Mirza Faizan Beg vs State Of U.P. And 5 Others
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Allahabad High Court

Mirza Faizan Beg vs State Of U.P. And 5 Others on 10 April, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:52605
 
Court No. - 71
 

 
Case :- APPLICATION U/S 528 BNSS No. - 11867 of 2025
 

 
Applicant :- Mirza Faizan Beg
 
Opposite Party :- State Of U.P. And 5 Others
 
Counsel for Applicant :- Alok Kumar Rai
 
Counsel for Opposite Party :- G.A.,Ilma Naz,Mohammad Irshad Khan,Mohammed Iftekhar
 

 
Hon'ble Raj Beer Singh,J.
 

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been preferred against order dated 28.08.2024, passed by Additional Civil Judge (S.D.)/A.C.J.M., Court No.15, Deoria in Criminal Misc. Application No.1799 of 2024 (Mirza Faizan Beg Vs. Mirza Seraj Beg and Others), Police Station- Rudrapur, District- Deoria, whereby the application field by applicant under Section 175(3) BNSS has been registered as a complaint case. The order dated 11.02.2025, passed by learned Sessions Judge, Deoria in Criminal Revision No.124 of 2024 is also being impugned, whereby the revision against order dated 28.08.2024 has been dismissed.

3. It has been submitted by learned counsel for the applicant that the applicant has filed an application under Section 175(3) Cr.P.C. against opposite party nos.2 to 6, making several allegations. There is specific allegation that the opposite party nos.2 to 6 have prepared a forged Will deed of his grand father Mirza Gaffar Beg and the said Will was used in order to grab the property of the applicant. The application filed by applicant discloses commission of cognizable offence and thus the investigation by police was necessary but the application filed by applicant has been registered as a complaint case. It is further submitted that applicant has preferred a revision against order dated 28.08.2024 but the same has also been dismissed in an arbitrary manner. Referring to facts of the matter, it was submitted that both the impugned orders are against facts and law and thus liable to be set aside..

4. Learned counsel for the opposite party nos.2 to 6 has opposed the application and submitted that there is property related dispute between the parties and they have lodged several cases against each other. A partition case is also pending between the parties. It was submitted that dispute between the parties is civil in nature and no cognizable offence is made out and that there is no illegality or perversity in the impugned orders.

5. I have considered the rival submissions and perused the record.

6. At the outset it may be mentioned that by impugned order dated 28.08.2024, the application of applicant was registered as a complaint case and thereafter, the applicant has preferred a criminal revision against aforesaid order dated 28.08.2024, which has been dismissed by learned Sessions Judge vide impugned order dated 11.02.2025. It is correct that availing of the remedy of the revision before the Sessions Judge does not bar a person from invoking the power of the High Court under Section 482 CrPC/528 BNSS but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers.

7. In Deepti aliasArati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, the Apex Court held 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. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, the Court held:

"3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."

8. Similarly, in the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon'ble Supreme Court held that-

" .... 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. Onthis short ground itself, the impugned order of the High Court can be set aside."

9. In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Court held as follows:-

"In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. 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. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, 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 ensue. It is, therefore, to meet the 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. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.''

10. Thus, it is clear that availing of remedy of revision before Sessions Judge under section 399 Cr.P.C. does not bar a person from invoking power of High Court under Section 482Cr.P.C. but High Court should not act as a second Revisional Court under garb of exercising inherent powers. In such cases the High Court can invoke inherent powers only when on examination of record it finds that there is grave miscarriage of justice or abuse of process of the Court or the required statutory procedure has not been followed with or there is failure of justice.

11. In the instant matter, perusal of records shows that both the parties are members of one and same family and there is partition related dispute between them. The applicant has filed an application under Section 175(3) Cr.P.C. against opposite party nos.2 to 6, seeking investigation by the police, which was registered by learned Magistrate as a complaint case. It is well settled that while dealing with application under Section 156(3) Cr.P.C./175(3) BNSS, Magistrate is required to apply its mind to find out whether the first information sought to be lodged by the applicant had any substance or not. If the allegations made in the application under section 156(3) Cr.P.C./175(3) BNSS prima-facie appear to be without any substance, then in such case the Magistrate can refuse to direct registration of the FIR and its investigation by the police, even if the application contains the allegations of commission of a cognizable offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where prima facie cognizable offence is disclosed from the averments made in the application under section 156 (3) Cr.P.C./175(3) BNSS in appropriate case according to facts and nature of the offences alleged to have been committed, the Magistrate can decline to direct investigation and in such cases the application under section 156(3) Cr.P.C./175(3) BNSS can be treated as complaint, as held by the Division Bench in the case of Sukhwasi vs. State of U.P. 2007 (59) ACC 739. In the instant matter, the application the application filed by applicant under Section 175(3) Cr.P.C. was registered by the learned Magistrate as a complaint case vide order dated 28.08.2024 by considering facts and position of law. As stated above, revision against that order has already been dismissed vide order dated 11.02.2025 and in such situation the interference under Section 528 BNSS can only be made in case when 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. Applying the principles set out in the judgments referred above to the case on hand, no case for invocation of powers under Section 528 BNSS is made out. The application under Section 528 BNSS lacks merit and thus liable to be dismissed.

12. Accordingly, the application under Section 528 BNSS is hereby dismissed.

Order Date :- 10.4.2025

'SP'/-