Puran Chand And Ors vs State
2021 Latest Caselaw 110 j&K

                                                                  Sr. No. 221

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU

                                                CRR 21/2012
                                                IA 20/2012


Puran Chand and ors                                          ..... Petitioner (s)

                               Through :- Mr. R.K.Bhatia Advocate

                         V/s

State                                                       .....Respondent(s)

                               Through :- Mr. Aseem Sawhney AAG

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                               JUDGEMENT

1 Instant criminal revision is directed against the order dated

30.01.2012 passed by the learned Principal Sessions Judge, Jammu in file

No. 41-Revision titled 'State vs Puran Chand and ors'.

2 Before adverting to the grounds of challenge urged on behalf of

the revision petitioners, it is necessary to notice few material facts. An FIR

bearing No.12 under Section 420 RPC came to be registered with Police

Station Janipur at the instance of one Banarsi Dass (the complainant) with an

allegation that on 01.11.2008, petitioner No.3 performed engagement

ceremony with his daughter Anju Devi and that the date of marriage was fixed

for 07.12.2008. However, petitioner No.3 later on cancelled the engagement on

24.11.2008 by saying that he did not want to marry his daughter. The further

case of the petitioner was that the police recovered a refrigerator and a

television set from petitioner No.3 which had been given to him at the time of

engagement ceremony. T he police, on the allegation that petitioner No.3 had

cheated the complainant, registered the FIR under Section 420 RPC and set in 2 CRR 21/2012

motion the investigation. The statements under Sections 161 Cr.P.C were

recorded and challan was presented before the Court of learned Special

Municipal Mobile Magistrate, Jammu ( hereinafter referred to as the 'trial

Court').

3 The trial Court, finding that the breach of engagement simplicitor

does not amount to cheating and that the ingredients of offence under Section

420 RPC were missing in the challan, discharged all the petitioners. Feeling

dissatisfied and aggrieved, the State preferred a revision petition before the

Court of learned Principal Sessions Judge, Jammu (hereinafter referred to as

the 'Revisional Court'). The Revisional Court vide its order dated 05.01.2012

issued notice to the other side and fixed the matter for further proceedings on

19.01.2012. On 19.01.2012, the Revisional Court after noticing that the record

from the trial Court had been received, heard and reserved the matter. The

judgment was delivered on 30.01.2012 and the order of the trial Court whereby

the petitioner had been discharged was reversed. It is this order passed by the

Revisional Court which is impugned in this revision petition filed by the

petitioners.

4 Having heard learned counsel for the parties and perused the

record, I am of the view that the order impugned dated 30.01.2012 which has

been passed by the Revisional Court at the back of the petitioners is not

sustainable in law and is in violation of principles of natural justice.

5 From the perusal of record of the Revisonal Court, it clearly

transpires that no notice was ever served upon the petitioners. As a matter of

fact, in the memo of revision petition filed before the Revisional Court, the

names of the accused (petitioners herein) have not been indicated and the title

of the revision petition has been stated as "State vs Puran Chand and others. In 3 CRR 21/2012

that view of the matter and in absence of particulars of accused (petitioners

herein), no notice could have been served upon them. As a matter of fact,

though notice was issued by the Court, yet the same was never served upon the

respondents and the matter was decided by the Revisional Court in

ex parte.

6 Section 438 of Cr.P.C prescribes the revisional powers of the

Sessions Judge. For facility of reference, the same is reproduced hereunder:

"Sessions Judge's powers of revision.--(1) In the case of any proceeding the record of which has been called for by him, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section

439.

(2)Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2),(3), (4) and (5) of section 439 shall, so far as may be, apply to such proceedings and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3)Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other court.

(4)An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge".

7 From a perusal of Section 438 (1)(2) of Cr.P.C, it is clear that the

Sessions Judge while hearing the revision petition against an order of a 4 CRR 21/2012

Magistrate subordinate to it shall exercise all or any of the powers which may

be exercised by the High Court under Section 439(1) of Cr.P.C and the

provisions of Section 439 (2),(3),(4) and (5) of Cr.P.C shall, so far as may be,

apply to such proceedings before the Sessions Judge.

8 Now we turn to Section 439 of Cr.P.C which deals with the

powers of revision of the High Court. Sub-section (2) thereof makes it

abundantly clear that the High Court shall not pass any order to the prejudice of

the accused unless he has had an opportunity of being heard either personally

or by pleader in his own defence.

9 From the reading of Section 438 of Cr.P.C along with Section

439 Cr.P.C. it is abundantly clear that the Sessions Court or for that matter, the

High Court, while exercising the powers of revision, shall not pass any order to

the prejudice of the accused, unless such accused has been given an

opportunity of being heard. Viewed thus, I have no manner of doubt that the

exercise of revisional jurisdiction by the Revisional Court was contrary to the

provisions of Section 438 of Cr.P.C read with Section 439 of Cr.P.C and in

sheer violation of principles of natural justice. The order impugned is,

therefore, nullity in the eye of law.

10 An objection was taken by Mr. Aseem Sawhney, learned AAG

that the order passed by the Sessions Court in a revision petition under the

Code of Criminal Procedure is not further revisable before the High Court. The

argument made by leaned AAG is not supported by the legal provisions and,

therefore, is without any substance.

11 Section 438(3) of Cr.P.C makes it crystal clear that where any

application for revision is made by or on behalf of any person before the 5 CRR 21/2012

Sessions Judge, the decision of the Sessions Judge thereon in relation to such

person shall be final and no further proceedings by way of revision at the

instance of such person shall be entertained by the High Court or any other

Court. To the similar effect is the provision of Section 435(3) of Cr.P.C which,

for facility of reference, is reproduced hereunder:

"If an application under the Section has been made by any person either to High Court or to the Sessions Judge, no further application by the same person shall be entertained by the either of them".

12 It is, thus, axiomatic that the second revision petition by the same

person, who has filed the first revision, alone is barred. In the instant case, the

first revision before the Sessions Court was filed by the State, whereas the

instant revision petition before this Court has been filed by the accused. That

being so, the revision petition cannot be said to be barred under any of the

provisions of Cr.P.C.

13 The observations of Supreme Court made in para 4 of the

judgment rendered in the case of Bakulabai and another vs. Gangaram and

another, (1988) 1 SCC 537 are noteworthy and reproduced hereunder:

"On the maintainability of the revision application before it, the High Court took an erroneous view. The provisions of sub-section (3) of Section 397 relied upon, are in the following terms:

"(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

The main judgment of the Judicial Magistrate upholding the appellants' claim for maintenance was in her favour and there 6 CRR 21/2012

was no question of her challenging the same. Her challenge before the Sessions Judge was confined to the part of the order assessing the amount of maintenance, and this issue could not have been raised again by her. Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court. The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court. She could not, therefore, be said to be making a second attempt when she challenged this order before the High Court. The fact that she had moved before the Sessions Judge against the quantum of maintenance could not be used against her in respect of her right of revision against the Sessions Judge's order. Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable".

14 In view of the aforesaid legal position, the objection raised by

Mr. Sawhney with regard to maintainability of the revision petition is rejected.

15 For the foregoing reasons, the instant revision petition is allowed

and the order impugned set aside. The Revisional Court shall consider the

matter afresh after providing an opportunity of being heard to all the parties

including the petitioners herein and pass appropriate orders.

(SANJEEV KUMAR) JUDGE Jammu 15.02.2021 Sanjeev

Whether the order is speaking: Yes Whether the order is reportable: Yes

SANJEEV KUMAR UPPAL 2021.02.18 13:59 I attest to the accuracy and integrity of this document