Darshan Kumar vs State
1996 Latest Caselaw 99 Del

JUDGMENT

Usha Mehra, J.

(1) This Revision petition is directed against the order passed by the Additional Sessions Judge, dated 22nd May, 1995, thereby dropping the charge framed by the Metropolitan Magistrate under Sections 420/120-B against the accused persons.

(2) The impugned order has been challenged, inter alia, on the ground that the Addl. Sessions Judge, without the consent of the petitioners on the basis of counsel's statement could not have dropped the charges and thus disposed of the Revision petition.

(3) To appreciate the challenge made by the petitioner the facts are important and necessary. Brief facts are that the complaint was lodged by Smt.Kusum respondent No.3 herein against the petitioners and one Sh.Chaman Lal. Petitioner No.1 got married with respondent No.2. It was her case that she was thrown out from the matrimonial home on 3rd March,1987, by respondent No.2. Complainant/ respondent No.3 is the sister- in-law (Jethani) of petitioner No.1. Petitioner No.1 alleges that after having been beaten and thrown out from the matrimonial home, relations between the parties became stained and, therefore, to harass the petitioner respondent No.3 lodged the complaint against her and others including Chaman Lal. Respondent No.3 in her complaint alleged that on 20th January, 1989, petitioners alongwith Chaman Lal came to the residence of the complainant to invite her and her father-in-law and sons on the marriage of petitioner No.1's younger brother Prakash Chand. After greetings the petitioner induced the complainant to get her gold ornaments prepared from petitioner No.l's brother and father. Complainant also wanted to get jewellery prepared because her daughter was to get married. Since the complainant was in need of money and intended to get prepared two sets of gold ornaments, she agreed and handed over 22 tolas of gold in the shape of two gold bars to petitioners 1 to 3 and accused Chaman Lal. It is further the case of prosecution that petitioners herein alongwith Chaman Lal represented that out of 22 tolas of gold bars they would prepare two gold ornament sets weighing about ten tolas and for the balance gold they would pay her the market price. But neither the gold ornaments, nor the gold bars nor any money has been returned by the petitioners inspite of the repeated reminders given by the complainant. When the petitioners and Chaman Lal did not return 22 tolas of gold nor the cost for the same complainant lodged this complaint pursuance to which police registered the case under Section 420/120-B read with Section 406/ 120-B, Indian Penal Code Charge was framed by the Metropolitan Magistrate against the petitioners as well as against Chaman Lal. The petitioners challenged the order of framing the charge by filing a revision before the Sessions Judge. Matter was listed before the Addl. Sessions Judge, Delhi, on 22nd May,1995for arguments. That while the arguments were being heard the counsel for the petitioners made a statement. The counsel vide the said statement stated that he would not press the Revision provided charge under Section 420, Indian Penal Code, was deleted and the learned Metropolitan Magistrate be directed to properly frame the charge under Section 120-B, Indian Penal Code, and the proceedings under Section 406 may continue against the accused persons. On the basis of this statement of the counsel, which statement was made without the authority of the petitioners Additional Sessions Judge dropped the charge under Section 420/120-B, IPC.

(4) It is against this dropping of the charge under Setion 420/120-B that the petitioners have felt aggrieved. According to petitioners that counsel had no authority on behalf of the petitioners to make such a statement. The said statement was made by the counsel without any instructions from the petitioners. Under criminal procedure there is no provision to drop a charge on a counsel's statement. Petitioners ought to have been appraised of the same before the Additional Sessions Judge acted on counsel's statement. No instructions were given to counsel to concede for the charge under Section 120-B and 406, Indian Penal Code, and for dropping the charge under Section 420, Indian Penal Code only. By doing so irreparable injury has been caused to petitioners.

(5) Mr. R.D. Jolly, appearing for the State took preliminary objection that this being a second revision petition is not maintainable. The First Revision petition having been disposed of by the Additional Sessions Judge this being second revision petition is not maintainable: In this regard he has placed reliance on the decision of the Supreme Court in the case of Deepti Alias Arati Raj V. Akhil Rai and Ors. .

(6) Admittedly, there cannot be any quarrel with the proposition that second revision petition is not maintainable. This power cannot be invoked as against the order passed by the Sessions Judge, it being a court of coordinate jurisdiction with some powers. But the point for consideration in this case is whether the impugned order is on merits or not? If it is on merits then the present revision petition is barred, but if it is not then admittedly this Court would be within its right to exercise the jurisdiction be that under Article 227 of the Constitution or under Section 482 Criminal Procedure Code .

(7) In order to appreciate as to whether the impugned order is on merits or not the same is reproduced as under:- "ORDER In view of the above statement made by the Ld.counsel for the petitioners, as well as learned A.P.P. for the State, I order the deletion of charge framed under Section 420 Indian Penal Code read with Section 120-B Indian Penal Code and secondly on 24.8.92 by the Ld. M.M. Even otherwise from the material onrecord, there is no prima facie case for framing of charge under section 420 Indian Penal Code read with Section 120-B against the accused. The charge criminal conspiracy framed by the learned M.M. is not complete. The learned M.M. is therefore, directed to reframe the said charge properly specifically writing the section of the Ipc under which the charge of criminal conspiracy is punishable. The Trial shall now proceed in the Court of the Mm for the charges under Section 120-B Indian Penal Code and 406 Indian Penal Code only. As the case is quite old, I direct the Ld. M.M. to dispose of this case as expeditiously as possible. Revision petition stands disposed of accordingly. Revision petition be consigned and trial court record be sent back immediately with a copy of this order. Petitioners will appear in the trial court on the date already Fixed there."

(8) Bare reading of this order shows that the order for deleting the charge under Section 420/ 120-B, Indian Penal Code, was passed by the Court on the basis of the statement made by the counsel for the petitioners. Had it not been so he would have discussed about the other charge's like under Section 406 & 120-B, Indian Penal Code, which was also challenged by the petitioners in the Revision Petition. On the basis of the statement of the counsel for the petitioners he ordered for dropping of the charge under Section 420/120-B, Ipc, and further directed that proper charge be framed under Section 120-B which ground was even not taken in the Revision Petition. This clearly shows that the impugned order was based on the sole statement of the counsel and not on merits of the case. Since the Revision Petition before the Additional Sessions Judge was not disposed on merits, hence this petition is maintainable. By no stretch of imagination it can be called a second revision petition because reading of the order as a whole does not indicate that it was a decision on merits. Therfore, the judgment cited by Mr. Jolly is of no help to him.

(9) For the reasons stated above I accept this petition and set aside the impugned order, remand the case to the court of Additional Sessions Judge, to try and dispose of the revision petition of the petitioners on merits.