Allahabad High Court
Mohd. Said vs State Of U.P. Thru. Secy. Home ... on 17 January, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
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Court No. - 27
Case :- APPLICATION U/S 482 No. - 391 of 2023
Applicant :- Mohd. Said
Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. Lko. And Another
Counsel for Applicant :- Vijay Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, Sri Aniruddha Kumar Singh, learned A.G.A.-1 appearing for the State and perused the record.
Instant application has been filed with prayer for quashing of the impugned order dated 03.11.2022 passed by Session Judge, Hardoi in Criminal Revision No.96 of 2022 and order dated 09.12.2022 passed by Civil Judge (S.D.)/F.T.C., Hardoi in Misc. Case No.2407 of 2021, under Section 156(3) Cr.P.C., Police Station - Sandila, District - Hardio.
Learned counsel appearing for applicant submits that the revisional court has exercised his jurisdiction while passing the impugned order dated 03.11.2022. In support of his contention, he has drawn attention that the revisional court has allowed the revision and set aside the order dated 18.02.2022 passed by Civil Judge (S.D.)/F.T.C, Hardoi in Misc. Case No.2407 of 2021 and directed the court below to pass appropriate order for registration of the FIR 'without being influenced by its earlier order'.
Referring the aforesaid extract of the order, he submits that since the revisional court could have directed the court below to consider the matter afresh in accordance with law but in place of the direction, the specific order has been passed for registration of the first information report. He submits that in view of the aforesaid order, the court below has not applied its mind and thus the matter has itself been finalized at the level of revisional court which is not permissible under law.
In support of his contention, learned counsel appearing for the applicant has also placed reliance on a judgment which was rendered in Criminal Appeal Nos.90-93 of 2022, Joseph Stephen and others versus Santhanasamy and others and has referred paragraph 11 of the aforesaid judgement.
"11. Now so far as the power to be exercised by the High Court under sub-section (5) of Section 401, Cr.P.C., namely, the High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C. Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly."
Referring the aforesaid judgment, he submits that Hon'ble Apex Court has held that the revisional court while remanding the matter back, cannot pass a final order, which influences the mind of the trial court. He submits that the case of the present applicant is squarely covered with the ratio of the judgment in Joseph Stephen and others (supra) and thus, his submission is that the order passed by the revisional court dated 03.11.2022 assails illegality and perversity and is liable to be set aside.
On the other hand, learned counsel appearing for the State has vehemently opposed the contention aforesaid and submits that the detailed order has been passed by the revisional court while considering the findings of the trial court and further added that the order dated 03.11.2022 does not indicate that any influence has been warranted and therefore, the instant application is liable to be dismissed.
Considering the submissions of the learned counsel for the parties and after perusal of record, it is evident from the impugned order itself that the revisional court directed the court below to pass order for registration of the FIR. Since an application under Section 156(3) of the Cr.P.C. was instituted by the opposite party no.2 and that too was rejected and thereafter the opposite party no.2 approached the revisional court wherein the impugned order was passed. This court has notice the fact that on an application under Section 156(3) of the Cr.P.C. the Magistrate has option either to direct for lodging of FIR or to treat the same as a complaint case. Since the revisional court itself has directed for passing order for registration of the FIR and thus the court below has no opportunity to apply its mind. This Court has further noticed the fact that the issue has been settled by the Apex Court in case of Joseph Stephen and others (supra) and the same is very clear that revisional court while deciding the issue, if the same is remitting back, that cannot be decided at his own level and same has to be left open for the court below to be decided afresh. It has further been held that in case, it is being decided by the revisional court, no place would be left as of opportunity of applying the mind by the court below.
In view of the aforesaid submissions and law laid down by the Apex Court, the order dated 03.11.2022 assails illegality and thus, is hereby set aside.
In view of the aforesaid observations, the instant application is hereby allowed and the matter is remanded back to the revisional court to decide the matter afresh.
Consequence to be followed.
Order Date :- 17.1.2023 / KR
