Delhi High Court
Junsik Han vs State Of Nct Of Delhi & Anr on 9 July, 2018
$~103
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 9th July, 2018
+ CRL.M.C. 2749/2018 & CRL.M.A. 9783-9784/2018
JUNSIK HAN ..... Petitioner
Through: Mr. Kapil Sibal, Senior Advocate &
Mr. Arvind Nigam, Senior Advocate
with Mr. Amit Kumar Mishra, Mr.
Mohit Singh, Mr. Gaurave Bhargav,
Ms. Samridhi Hota, Mr. Koshi John,
Mr. Raghav Tankha, Mr. Shashank
Manish, Mr. Mikhil Sharda & Mr.
Mehtaab Singh Sandhu, Advocates.
versus
STATE OF NCT OF DELHI & ANR ..... Respondents
Through: Mr. Ashish Dutta, APP for State..
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The present petition has been filed invoking extraordinary
criminal jurisdiction of this court under Section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) to bring a challenge to the order
dated 23.01.2018, whereby the court of additional sessions judge
(ASJ) has issued notice on the revision petition (CR.No.204248/16) of
the second respondent, inter alia, to the petitioner, he having been
shown in the array as respondent No.21 in the said revision petition
which was presented, in turn, against order dated 26.08.2015 of the
court of Chief Metropolitan Magistrate, South-East District (CMM) on
the criminal complaint case (CC No.109/1/2013) where the petitioner
herein was impleaded as prospective accused No.21.
2. It may be mentioned here that the criminal complaint was
presented by the second respondent on 27.11.2013 against 25 persons
(including the petitioner herein) alleging offences punishable under
Sections 406/409/420/467/468/471 read with Section 120-B of the
Indian Penal Code, 1860 (IPC) with a prayer, by a separate application
for the case to be referred to the police for investigation by directions
under Section 156(3) Cr.P.C. The Metropolitan Magistrate declined
the prayer for direction to the police to investigate by order dated
29.05.2015 and instead decided to take cognizance and hold inquiry
under Section 200 Cr.P.C. The second respondent led evidence in the
said preliminary inquiry which was considered by the CMM by order
dated 26.08.2015. She concluded that there are no sufficient grounds
for proceeding further with the said complaint and deemed it fit to
dismiss it under Section 203 Cr.P.C.
3. The second respondent (the complainant of the case), feeling
dissatisfied, seeks to avail the remedy of revision under Section 397
Cr.P.C. and, thus, filed the aforementioned revision petition in the
court of Sessions. By order dated 23.01.2018, which is sought to be
impugned, the ASJ has issued notice to the parties who are impleaded
as respondents, i.e., including the petitioner herein requiring their
appearance on 05.04.2018.
4. It was fairly admitted at the bar by the learned senior counsel
for the petitioner that he has due notice of the said revision petition
pending before the court of Sessions, but feeling prejudiced by the
order issuing notice, the present petition has been filed primarily with
the submission that no case of any offence has been made out against
him by the second respondent, the compliant being motivated. It is the
argument of the learned senior counsel that this court must step-in to
quash the entire process arising out of revision petition "to secure the
ends of justice" since the criminal complaint and the revision petition
are in the nature of "abuse of the process of the court". It was argued
that the order dated 23.01.2018 has been passed mechanically and
does not disclose the reasons why the revisional court has chosen "not
to uphold the order of the Magistrate". Reliance was placed on ruling
of a learned single judge of this court in case reported as Uday Kotak
vs. G.D. Foods MFG (I) Pvt. Ltd., (2015) 150 DRJ 594, particularly
with reference to the observations (in para 12) to the effect that the
criminal proceedings may continue only if the complaint discloses a
cognizable offence.
5. In the considered view of this court, the petition is
misconceived and there is no occasion at this stage of the process for
this court to interdict. The second respondent is the complainant of the
criminal case and at his instance the Metropolitan Magistrate had held
inquiry under Section 200 Cr.P.C. The complainant could not satisfy
the court of cognizance about the allegations of offences having been
committed, inter alia, by the petitioner herein. Thus, no adverse order
was passed against the petitioner by the Metropolitan Magistrate. The
complainant indisputably is entitled to approach the revisional court
under Section 397 Cr.P.C. against such order of the Metropolitan
Magistrate. The Criminal Procedure Code vests such revisional
jurisdiction not only in this court but also in the court of Sessions.
Thus, the complainant had the choice of two forums available to him.
He chose the court of Sessions to present his revision petition. The
Sessions court while exercising such revisional jurisdiction is bound,
by virtue of Section 399 Cr.P.C. with the procedural requirement of
Section 401 Cr.P.C. The mandate of Section 401 (2) Cr.P.C. is that no
order in the revisional jurisdiction "shall be made to the prejudice of
the accused or any other person unless he has had an opportunity of
being heard either personally or by pleader in his own defence".
6. The impugned order dated 23.01.2018 of the court of Sessions
dealing with the revision petition is an order passed only at the
threshold with the intent of compliance with the requirement of
Section 401(2) Cr.P.C. in letter and spirit. At this stage of the process,
the additional sessions judge cannot be expected to record any
observations on the merits of the contentions raised - particularly
observations concerning reasons, if any, for not being in agreement
with the findings of the Magistrate - inasmuch as that would be
prejudicial to one side or the other.
7. A competent court vested with the power of revision is in seisin
of the matter. That is the forum chosen by the revision petitioner. Any
intervention by this court at this stage in exercise of its inherent power
under Section 482 Cr.P.C. would tantamount to usurpation of the
jurisdiction of the revisional court which is neither proper nor
desirable. There are, as on date, no adverse orders passed against the
petitioner as to his complicity in the crimes alleged by the second
respondent. Nothing inhibits the petitioner in appearing before the
revisional court to render assistance in response to the notice issued by
the impugned order. There is no occasion for this court to intervene
under the extraordinary criminal jurisdiction at this stage.
8. The petition and the applications filed therewith are dismissed.
R.K.GAUBA, J.
JULY 09, 2018
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