Danish Parwez @ Danish Parwej vs The State Of Jharkhand
2021 Latest Caselaw 3460 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Criminal Revision No. 869 of 2020
                                     -----------

                Danish Parwez @ Danish Parwej                                   .....Petitioner
                                                 Versus
                The State of Jharkhand                                         ....Opposite Party

                Coram:    HON'BLE MR JUSTICE RAJESH KUMAR
                                    -----
                For the Petitioner         : Mr. B. M. Tripathi, Sr. Advocate
                                            Mr. Naveen Kr. Jaiswal, Advocate
                For the State              : Mr. Arup Kr. Dey, A. P. P.
                                                   -----

The matter was taken up through Video Conferencing. Learned counsels for the parties had no objection with it and submitted that the audio and video qualities were good.

......

05/16.09.2021 Heard Mr. B. M. Tripathi, learned senior counsel for the petitioner assisted by Mr. Naveen Kumar Jaiswal, learned counsel and Mr. Arup Kumar Dey, learned APP. for the State.

The present criminal revision has been filed for setting aside the order dated 21.10.2020 passed by learned Additional Judicial Commissioner-IV-cum-Special Judge, POCSO, Ranchi in Misc. Criminal Application No. 834 of 2020 corresponding to POCSO Case No. 109 of 2020 in connection with Jagarnathpur P. S. Case No. 248 of 2020 whereby prayer for discharge under Section 227 of the Cr. P. C. has been rejected.

The criminal proceeding has been put into motion by lodging an FIR being Jagarnathpur P. S. Case No. 248 of 2020 dated 06.06.2020 making allegation by the victim girl that she has friendship with one of the co-accused Sonu Sharma, who has taken nude photographs fraudulently. Thereafter it has been sent to another co-accused. The victim has been demanded Rs. 50,000/- from the mobile of Danish (the present revisionist) and threatened her that if Rs. 50,000/- is not given then her nude photographs will be made viral on the internet.

Police, after investigation, has found the incident true and accordingly, charge sheet has been submitted. Thereafter, cognizance has been taken by the Special Judge, POCSO, Ranchi.

The petition under Section 227 of the Cr. P. C. filed by the present revisionist has been rejected by the impugned order.

Learned senior counsel for the revisionist has assailed the order by taking plea that offence under Section 67-B of the IT Act is not made out and further by referring to the certificate of the victim girl of the Jharkhand Academic Council, Ranchi, it has been submitted that date of birth of the victim girl is 21.06.2002 and as such, the offence under the POCSO Act is not made out. At best the case under Section 385 of the Indian Penal Code is made out and other Sections will be applicable to the other accused and not upon this revisionist.

Learned counsel for the State has filed the counter affidavit and opposed the prayer.

It has been submitted that it is settled law that order is not revisable, if it is interlocutory in nature. Only those orders are revisable, which are intermediary in nature. This concept of intermediary order has been evolved by the judicial pronouncement by the Apex Court. Intermediary order has been defined that if it is reversed, then proceeding will come to an end. Normally, the proceeding under Section 227 of the Cr. P. C. is revisable for simple reason that if it is allowed then proceeding will come to an end, so far as revisionist is concerned.

In the present case, if the prayer of the revisionist is allowed, then it will not conclude the proceeding, rather the proceeding will continue. It is mere prayer for alteration of charge. The ample provisions are there in the Cr. P. C. for alteration of charge at any stage of the trial. Interference by the Revisional Court, at this stage regarding one or other charges will only delay the proceeding and further will amount unnecessary interference in natural flow of the proceeding.

Having heard learned counsel for the parties and from the perusal of the records, it appears that the offence has been committed. The victim has asserted that at the time of incident, she was below 18 years of age. Further even learned senior counsel for the revisionist has not prayed that no offence is made out, rather some of the charges questioned. The prayer and the jurisdiction are co-related and co-extensive. Nature of the order, which is said to be revisable, not only depends on the order itself, but it also gets essence from the prayer before the Revisional Court. If the prayer and nature of order is clubbed together, the effect is that it will not terminate/culminate the proceeding, rather proceeding will continue then revisional jurisdiction will not be available. Parameter has been settled by the Apex Court in the case of Sanjay Kumar Rai Versus State of Uttar Pradesh and Another reported in 2021 SCC online SC 367. Para-13 of the said judgment read as under:

"13. At the outset, we may note that the High Court has dismissed the Criminal Revision on the ground of lack of jurisdiction under Section 397 of the Cr. P. C. The High Court did not examine the issue in detail to find out whether the continuation of proceedings will amount to abuse of process of law in this case. The impugned order cites the decision of this Court in Asian Resurfacing (supra) wherein it was noted as under:

"...Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter."

Thus, it is clear that revisonal jurisdiction should be exercised only when it terminates the proceeding, otherwise any interference will result in delay of the proceeding and further if there are ample provisions for correction of the charge, as pointed out by the revisionist, in that case also interference by the Superior Court in revisional jurisdiction is unwarranted.

In view of the above discussion, this Court finds no reason to interfere with the impugned order and accordingly, the present criminal revision is, hereby, dismissed.

However, the revisionist is at liberty to work out his remedy at appropriate stage in the Court below.

(Rajesh Kumar, J) kamlesh/