Allahabad High Court
Gaurav Sharma vs State Of U.P. And 2 Others on 29 April, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:66547
Court No. - 71
Case :- APPLICATION U/S 482 No. - 2430 of 2025
Applicant :- Gaurav Sharma
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Ankit Srivastava,Ch. Dil Nisar
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. This application under Section 482 Cr.P.C. has been preferred against the order dated 06.03.2023, passed by Judicial Magistrate, First, Saharanpur, in Complaint Case No. 178 of 2021, District - Saharanpur, whereby the complaint filed by the applicant has been dismissed under Section 203 Cr.P.C. The order dated 24.05.2024, passed by learned Additional Sessions Judge, Court No.12, Saharanpur, is also being impugned, whereby the revision filed by the applicant was dismissed.
3. Learned counsel for the applicant submitted that applicant has filed an application under Section - 156(3) Cr.P.C. alleging that the opposite party no.2 Ashish Kumar has taken an amount of Rs. 5 lakhs from him. Later he has issued a cheque of Rs.1,80,000/- to the applicant but the same was dishonored. The applicant has issued a notice to the opposite party no.2 and thereafter the opposite party no.2 and 3 have assaulted him. The application under Section - 156(3) Cr.P.C. was registered as a complaint case. The applicant was examined under Section - 200 Cr.P.C and two witnesses were examined under Section - 202 Cr.P.C. but despite that said complaint was dismissed by the learned Magistrate under Section - 203 Cr.P.C. vide order dated 06.03.2023. The applicant has preferred a criminal revision against order dated 06.03.2023, which has also been dismissed by the learned Additional Sessions Judge, Court No.12, Saharanpur. Learned counsel has referred statement of complainant and of witnesses and submitted 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 there is no illegality or perversity in the impugned orders.
5. I have considered the rival submissions and perused the record.
6. Before proceeding further, it would be expedient to go through the provisions as enunciated under Sections 203 and 204 Cr.P.C., which read as under :-
Section 203 Cr.P.C.
"Dismissal of complaint- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."
Section 204 Cr.P.C.
"204. Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."
7. Thus, it is clear that as per the procedure prescribed for proceedings with regard to the complaint case, after recording the statements of the complainant and witnesses and the result of the inquiry or investigation (if any) under section 202 Cr.P.C., if the Magistrate is of the opinion that there is no sufficient ground for proceeding exist and he may dismiss the complaint. It is well settled that if a bare perusal of a complaint or the evidence led in support of it shows that essential ingredients of the offence alleged are absent or that the dispute is only a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203, Criminal Procedure Code.
8. What the Magistrate had to determine at the stage of issue of process was not the correctness of the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what was stated could be true unless the prosecution allegations were so fantastic that they could not reasonably be held to be true.
9. In S.N. Palanitkar v. State of Bihar and another, AIR 2001 SC 12960 while examining the scope of section 203 of Code of Criminal Procedure Code, the Hon'ble Apex Court in paragraphs 15, 16 and 17 has held as under :
"15. In case of a complaint under Section 200, Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and the witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground' used under Section 202 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.
16. This Court in Nirmaljit Singh Hoon v. The State of West Bengal and others, (1993)(3)SCC 753), in para 22, referring to scheme of Sections 200-203 of Cr.P.C. has explained that "The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment not sufficient ground for proceeding, he may dismiss the complaint. In Chandra Deo Singh v. Prakash Chandra Bose (1964 (1)SCR 639) where dismissal of a complaint by the Magistrate at the stage of Section 2092 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (p.653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."
17. In Smt. Nagawwa v. Veeranna Shivalingappa Kongalgi (1976(3) SCC 736) this Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the Court (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (C) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is also indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case being "where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused."
10. In the instant matter, the complaint filed by the applicant against opposite party no.2 and 3 was dismissed by the learned Magistrate vide order dated 06.03.2023. Thereafter, the applicant has preferred a criminal revision against aforesaid order dated 06.03.2023, which has also been dismissed by learned Additional Sessions Judge vide impugned order dated 24.05.2024. It is correct that availing of the remedy of the revision before the Sessions Judge under Section - 399 Cr.P.C. does not bar a person from invoking the power of the High Court under Section - 482 Cr.P.C. 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.
11. In Deepti alias Arati 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."
12. 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."
13. 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.''
14. 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.
15. Keeping in view the aforesaid legal position, in the instant matter it appears that essentially the matter relates to dishonor of cheque and the applicant has already filed a complaint under Section - 138 N.I. Act. Regarding assault only a vague allegation has been that opposite party no.2 and 3 did 'maarpeet' with applicant. As stated above, the revision against order dated 06.03.2023 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.
16. The application u/s 482 Cr.P.C. is hereby dismissed.
Order Date :- 29.4.2025
S Rawat
