Vinay Thakur And Ors vs State Of Bihar And Anr
2023 Latest Caselaw 4121 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.51155 of 2015
      Arising Out of PS. Case No.-1121 Year-2010 Thana- WEST CHAMPARAN COMPLAINT
                                     District- West Champaran
     ======================================================

1. Vinay Thakur, S/o Shankar Thakur

2. Birendra Thakur, S/o Late Mangni Thakur

3. Niraj Thakur, S/o Shankar Thakur

4. Abhishek Thakur @ Dhamu, S/o Birendra Thakur, All are resident of village - Parsa, P.S.- Majhauliya, District - West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2. Raghunath Thakur, S/o Kamla Thakur, R/o Village- Parsa, P.S.- Majhauliya, District- West Champaran ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Rakesh Kumar No.1, Advocate For the Opposite Party/s : Mr. Shailendra Kumar No.1, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL JUDGMENT Date : 29-08-2023

Heard learned counsel for the petitioners and learned

A.P.P. for the State.

2. Learned counsel for the petitioners submits that the

present application has been filed seeking quashing of the order

dated 21.01.2015 passed by the learned Sessions Judge, West

Champaran at Bettiah in Cr. Revision No. 238 of 2014 arising out

of Complaint Case No. 1121-C of 2010, whereby the learned

Sessions Judge dismissed the revision application filed by the

petitioners against the order dated 26.06.2014 passed by the Patna High Court CR. MISC. No.51155 of 2015 dt.29-08-2023

learned Judicial Magistrate, 1st Class, Bettiah in Trial No. 2115 of

2014 arising out of Complaint Case No. 1121-C of 2010.

3. Learned counsel for the petitioners submits that the

complainant has filed Complaint Case No. 1121-C of 2010 against

the petitioners in which cognizance was taken under Section 392

of the Indian Penal Code by the learned Magistrate. Thereafter, the

petitioners were taken into custody and after their release they

filed an application dated 03.01.2014 under Section 245 of the

Cr.P.C. and the same came to be rejected by order dated

26.06.2014 against which the petitioners preferred the instant Cr.

Revision No. 238 of 2014 before the learned Sessions Judge, who

also affirmed the order passed by the learned Magistrate whereby

their application seeking discharge under Section 245 of the

Cr.P.C. was rejected.

4. Learned counsel for the petitioners submits that the

revisional order is bad on the ground that the same did not take

into consideration the fact that no case under Section 392 of the

Indian Penal Code was made out against the petitioners in the

nature of evidence brought on record by the complainant during

the course of inquiry and that petitioners came to be implicated on

account of previous enmity.

Patna High Court CR. MISC. No.51155 of 2015 dt.29-08-2023

5. Mr. Chandra Bhushan Prasad, learned A.P.P.

vehemently opposes the submissions made by the learned counsel

for the petitioners and submits that the present quashing

application is nothing but a second revision which is barred under

Section 397(3) of the Cr.P.C. Learned A.P.P. further relies on the

judgment of the Supreme Court in the case of Rajan Kumar

Machananda Vs. State of Karnataka reported in 1990 Supp

SCC 132 to submit that in the said case, the Hon'ble Supreme

Court, after recording the facts, had observed that a second

revision did not lie at the instance of the State in the High Court in

view of the provisions of Section 397(3) of Cr.P.C. Obviously, to

avoid this bar, the application moved by the State before the High

Court was stated to be under Section 482 Cr.P.C., asking for

exercise of inherent powers. In exercise of that power, the High

Court has reversed the order of the Magistrate as affirmed by the

Sessions Judge. The question for consideration is as to whether the

bar under Section 397(3) Cr.P.C. should have been taken note of to

reject the revision at the instance of the State Government or

action taken by the High Court in exercise of its inherent power

has to be sustained. It is not disputed by the learned counsel

appearing for the State that the move before the High Court was

really on application for revision of the order of the Magistrate Patna High Court CR. MISC. No.51155 of 2015 dt.29-08-2023

releasing the truck. That is exactly what is prohibited under

Section 397(3) Cr.P.C. Merely by saying that the jurisdiction of the

High Court for exercise of its inherent power was being invoked,

the statutory bar could not have been overcome. If that was to be

permitted, every revision application facing the bar of Section

397(3) of the Code could be labelled as one under Section 482. We

are satisfied that this is a case where High Court had no

jurisdiction to entertain the revision.

6. Learned A.P.P. further submits that when a quashing

application is filed challenging the order of revision passed by the

Sessions Judge, in that event, this Court has to be cautioned and

circumspect, for the reason that the application under Section 482

of the Cr.P.C. is basically a second revision which is barred under

Section 397(3) of the Cr.P.C. but then fairly submits that if from

perusal of the revisional order the Court comes to a conclusion that

the reason assigned in the revisional order is bordering on

perversity or from perusal of the impugned there appears to be a

serious miscarriage of justice or legal provisions were ignored then

this Court, in order to secure the ends of justice, can interfere in

exercise of its inherent power under Section 482 of the Cr.P.C. and

thus relies on the judgment of the Supreme Court in the case of

Madhu Limaye vs. The State of Maharastra reported in 1997(4) Patna High Court CR. MISC. No.51155 of 2015 dt.29-08-2023

SCC 551. It is next submitted that language of Section 397 Cr.P.C.

is clear and there is no ambiguity. It is next submitted that an

aggrieved can prefer a criminal revision under Section 397(1) of

the Cr.P.C. either before this Court or before the Court of learned

Sessions Judge and thus it can be safely argued that once an

aggrieved has availed his remedy before the learned Session then

he is precluded from approaching the other forum in terms of

Section 397 of the Cr.P.C. Learned A.P.P. also submits that since

Section 482 Cr.P.C. starts with an non obstante clause that would

mean merely on account of the fact that a person has preferred a

revision in the Sessions Court, he need not be debarred from

assailing the order before the High Court under Section 482

Cr.P.C. in order to prevent abuse of the process of the law and to

secure the ends of justice but in absence of such proposition, as

recorded hereinabove, application under Section 482 Cr.P.C.

cannot be entertained.

7. Learned A.P.P. further submitted that Hon'ble

Supreme Court in the case of Manju Ram Kalita Vs. State of

Assam reported in (2009) 13 SCC 313 at para 10 has observed:-

"It is settled legal proposition that if the courts below have recorded the finding of fact, the question of re-appreciation of evidence by the third court does not arise unless it is found to be totally perverse."

Patna High Court CR. MISC. No.51155 of 2015 dt.29-08-2023

8. Learned A.P.P. thus submits that from perusal of the

order impugned, it would manifest that the learned revisional

court, by placing reliance on the facts of the case, has come to a

considered conclusion that the order rejecting the application of

discharge of the petitioners by the learned Magistrate did not call

for any interference.

9. Considering the submissions made by the learned

A.P.P., the Court is not inclined to entertain the quashing

application, which is hereby rejected.

(Satyavrat Verma, J)

Kundan/-

AFR/NAFR                AFR
CAV DATE                N.A.
Uploading Date          30.08.2023
Transmission Date       30.08.2023