Dr. Sharad Kumar Gupta vs State Of U.P. And 6 Others
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Allahabad High Court

Dr. Sharad Kumar Gupta vs State Of U.P. And 6 Others on 5 May, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:71284
 
Court No. - 71
 

 
Case :- APPLICATION U/S 528 BNSS No. - 4701 of 2025
 

 
Applicant :- Dr. Sharad Kumar Gupta
 
Opposite Party :- State Of U.P. And 6 Others
 
Counsel for Applicant :- Uma Nath Pandey
 
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 528 BNSS has been preferred against the order dated 22.05.2023, passed by the Additional Chief Judicial Magistrate, Court No.1, Muzaffarnagar, in Complaint Case No. 9053/9 of 2022 (Dr. Sharad Kumar Gupta Vs. Sanjay Gupta and Others), Police Station - Nai Mandi, District - Muzaffarnagar, whereby the complaint filed by the applicant/complainant has been dismissed under Section - 203 Cr.P.C. The order dated 05.12.2024, passed by learned Additional Sessions Judge, Court No.1, Muzaffarnagar, is also being impugned, whereby the revision against order dated 22.05.2023 was dismissed.

3. It is submitted by learned counsel for the applicant that applicant is husband of opposite party no.7. Applicant has lodged the impugned complaint against opposite party no.2 to 7 alleging that on 25.03.2022 at about 03:30 AM, the said opposite parties trespassed into his house, did abusing and assaulted the complainant and his son and they have forcibly snatched Rs. 11,000/- from complainant and also took away an amount of Rs. 90,000/- from almirah. The applicant has supported the said version in his statement recorded under Section ? 200 Cr.P.C. Three witnesses of the same locality were examined under Section ? 202 Cr.P.C. and the version of complaint was further supported by C.C.T.V. footage. Despite all these facts and evidence, the impugned complaint was dismissed by the learned Magistrate under Section ? 203 Cr.P.C. vide order dated 22.05.2023. It is further submitted that applicant has preferred a criminal revision against order dated 22.05.2023 but the revision has also been dismissed by the Session Court without considering facts and position of law. It was submitted that the evidence produced by the applicant under Section - 203 Cr.P.C. has been discarded without any valid reason. Learned counsel has referred statement of complainant and of witnesses and submitted that a prima facie case is made out against opposite party no.2 to 7 and thus, both the impugned orders are liable to be set aside.

4. Learned counsel for the opposite party No.2 to 7 has opposed the application and submitted that the opposite party no.7, who is wife of the applicant, was harassed by the applicant. She has lodged a first information report under Section - 498-A I.P.C. and Section ? 3/4 D.P. Act against applicant. One complaint was also filed for offence under Section ? 420 I.P.C. The impugned complaint has been lodged by the applicant as a counter blast to the said cases. The applicant has not sustained any injury. Referring to facts of the matter, it was submitted that allegations made by applicant are inherently improbable and impugned complaint was lodged as a counter blast. It was 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 the instant matter, it would be pertinent to mention that the complaint filed by the applicant against opposite party no.2 to 7 was dismissed by the learned Magistrate vide order dated 22.05.2023. Thereafter, the applicant has preferred a criminal revision against aforesaid order dated 22.05.2023, which has also been dismissed by learned Additional Sessions Judge vide impugned order dated 05.12.2024. 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 - 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.

10. 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."

11. 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."

12. 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.''

13. 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 - 528 BNSS 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.

14. Keeping in view the aforesaid legal position, in the instant matter perusal of record shows that applicant is husband of opposite party no.7 and it appears that there was matrimonial dispute between them. In that regard, the opposite party no.7 has lodged a first information report against applicant. In the alleged incident, the applicant has not sustained any injury. The allegations of robbery levelled against the opposite parties are quite improbable and suffer from absurdity. Learned Magistrate has considered the facts of the matter and complaint was dismissed by a reasoned order dated 22.05.2023. As stated above, the revision against order dated 22.05.2023 has already been dismissed and in such situation the interference under Section - 528 BNSS 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 528 BNSS is made out. The application under Section - 528 BNSS lacks merit and thus liable to be dismissed.

15. The application u/s - 528 BNSS is hereby dismissed.

Order Date :- 5.5.2025

S Rawat