Obaid vs State Of U.P. And Another
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Allahabad High Court

Obaid vs State Of U.P. And Another on 19 February, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:23772
 
Court No. - 73
 

 
Case :- APPLICATION U/S 482 No. - 26253 of 2024
 

 
Applicant :- Obaid
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Aqeel Ahmad,Zafar Abbas
 
Counsel for Opposite Party :- G.A.,Jitendra Yadav
 

 
Hon'ble Raj Beer Singh,J.
 

1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. None has appeared on behalf of the opposite party no.2/complainant.

2. This application under Section 482 Cr.P.C. has been preferred against the order dated 02.02.2024, passed by learned Additional Chief Judicial Magistrate, Court No. 11, Azamgarh, in Complaint Case No. 5148 of 2023 (Munni Bano Vs. Mohd. Uzair and Others), Police Station - Kotwali Phoolpur, District - Azamgarh. The order dated 18.07.2024, passed by learned Sessions Judge, Azamgarh, in Criminal Revision No. 179 of 2024 (Mohd. Arif and Others Vs. State of U.P. and Another), is also being impugned, whereby the revision against order dated 02.02.2024, has been dismissed.

3. It is submitted by learned counsel for applicant that applicant is innocent and no prima facie case is made out against applicant. It was submitted that on 23.08.2021, one Uzair Ahmad has lodged non-cognizable report against Mahfooz, Shakib, Shah Alam and Mohammad regarding an incident dated 23.08.2021 and after that the opposite party no.2 has made an application under Section - 156 (3) Cr.P.C. on 01.09.2021, as a counter blast to the said case. That application was registered as a complaint. The injured has sustained merely simple injuries. Referring to facts of the matter, it was submitted that the allegations made in the impugned complaint are wholly false and that impugned proceedings are counter blast and malicious. Learned Magistrate has committed error by summoning the applicant and similarly learned Revisional Court has also not considered facts and position of law in correct perspective and dismissed the revision.

4. Learned A.G.A. has opposed the application and submitted that in view of allegations made in the complaint and statement of complainant recorded under Section - 200 Cr.P.C. and statement of witnesses recorded under Section - 202 Cr.P.C., a prima-facie case is made out against applicant. It is further submitted that revision against summoning order has already been dismissed and in such circumstances, interference under Section - 482 Cr.P.C. can be made only in exceptional circumstances.

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

6. At the outset, it may be mentioned that by impugned order dated 02.02.2024, the applicant was summoned for offences under Section - 323, 452, 504, 506, 392 I.P.C. The applicant has preferred a criminal revision against aforesaid order dated 02.02.2024, which has been dismissed by learned Sessions Judge, Azamgarh vide impugned order dated 18.07.2024. 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.

7. 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."

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. However, 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.

11. In the instant matter, the complainant / opposite party no.2 has made allegations that on 23.08.2021 applicant and co-accused persons came at the door of her house and they have assaulted her as well as her son and grand son and they have also snatched Rs. 2,000/- for the pocket of her son. The son of complainant has also supported the said version in his statement recorded under Section - 202 Cr.P.C. In injury report of complainant, five injuries have been shown on body of complainant. From aforesaid facts, it is apparent that both the parties have sustained injuries in the alleged incident dated 23.08.2021. The non-cognizable report was lodged from the side of applicant and complainant has lodged impugned complaint. In view of aforesaid facts and circumstances, it cannot be said that no prima facie case is made out against applicant. As stated above, the revision against summoning order 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. Hence, the prayer as sought above is hereby refused.

12. However, keeping in view the facts of the matter, it is directed that in case applicant appears / surrenders before the Trial Court concerned within a period of three weeks from today and applies for bail, his bail applications shall be considered and decided expeditiously in accordance with settled law. For a period of three weeks from today or till the applicant appears / surrenders before the court below, whichever is earlier, no coercive action shall be taken against the applicant in the aforesaid case.

13. The application under Section 482 Cr.P.C. is disposed of in above terms.

Order Date :- 19.2.2025

S Rawat