisfaction for issuance of summons against the respondent nos.1 to 9.
8. Learend APP, Ms. Bhatt, submits that the learned Sessions Judge's order dated 01.11.2018, is within the scope of revisional powers under Section 397 read with Section 401 of the Cr.P.C., and that no Page 12 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 extraordinary case has been made to show that there is any abuse of process of any Court or there is any requirement of invoking the inherent powers of this Court, as the inquiry by the Magistrate is in consonance with the provisions of law, ample opportunity was granted to the petitioner to produce his evidence for inquiry under Section 202 of the Cr.P.C. Ms. Bhatt contended that the inherent power under Section 482 of Cr.P.C. has to be exercised sparingly and the petitioner has not form any case for interference of this Court invoking the extraordinary jurisdiction under Article 226 and 227 of the Constitution of India.
9. Ms. Monali Bhatt, further submits that the verification of the complaint was noted on oath by the learned Magistrate, wherein the petitioner has not alleged of any illegal activity of the respondents under Money Lending Act. The allegation is of exorbitant demand of interest and more so no evidence has been produced in support of illegal Money Lending business. She further submitted that the petitioner in fact is at fault since he choose to hide himself at Ajmer and thus, the Page 13 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 learned Magistrate has rightly disbelieved a case of kidnapping, so as the learned Judge has heard the recorded conversation to prima facie come to the conclusion towards allegation made by the petitioner. Thus, she submits that the petition should be outrightly rejected.
10. Having heard Ms. Roopal R.Patel, learned advocate for the petitioner and Ms. Monali Bhatt, learned APP, for the respondent State, it appears from the record that in Criminal Inquiry No.2/2018, the Judicial Magistrate, First Class, Tankara, has observed that the complaint was filed against nine persons and the complainant had submitted that he had taken loan of Rs.1,00,000/- from respondent no.2 three years ago on some conditions and interest for the prescribed time period. The learned J.M.F.C. has recorded the allegations of the complaint and after verification on oath of the complainant and verification of the electronic records and even examining the photographs of the motorcycle for making a prima facie opinion, observed that, at the stage of inquiry the electronic record produced by the Page 14 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 complainant cannot be accepted as evidence, in absence of fulfillment of conditions prescribed in Section 65B of the Indian Evidence Act, however observed that for considering, whether prima facie offence is made or not, the learned Judge heard the telephonic conversation and came to the conclusion that respondent no.1 had not given any threat to the complainant. On listening the whole conversation, the learned Magistrate came to the conclusion that the respondent no.1 has demanded money from the complainant who in turn borrowed time, complainant has also said that he had paid the entire money and there is no further dues, the learned J.M.F.C. came to the conclusion that the fact of taking loan from respondent no.1 is admitted by the complainant.
10.1 The learned J.M.F.C., has heard the conversation through the primary evidence produced by the complainant. In case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors., reported in (2020) SCC 1, it has been held that certificate under Section 65-B(4) of the Evidence Act is a condition prescribed by way of electronic record, but such Page 15 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 certificate under Section 65-B(4) of Evidence Act is unnecessary, if the original document is produced, thus there is no illegality or irregularity by the learned Judge to have heard the conversation recorded in the memory card. Furthermore, it is the complainant who had produced the electronic document for perusal of the Court, in support of his complaint.
10.2 For the offence alleged under Section 365 of IPC, petitioner himself stated that he was picked up in a car near Takdir Valkanizing Shop situated at Morbi Rajkot Road and was taken about two kms. away in a forest area from Mitana, however taking advantage of the darkness, had ran away from the place towards the road and took lift in a truck, as was under fear, he went to Ajmer Dargah. The learned J.M.F.C. found the fact of reaching Ajmer Dargah as doubtful and observed that the complainant has failed to explain why he chose the place at Ajmer. The order of the learned J.M.F.C., Tankara, cannot be considered as illegal for not taking cognizance under Section 365 of the IPC. For the very simple reason that the complainant himself chose to hide at Ajmer. Page 16 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 Further the accused could not be shown to have the intention to secretly or wrongfully confine the complainant. The learned J.M.F.C. has found the case of the incident of beating, abusing and scrapping the motorcycle against the respondent nos.1 to 8 and therefore, took the cognizance under Sections 323, 427, 504 and 114 IPC.
10.3 The offence under Money Lending Act has not been prima facie made out before the learned J.M.F.C., Tankara, in the affirmation on oath. The complainant could not corroborate the allegation made in the complaint of respondents being indulged in illegal activity of Money Lending without any requisite license under the Money Lending Act. Though it was alleged that the respondents have harassed villagers of Pitana village by recovering ten times the borrowed money, no such corroborative evidence has been given by the complainant, nor by his witness. No other witness aggrieved by money lending activities of accused has been examined. The learned J.M.F.C. has rightly not taken cognizance under the Money Lending Act. Page 17 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 10.4 The allegation is against the present respondent no.10, who is P.S.I. of Tankara Police Station under Section 161 and Section 165A of the IPC. It requires to be noted that the said Section has been repealed from IPC with effect from 09.09.1988 by the Prevention of Corruption Act, 1988 (49 of 1988), hence both the sections do not find place in Chapter-IX of the IPC, which is in context of offences by or relating to public servants. Further the learned JMFC has observed that the copy of the complaint was sent by Registered Post A.D. to the Police Station. The said act of sending the complaint by Registered Post A.D. was not appreciated by the learned JMFC on the ground that in a case of kidnapping or abduction, ordinary prudent man would immediately inform the concerned Police Station instead of sending complaint by RPAD. As stated, the complaint was sent to the Police Station by RPAD and the learned Magistrate observed that the said fact made it clear that the complainant was in contact with his family members after the incident dated 20.02.2018, which corroborates with his conversation with present respondent no.10 and Page 18 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 the uncle of the complainant. The learned Judge has observed that the family members of the complainant has not cooperated with the investigating officer when the investigating officer reached the residence of the complainant. The learned JMFC found that the investigating officer has done his duty and has not found anything done by the investigating officer beyond his power, thus no offence, as alleged, was found against the investigating officer.
10.5 Against the order of the learned J.M.F.C., the petitioner had approached this Court by way of filing Special Criminal Application No.3184 of 2018, which was withdrawn on 19.04.2018. The petitioner, thereafter, approached Sessions Judge, Morbi by preferring Criminal Revision Application No.19/2018. The learned Sessions Judge within the scope of Section 397 read with Section 401 Cr.P.C., found no reason to interfere with the order of the learned J.M.F.C., while satisfying itself the correctness, legality and propriety of the findings recorded in the order.
Page 19 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021
11. Section 397(3) Cr.P.C. bars a second revision application by the same party, as inherent powers under Section 482 Cr.P.C. cannot be utilized for exercising powers, which are expressly barred by the Code. There is no inconsistency between Section 482 and section 397(2) Cr.P.C. and quashing of proceedings under the inherent jurisdiction, when cause shown, is preserved under Section 482 Cr.P.C. 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, to meet the end of justice or to prevent abuse of process, the High Court as preserved with inherent power would be justified to exercise the inherent power.
11.1 The bar contained under Section 397(3) Cr.P.C., would only debar a party from invoking the revisional powers of this Court for second time having Page 20 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 once availed such remedy before the Sessions Judge. While hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate Court and will not appreciate the evidence unless the judgment of the lower Court suffers from perversity. When the satisfaction of the Magistrate was based on the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to be interfered with.
12. The Hon'ble Apex Court in case of Madhu Limaye Vs. The State of Maharashtra, reported in AIR 1978 S.C. 47, observed that in a case, the impugned order clearly brings out a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court.
12.1 It has been been observed that the inherent power of the High Court have been followed ordinarily Page 21 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 and generally, almost invariably, barring a few exceptions viz;
(i) That the power is not to be restored to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(ii) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(iii) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
12.2 In case of Md. Ataur Rahman Vs. Nityananda Das And Ors., reported in 1979 Cri.LJ 1498, the Hon'ble Apex Court in para-4 examined the issue that, when an application in revision by a party before the Sessions Judge fails, would the same party be entitled to make an application under Article 227 of the Constitution challenging the impugned order of the Magistrate. Observation of the Supreme Court in the decision of Jagir Singh Vs. Ranbir Singh, has been enumerated in the decision of Md. Ataur Rahman Vs. Page 22 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 Nityananda Das And Ors. (supra), which reads as under:
"If the revision application to the High Court could not be maintained under the provisions of the Cr. P.C. could the order of the High Court be sustained under Article 227 of the Constitution, as now suggested by the respondent?.... The power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such a source of power when the High Court itself did not, in terms, purport to exercise any such discretionary power. In the second place the power of judicial superintendence under Article 227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of superintendence was not meant to circumvent statutory law. In the third place it was doubtful if the High Court could exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed, By the 42nd Act Clause (5) was added in Article 227 of the Constitution and it says, "Nothing in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise Page 23 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 subject to appeal or revision". Clause (5) of Article 227 introduced by the 42nd Amendment Act is a verbatim reproduction of Sub-section (2) of Section 224 of the Government of India Act, 1935 which it was held, conferred powers of administrative superintendence only and not the power of judicial superintendence. In the present case the revision application was, however, filed before the passing of the 42nd Amendment Act it was, therefore, urged by the learned Counsel for the respondent that the High Court could exercise the power of superintendence possessed by it before the 42nd Amendment. We have serious doubts. Article 227, before the 42nd Amendment, gave no right to any party. An application invoking the High Court's power of superintendence did not create any vested right in the suitor. There could, therefore, be no question of any vested right being taken away or not being taken away by the amendment. It was just a question whether the High Court possessed the power of superintendence on the date of the High Court's order. There is no dispute that it did not."
12.3 Thus, it was held that the party who files a revision under Section 397 Cr.P.C., but fails, cannot move the High Court under Article 227 of the Constitution. 12.4 The Hon'ble Apex Court in case of Sashidhar Page 24 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 Nail & Ors. Vs. Gadadhar Patel & Ors., reported in 1978 CriLJ 1316, observed that the legislative policy of not allowing a second revision before the High Court at the instance of the party who has lost in the first revision, cannot be relied upon to affect the jurisdiction of the Court under Article 227 of the Constitution of India. The reliance has been placed by the Hon'ble Court in case of Sarwan Singh And Ors. Vs. State of Punjab, reported in AIR 1976 SC 232, wherein the Hon'ble Apex Court held as under:
",,, The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
13. It is an established fact, if the revision petition is dismissed by the Sessions Court then such petition cannot be entertained again by the High Court. The question of inherent powers of the court, as referred herein above, was decided by the Hon'ble Apex Court in Page 25 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 the case of Madhu Limaye vs. State of Maharashtra (supra), it was held that the bar under Section 397(2) to entertain the revision application regarding the interlocutory orders cannot be said to be a bar under 482 Cr.P.C., as Section 482 is independent of Section 397 Cr.P.C., which gives wide ambit of powers to the High Court, when order impugned is an abuse of process of the Court of for the purpose of securing the ends of justice interference by the High Court is absolutely necessary. 13.1 In the case on hand, the learned Sessions Judge within the scope of Section 397 read with Section 401, found no reason to interfere with the order of the learned J.M.F.C. The learned Sessions Judge has found no ground to interfere with the impugned order while satisfying itself to the correctness, legality and propriety of the findings recorded in the order. This Court too, on examination of the reasons assigned by the learned J.M.F.C., does not find any reason to allow the petitioner's prayer. No extraordinary case has been made out to show that there is any abuse of process of any Court or there is Page 26 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021 R/SCR.A/889/2019 JUDGMENT DATED: 25/06/2021 any requirement of invoking the inherent powers of this Court as the inquiry made by the Magistrate is in consonance with the provisions of law.
14. In view of the above observations and discussions, the present petition is dismissed. Rule is discharged.
(GITA GOPI, J.) Pankaj Page 27 of 27 Downloaded on : Tue Sep 07 14:59:48 IST 2021