C482/718/2022
2022 Latest Caselaw 3795 UK

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                                  C482 No. 718 of 2022
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. P.C. Petshali, Advocate, for the applicant.

Mr. T.C. Agarwal, Deputy A.G., with Mr. Tumul Nainwal, Brief Holder, for the State of Uttarakhand.

Mr. Sudhir Kumar, Advocate, for respondent No.2.

In a proceeding, which stood instituted by way of Criminal Case No. 2607 of 2014, State Vs. Jyoti Singh and another, which is pending consideration before the Court of Judicial Magistrate, 1st Haldwani, District Nainital, the opportunity to lead evidence by the prosecution, was declined by an order dated 27th November, 2021.

The issue would be, and as it has been argued by the learned counsel for the applicant, that whether the applicant in the capacity of being a complainant, could have at all put a challenge to the order of 27th November, 2021, where only the prosecution's opportunity to lead the evidence was closed, because if at all, any grievance was left to be agitated, it would be with the State, where the prosecution witness was closed to be adduced, it could have been by the State only.

The learned counsel for the applicant submits, that in the light of the provisions contained under Section 397 of Cr.P.C., it was rather the responsibility of the Court, that the Court should have taken suo moto cognizance too. The issue of taking of suo moto cognizance under Section 397 of the Cr.P.C, would have been a subject matter to be argued, had the applicant not preferred a Criminal Revision itself under Section 397 of the Cr.P.C., because suo moto cognizance is only a mode provided by the Criminal Courts, to take cognizance of an aspect, which is otherwise not brought to its knowledge. Filing of a Criminal Revision by the applicant under Section 397 of the Cr.P.C, which has been ultimately later on dismissed on 7th May, 2022, by the Court of 1st Additional District and Sessions Judge by an order dated 7th May, 2022, holding thereof, that in the light of the judgment of the Hon'ble Apex Court as rendered in S.P. Gupta Vs. State of NCT Delhi and another in C.R.L.M.C. No. 1163 of 2021, as decided on 06.08.2021, whatsoever right, which was vested as against the impugned order of 27th November, 2021, closing an opportunity of the prosecution to lead evidence, the prejudice was caused to the State and not with the complainant. Hence, the Revision was dismissed as not maintainable.

The argument of the learned counsel for the applicant, is that rather the Court has failed to perform its duty to take a suo moto cognizance, this argument becomes an irrelevant aspect, as the knowledge itself before the Revisional Court was attributed by the present applicant, by preferring a Criminal Revision, where the aspect pertaining to a challenge of the order of 27th November, 2021, at the behest of the applicant in a Criminal Revision was decided by the judgment of 7th May, 2022.

Reverting back to the impugned order dated 27th November, 2021, this Court is of the view, that merely because the applicant enjoys the status of being a complainant, that in itself, will not grant him a liberty or a latitude, to put a challenge to the order dated 27th November, 2021, where in fact, the prosecution's opportunity to lead evidence was closed.

In that eventuality, the C482 Application as against the order of 27th November, 2021, would not be sustainable at the behest of the present applicant. Hence, the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) Dated 24.11.2022 Shiv