Neena vs Sandeep Malhotra
2012 Latest Caselaw 4672 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Decision :August 07 , 2012

+                      Crl.M.C.2547/2012

        Neena                               ........Petitioner.
                       Through : Mr.Ashok Arora, Advocate.

                       versus

        Sandeep Malhotra               ...........Respondent
                            Through : Nemo

        CORAM:
        HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J. (Oral)

1. This is a second petition under Section 482 Cr.P.C for

setting aside the order dated 21st January, 2011, passéd by

learned ASJ, Delhi. The ground for filing the second petition for

setting aside the order dated 21st January, 2011, passed by ASJ

in Crl.Revision Petition No.105/10/10, is that the first petition

bearing Crl.M.C.No.980/2011 was dismissed as withdrawn due

to non understanding of the judgment in Dhariwal Tobaco

Products Limited and others Vs.State of Maharashtra and

Another - (2009) 2 Supreme Court Cases 370, where the

Supreme Court held that in their considered opinion V.K.Jain

(Supra) does not lay down a good law and it was over-ruled.

Page 1 of 4 Crl.M.C.2547/2012

2. It has been submitted on behalf of the petitioner that in

Adalat Prasad's case while observing that Mathew's case does

not lay down correct law, it was further held that if Magistrate

takes cognizance of offence, issues process without any

allegation against accused or no material implicating accused

or in contravention of provisions of Sections 200 and 202

Cr.P.C., order of Magistrate may be vitiated. Aggrieved accused

can obtain relief not by invoking Section 203 Cr.P.C., because

Cr.P.C does not contemplate review of order. In the absence of

any review power or inherent power with subordinate criminal

courts, remedy lies in invoking Section 482 Cr.P.C.

3. The contention of the learned counsel for the petitioner,

Mr.Ashok Arora is that in view of the legal position laid down in

Adalat Prasad's case, the revision petition before the learned

ASJ was not maintainable. Hence the impugned order is liable

to be set aside. The only remedy available to the respondent is

to invoke the jurisdiction of this Court under Section 482

Cr.P.C., and the order passed by the learned ASJ, exercising

revisional jurisdiction, being without jurisdiction is liable to be

set aside.

Page 2 of 4 Crl.M.C.2547/2012

4. The submission of the learned counsel for the petitioner

that the earlier petition was withdrawn due to lack of

understanding of the legal proposition laid down in Dhariwal

Tobaco's case, is liable to be rejected for the reasons given in

paras 10 and 11 of the said decision, which are reproduced as

under:-

"10. Inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of.

In fact in Adalat Prasad Vs. Rooplal Jinal and Others - (2004) (7) SCC 338 to which reference has been made by the learned Single Judge of the Bombay High Court in V.K.Jain and others (supra) this Court has clearly opined that when a process is issued, the provisions of Section 482 of the Code can be resorted to.

11. It may be true, as has been noticed by the High Court that thereunder availability of appellate or revisional jurisdiction of the High Court did not fall for its consideration but in our considered opinion it is wholly preposterous to hold that Adalat Prasad (supra), so far as it related to invoking the inherent jurisdiction of the High Court is concerned, did not lay down good law."

Page 3 of 4 Crl.M.C.2547/2012

5. At the outset, it is necessary to mention that after

withdrawal of the first petition No.980/2011, petitioner could

not have filed the second petition, praying for the same relief.

Thus filing of the present petition itself is a gross abuse of the

process of law. Even if it is assumed for the sake of arguments

that the earlier petition was withdrawn due to the reason

referred to above, the legal position remains the same which

was brought to the notice of the learned counsel for the

petitioner on 15th May, 2012. Since the respondent could have

challenged the order by filing a revision petition and the order

passed by the learned ASJ being passed in exercise of the

revisional jurisdiction, duly vested in that Court, the impugned

order calls for no interference.

6. The ground for re-filing this petition being not available to

the petitioner, this petition is also dismissed.

Pratibha Rani,J August 07, 2012 aka.

Page 4 of 4                                          Crl.M.C.2547/2012