Delhi High Court
Vishal Kumar Sharma & Anr. vs State & Anr. on 18 May, 2011
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. No. 1588/2011
Date of Decision : 18.05.2011
VISHAL KUMAR SHARMA & ANR. ...... Petitioners
Through: Mr. Haneef Mohammad,
Adv.
Versus
STATE & ANR. ...... Respondents
Through: Mr. M.N.Dudeja, APP for
the State.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? NO
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J. (Oral)
1. The petitioner has challenged the order dated 10.3.2011
passed by the Court of Ms.Madhu Jain, ASJ-01 (N), Tis
Hazari Courts, Delhi in Crl.Rev.P.No.16/2011 by virtue of
which the learned ASJ has issued notice of the Revision
Petition to the respondent no.2 namely the present petitioners
and in the meanwhile, stayed the operation of the order dated
28.2.2011.
2. I have heard the learned counsel for the petitioners and have
gone through the record.
3. Briefly stated the facts of the case are that the present
petitioners, Vishal Kumar Sharma and Nirmal Kumar filed a
complaint under Section 200 Cr.P.C. read with Section 156
(3) Cr.P.C. against Jaipal Singh Kaushik, Kumar Vaibhav, SI
Pawan Kumar and ASI Shiv Kumar alleging that they have
committed various offences on 12.5.2009.
4. The learned Magistrate had directed an investigation to be
made by the SHO under Section 156 (3). On receipt of the
investigation report, the learned Magistrate applied his mind
and passed an order on 28.2.2011 taking cognizance of the
offence under Section 218/220/341/343/34 IPC and directed
the SHO, P.S. Timarpur to register an FIR in respect of the
aforesaid offences.
5. The accused were further directed to be arrested only if there
is sufficient evidence in this regard.
6. Pawan Kumar, respondent no.3 in the present petition felt
aggrieved by the said order and accordingly, preferred a
Crl.Rev.P.No.16/2011 before the learned ASJ whereupon
notice was issued to the petitioners, Sh.V.K.Sharma and
Sh.N.Kumar who were respondent nos.2 and 3 respectively in
the said revision petition.
7. While issuing notice to the respondents in the said revision
petition, the learned Sessions Judge stayed the operation of
the order dated 28.2.2011 till the next date of hearing.
8. The contention of the learned counsel for the petitioners is
that the order of the learned Magistrate dated 28.2.2011 was
only directing the SHO under Section 156(3) Cr.P.C. to
register an FIR for an offence under Section
218/220/341/342/34 IPC and to arrest the accused persons
namely the respondents if enough evidence were found
against them. It is contended by him that an order directing
an investigation under Section 156(3) is not a revisable order
and consequently Revision Petition purported to have been
filed by the respondent no.3 herein was not maintainable.
9. The learned counsel in support of his contention has placed
reliance on the judgment of the Full Bench of the Allahabad
High Court in a case titled Father Thomas Vs. State of UP &
Anr. 2011 (1) ADJ 333. In this judgment, the Full Bench of
the Allahabad High Court has answered the reference made
to it by observing that no criminal revision would lie against
the order passed by a Magistrate directing an investigation
under Section 156 (3) Cr.P.C. On the strength of this Full
Bench decision, the contention of the learned counsel for the
petitioners is that the Revision Petition which has been
entertained by the learned ASJ is not maintainable as the
order passed by the learned Magistrate directing an
investigation under Section 156 (3) Cr.P.C. is not revisable
and therefore, the order of stay is also bad in law.
10. I have considered the submissions made by the learned
counsel for the petitioners and have gone through the record.
11. No doubt, there is a Full Bench judgment of Allahabad High
Court to the effect that an order directing investigation under
Section 156 (3) Cr.P.C. is not a revisable order but this
judgment has to be shown to the Revisionist Court instead of
assailing the order of the learned Sessions Judge in a
petition under Section 482 Cr.P.C. The learned Sessions
Judge has only issued notice in the impugned order dated
10.3.2011. The operation of the order of the Trial Court has
also been stayed till next date of hearing. The petition does
not show as to whether on the subsequent date thereto, the
petitioners have put in appearance in response to the notice
or not. Simply on account of notice having been issued, it
could not be assumed that the learned Sessions Judge has
disposed of the Revision Petition in favour of the petitioners in
the said Revision Petition. Therefore, in my considered
opinion, the proper remedy for the present petitioners is to
approach the learned ASJ and apprise him about the
judgment of the Full Bench of the Allahabad High Court and
make necessary submissions before the said Court.
Moreover, Section 482 Cr.P.C. reads as under:-
"482. Saving of inherent powers of High
Court.--Nothing in this Code shall be deemed
to limit or affect the inherent powers of the
High Court to make such orders as may, be
necessary to give effect to any order under
this Code, or to prevent abuse of the process
of any Court or otherwise to secure the ends
of justice"
12. A perusal of the aforesaid Section would clearly show that no
doubt, the High Court has inherent powers to pass any order
to prevent the abuse of the processes of law or to secure the
ends of justice but this is an extraordinary power and should
be used very sparingly and certainly not in a case where there
is an alternate remedy available to a party.
13. In the instant case, in my considered view, the petitioners
have prematurely rushed to the High Court for getting their
grievance redressed, when they can do the same, by
approaching the learned Sessions Judge and making
submissions in this regard. Therefore, I feel that the petition
is totally premature and does not merit consideration.
14. Accordingly, the present petition is dismissed with liberty to
the petitioners to approach the learned Sessions Judge and
make necessary submissions in this regard.
V.K. SHALI, J.
MAY 18, 2011
RN
