Abhay Kumar Tripathi vs State Of U.P. And 2 Others
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Allahabad High Court

Abhay Kumar Tripathi vs State Of U.P. And 2 Others on 23 April, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:60935
 
Court No. - 71
 

 
Case :- APPLICATION U/S 482 No. - 1462 of 2025
 

 
Applicant :- Abhay Kumar Tripathi
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Manish Gupta,Vishwa Ratna Dwivedi
 
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. This application under Section 482 Cr.P.C. has been preferred against the order dated 04.04.2024, passed by A.C.M.M.-VII, Kanpur Nagar, in Complaint Case No.1767 of 2023, Police Station- Kotwali, District- Kanpur Nagar, whereby the complaint filed by the applicant/complainant has been dismissed under Section 203 Cr.P.C. The order dated 19.07.2024, passed by learned Additional District & Sessions Judge, Court No.19, Kanpur Nagar, in Criminal Revision No.254 of 2024, is also being impugned, whereby the revision against order dated 04.04.2024 has been dismissed.

3. It has been submitted by learned counsel for the applicant that applicant has filed the complaint against opposite party nos.2 & 3 alleging that he has lended an amount of Rs.2 lakhs to the opposite party no.2 and he has promised to return the same before Deepawali but his amount was not returned back. The learned counsel submitted that a prima-facie case of breach of trust was made out but the complaint filed by applicant was dismissed vide order dated 04.04.2024 by the learned Magistrate without considering facts and position of law. Applicant has preferred a criminal revision against order dated 04.04.2024 before the Session Court but the learned Revisional Court did not grant any opportunity of hearing to the applicant and revision was dismissed in a hurried manner within a period of one month of filing of the revision. It was submitted that learned Revisional Court has also not considered the facts and position of law and revision was dismissed in an arbitrary manner vide order dated 19.07.2024. Referring to facts of the matter, it was submitted that both the impugned orders are liable to be set aside.

4. Learned A.G.A. has opposed the application and submitted that there is no material 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 04.04.2024 the complaint of applicant was dismissed by learned Magistrate under Section 203 Cr.P.C. The revision against that order has also been dismissed by the Revisional Court vide order dated 19.07.2024. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 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 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 482 Cr.P.C. but High Court should not act as a second Revisional Court under garb of exercising inherent powers. Interference in such cases can only be made when 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. It is therefore to meet the ends of justice or to prevent abuse of process that High Court is preserved with inherent powers and would be justified under such circumstance to exercise inherent powers.

11. Keeping in view the aforesaid legal position, in the instant case the main allegation of applicant / complainant is that he has lended an amount of Rs.2 lakhs to the opposite party no.2 but it was not returned back and when he demanded his money, the opposite party nos.2 & 3 have abused and threatened to kill him. Essentially, the dispute appears to be civil in nature. The complaint of applicant was dismissed by a reasoned order. The revision against that order has already been dismissed. So far this contention is concerned that applicant was not provided any opportunity of hearing by the Revisional Court, it may be observed that in the order of Revisional Court it has been mentioned that despite sufficient opportunities no one has appeared on behalf of applicant / revisionist to pursue the case and even the steps were not taken for service of notice upon the opposite party nos.2 & 3. In view these facts and circumstances, it is clear that applicant himself is responsible for his non-appearance. No patent illegality could be shown in the impugned orders. As stated above, the revision against order dated 04.04.2024 has already been dismissed and in such situation the interference under Section - 482 Cr.P.C. 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. In the instant matter, no such contingency is made out. Applying the principles set out in the judgments referred above to the case on hand, no case for invocation of powers under Section 482 Cr.P.C. is made out. The application under Section 482 Cr.P.C. lacks merit and thus liable to be dismissed.

12. The Application u/s 482 Cr.P.C. is hereby dismissed.

Order Date :- 23.4.2025

'SP'/-