Bombay High Court
Ramsevak Pandey And Anr vs Krishnamurari Jairam Rai And Anr on 13 July, 2023
Bench: Nitin W. Sambre, R. N. Laddha
2023:BHC-AS:19644
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 824 OF 2023
WITH
INTERIM APPLICATION NO. 433 OF 2020
IN
CRIMINAL WRIT PETITION NO. 824 OF 2023
Ramsevak Pandey & Anr. ... Petitioners
Versus
Krishnamurari Jairam Rai & Anr. ... Respondents
******
Mr. Kafil A Khan a/w Sana K. Khan and Shakir Qureshi i/by KSK
Legal for the Petitioners.
Mr. Krishnakumar Mishra for the Respondent No.1.
Ms. M. H. Mhatre, APP for the Respondent No.2-State.
******
CORAM: NITIN W. SAMBRE AND
R. N. LADDHA, JJ.
DATE : 13th JULY, 2023
P.C. :-
. Heard.
2. The challenge in the present writ petition is to the order dated
20th January 2020 passed by the Sessions Judge, Thane, in Criminal
Revision No. 216 of 2019 wherein the following directions are issued
by the learned Sessions Judge in exercise of revisional powers:
"ORDER
1) Criminal Revision Application is allowed.
2) Impugned order dt. 05.08.2019 passed by the Ld. Magistrate (2nd
Court), Thane below in Cri. M.A. No. 1012/ 2019 is hereby set aside.
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3) Cri.M.A. No. 1012/2019 is allowed.
4) The matter be sent for investigation under section 156(3) of Cr.P.C.
to the concern police station.
5) Order be communicated to learned trial court for information and
further action."
3. The facts necessary for deciding the writ petition are as under:
4. The respondent no.1 approached the Police authority with a
complaint claiming that same discloses a cognizable offence. The
respondent no.2 was not convinced on the issue of disclosure of
cognizable offence, issued N.C. resulting into respondent no.1
approaching the Magistrate with a complaint. The said complaint came
to be heard by the Magistrate and the matter was posted for recording
evidence of the complainant.
5. The petitioner feeling aggrieved, questioned the said order dated
5th August 2019 directing respondent no.1 to adduce evidence under
Section 200 of the Cr.P.C. before the Revisional Court under Section
397 of the Cr.P.C.
6. The Revisional Court after hearing the parties had passed the
impugned order. The submissions of the learned counsel for the
petitioner are that the order impugned whereby the order of the
Magistrate passed on 5th August 2019 is set aside, cannot be said to be
sustainable. In revisional jurisdiction, the Revisional Court ought not to
have issued directions thereby directing sending of the matter for
investigation under Section 156(3) of the Cr.P.C. to the concerned
Police Station. So as to substantiate aforesaid contention, the counsel
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for the petitioner has drawn support from the provisions of Section 193
of the Cr.P.C. and also the law laid down by the Apex Court in the
matter of Gangula Ashok & Anr. v/s. State of Andhra Pradesh,
reported in (2000) 2 SCC 504, particularly, in paragraphs 10 and 11.
7. While countering the aforesaid submissions, the learned counsel
for the respondent no.1-complainant would urge that the Revisional
Court was justified in sending the matter for investigation under
Section 156(3) of the Cr.P.C. vide impugned order. According to him,
the Revisional Court has marked the copy of the order to the
Magistrate's Court for further action and as such, it cannot be said or
inferred that the Revisional Court has encroached upon the powers of
the Magistrate, contrary to the provisions of Section 193 of the Cr.P.C.
According to him, though the complaint preferred by the petitioner
with a prayer for order under Section 156(3) discloses a cognizable
offence, since the Magistrate has erred in not passing an order of
investigation in exercise of powers under Section 156(3), the
Revisional Court is quite justified in issuing the directions of
investigation. As such, he would urge that the present writ petition is
liable to be dismissed.
8. We have appreciated the submissions.
9. Against the order of the Magistrate, the revision preferred by the
petitioner being Revision No. 216 of 2019 is by taking recourse to the
provisions of Section 397 of the Cr.P.C. The Revision is maintainable
against an order wherein the rights of the parties are finally decided. In
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the case in hand, the Magistrate while passing the order on 5 th August
2019 has not decided the rights of the parties finally but has kept the
matter for recording evidence of the complainant. As such, the order
dated 5th August 2019 cannot be termed as a final order which could
have been questioned in revision under Section 397 of the Cr.P.C. The
order of the Magistrate thereby directing respondent no.1 to lead
evidence under Section 200 of the Cr.P.C., has to be termed as an
interlocutory order, as the complaint proceedings have remained
pending before the Magistrate in spite of said order and the rights of
the parties are not adjudicated finally.
10. In view of the express bar provided under Section 397 of the
Cr.P.C., the Revisional Court ought not to have entertained the revision
against an interlocutory order. In this backdrop, it has to be held that
the revision preferred by respondent no.1 was not maintainable.
11. Apart from above, the fact remains that the Section 193 of the
Cr.P.C. puts an embargo on the powers of the Revisional Court unless
the Revisional Court is vested with the original jurisdiction to try the
offence. As far as the offence alleged in this case is concerned, the fact
remains that the power to conduct the trial therein vests with the
Magistrate and not with the Sessions Court. As such, the Sessions
Court cannot be termed as a Court of original jurisdiction.
12. In the aforesaid legal backdrop, the orders passed by the
Sessions Court is in excess of jurisdiction and as such, on aforesaid
count also the order of the Sessions Court impugned herein is not
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sustainable. In support of the aforesaid observations, reliance can be
placed on the judgment of the Apex Court in the matter of Gangula
Ashok & Anr. (supra), particularly, paragraphs 10 and 11, which read
thus:
"10. Section 193 of the Code has to be understood in the
aforesaid backdrop. The section imposes an interdict on all
Courts of Session against taking cognizance of any offence as a
court of original jurisdiction. It can take cognizance only if "the
case has been committed to it by a Magistrate", as provided in
the Code. Two segments have been indicated in Section 193 as
exceptions to the aforesaid interdict. One is, when the Code itself
has provided differently in express language regarding taking of
cognizance, and the second is when any other law has provided
differently in express language regarding taking cognizance of
offences under such law. The word "expressly" which is employed
in Section 193 denoting those exceptions is indicative of the
legislative mandate that a Court of Session can depart from the
interdict contained in the section only if it is provided differently
in clear and unambiguous terms. In other words, unless it is
positively and specifically provided differently no Court of
Session can take cognizance of any offence directly, without the
case being committed to it by a Magistrate.
11. Neither in the Code nor in the Act is there any provision
whatsoever, not even by implication, that the specified Court of
Session (Special Court) can take cognizance of the offence under
the Act as a court of original jurisdiction without the case being
committed to it by a Magistrate. If that be so, there is no reason to
think that the charge-sheet or a complaint can straight away be
filed before such Special Court for offences under the Act. It can
be discerned from the hierarchical settings of criminal courts that
the Court of Session is given a superior and special status. Hence
we think that the legislature would have thoughtfully relieved the
Court of Session from the work of performing all the preliminary
formalities which Magistrates have to do until the case is
committed to the Court of Session."
13. In the aforesaid backdrop, the petition stands allowed.
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14. The order impugned dated 20th January 2020 stands quashed and
set aside.
15. The respondent no.1 is at liberty to give evidence before the
Magistrate as provided under Section 200 of the Cr.P.C.
16. The pending interim application stands disposed of.
[R. N. LADDHA, J.] [NITIN W. SAMBRE, J.]
