Hemant Kumar vs State Of Up And 2 Others
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Allahabad High Court

Hemant Kumar vs State Of Up And 2 Others on 15 January, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:6177
 
Court No. - 73
 

 
Case :- APPLICATION U/S 482 No. - 32863 of 2024
 

 
Applicant :- Hemant Kumar
 
Opposite Party :- State Of Up And 2 Others
 
Counsel for Applicant :- Pavitra Kumar Pathak,Rajneesh Tripathi
 
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 25.10.2023, passed by learned Judicial Magistrate Court No.1, Mainpuri, in Complaint Case No.1019 of 2023 (Hemant Kumar Vs. Satyaveer and Others), Police Station- Bichhwan, District- Mainpuri, whereby the complaint filed by the applicant/complainant has been dismissed under Section 203 Cr.P.C. The order dated 06.08.2024, passed by learned District & Sessions Judge, Mainpuri, in Criminal Revision No.157 of 2023 is also being impugned, whereby the revision against order dated 25.10.2023 has been dismissed.

3. It has been submitted by learned counsel for the applicant that impugned orders are against facts and law and thus liable to be set aside. The complainant has made clear allegations that he has given an amount of Rs.5 lakhs to one Tilak Singh and out of that amount Rs.4,18,000/- were transferred into his account and Rs.82,000/- were given in cash, for purchasing of land of Tilak Singh but neither any land was transferred to him nor his amount was returned back. Said Tilak Singh has since passed away and opposite party no.2 is son and opposite party no.3 is wife of said Tilak Singh. Referring to facts of the matter, it was submitted that a prima-facie case is made out against opposite party nos.2 & 3 but the complaint of applicant was dismissed by the learned Judicial Magistrate without considering facts and law. Similarly, the Session Court has also committed error by dismissing revision of applicant.

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 25.10.2023 the complaint of applicant was dismissed and thereafter, the applicant has preferred a criminal revision against aforesaid order dated 25.10.2023, which has been dismissed by learned District & Sessions Judge, Mainpuri vide impugned order dated 06.08.2024. 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 482Cr.P.C. but High Court should 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 charges. When High Court on examination of record 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, it is the duty of High Court to have corrected it at the inception lest grave miscarriage of justice would ensue. 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. 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. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice and it has to be exercised sparingly and with circumspection.

11. Keeping in view the aforesaid legal position, in the instant case it may be seen that even as per version of complainant, the alleged amount was given by complainant to Tilak Singh and said Tilak Singh has since died. No written agreement has been shown regarding purchase of land. Learned Judicial Magistrate has considered entire facts of the matter and dismissed the complaint. The Revisional Court has also considered entire facts and law and revision was dismissed by a reasoned order. In such situation the interference under Section 482 CrPC 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, this Court is of the view that there is no compelling circumstance or exceptional circumstance warranting invocation of section 482 Cr.P.C. by this Court. Therefore, this application under section 482 Cr.P.C. deserves to be dismissed.

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

Order Date :- 15.1.2025

'SP'/-