Mahesh Chand Gaur vs State Of U.P. And Another
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Allahabad High Court

Mahesh Chand Gaur vs State Of U.P. And Another on 15 April, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:54584
 
Court No. - 71
 

 
Case :- APPLICATION U/S 528 BNSS No. - 12349 of 2025
 
Applicant :- Mahesh Chand Gaur
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Mahesh Sharma,Pushpendra Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.
 

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

2. The present application under Section 528 of Bhartiya Nagarik Suraksha Sanhita (hereinafter referred as 'BNSS') has been preferred against the summoning order dated 28.07.2021, passed by Additional Chief Judicial Magistrate, Court No. 1, Bulandshahr, in Complaint Case No. 440 of 2019, under Sections 420, 467, 468, 471 I.P.C., Police Station Kotwali Nagar, District Bulandshahr. The order dated 20.03.2025, passed by learned Additional Sessions Judge/F.T.C.-I, Bulandshahr, in criminal revision no. 66 of 2023 is also being impugned.

3. It has been submitted by learned counsel for the applicant that the opposite party no. 2/complainant has moved an application under Section 156(3) Cr.P.C. making false and baseless allegations. That application was registered as a complaint case. The allegations of forgery levelled against the applicant are wholly false and there is no evidence to support the same. Earlier the applicant has lodged a first information report on 20.07.2013 against the complainant and another and in that matter police have submitted charge-sheet. Learned Magistrate has not considered the facts of the matter in correct perspective and the applicant was summoned in a routine manner. The opposite party No. 2 has lodged the impugned complaint by concealing material facts and in fact the dispute relates to management of the school and no prima facie case is made out against the applicant. The complainant was removed from the post of Manager by resolution dated 19.05.2013. Learned counsel has referred the facts of the matter and submitted that no case is made out against the applicant. The applicant has preferred a criminal revision against the summoning order dated 28.07.2021, which has also been dismissed by learned Additional Sessions Judge without considering facts and position of law. It was stated that both the impugned orders are against facts and law and thus, liable to be set aside.

4. Learned A.G.A. has opposed the application and submitted that the summoning order has already been upheld by the revisional court 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 28.07.2021 applicant has been summoned to face the trial for the offences under Sections 420, 467, 468, 471 I.P.C. The applicant has preferred a criminal revision against aforesaid order dated 28.07.2021, which has been dismissed by learned Sessions Judge, vide impugned order dated 20.03.2025. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 438/440 BNSS does not bar a person from invoking the power of the High Court under Section 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. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.

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 Cr.P.C. 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. On this 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 438/440 BNSS does not bar a person from invoking power of High Court under Section 528 BNSS but High Court can not act as a second Revisional Court under garb of exercising inherent powers. While exercising inherent powers in such a matter, the High Court can interfere only where it is satisfied that if complaint is allowed to be proceeded with, it would amount to abuse of the process of Court or that interest of justice otherwise call for quashing of the complaint.

11. Keeping in view the aforesaid legal position, in the instant case it may be seen that the opposite party No. 2/complainant has made allegations against the applicant that at the relevant time applicant was not Manager of the management committee of Munshilal Junior High School, Khurja but he has prepared forged documents by showing himself Manager of the said school and that he became Manager on the basis of forged documents and he has also signed the bills and other documents as Manager. The signatures of the applicant as Manager were never approved by the concerned authorities. The complainant has supported this version in his statement recorded under Section 200 Cr.P.C. The version of complainant was further supported by witnesses, examined under Section 202 Cr.P.C. The Magistrate has summoned the applicant considering all attending facts. Similarly the revisional court has considered the entire facts and law and dismissed the revision. No patent illegality or perversity could be shown in the impugned orders. As criminal revision against the summoning order dated 28.07.2021 has already been dismissed by the revisional court vide order dated 20.03.2025, in such situation the interference under Section 528 BNSS can only be made when it is shown that there is grave miscarriage of justice or abuse of the process of the court 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, this Court is of the view that there is no compelling circumstance or exceptional circumstance warranting invocation of section 528 BNSS by this Court. Therefore, this application under section 528 BNSS deserves to be dismissed.

12. The application under Section 528 BNSS is hereby dismissed.

Order Date :- 15.4.2025

Anand