Skip to content


Kinzang Dahdul Vs. Ransul Kharga and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1978CriLJ1569
AppellantKinzang Dahdul
RespondentRansul Kharga and anr.
Cases ReferredState Bank of India v. N.S. Money
Excerpt:
.....but is. but there are three other points involved in this case to which, in our view, the learned sessions judge should have given his anxious advertence before deciding to forward this case to this court and we would like to deal with those points before parting with this case as they relate to matters of considerable importance and our observations thereon may serve as guiding principles for further cases. but if one bears in mind, as one should, the earlier as well as the later decisions of the supreme court spreading over a period of about twenty five years, it would be clear that no such all embracing embargo was ever intended to be laid down in thakur ram's case. mukunda 1955crilj1299 .such a right has also been clearly recognised by the supreme court in the earlier cases..........going through the records of case and the explanation submitted by the trying magistrate to the learned sessions judge, we are of opinion that the learned sessions judge was wrong in reporting this case to this court under section 438 of cr. p.c. 1898, and that we must decline to interfere in this case.2. the case of the petitioner-complainant is that he filed a complaint against the accused-respondent before the district magistrate, gyalshing, alleging that the respondent had tres-passed into his cardamom field and removed cardamoms therefrom and the district magistrate forwarded the com-plaint to the o/c, gyalshing police station for investigation after treating the complaint as the first information report. the accused-respondent was thereafter produced before the district.....
Judgment:

A.M. Bhattacharjee, J.

1. The learned Sessions Judge of Sikkim at Gangtok has reported this case under Section 438, Cr. P.C. (1898) with recommendation that the order of the learned District Magistrate dated 5th Jan. 1977 passed in Criminal Case No. 332 of 1976 discharging the accused-respondent should be set aside and the case be sent back to some other competent Magistrate for further enquiry and trial. But after hearing the petitioner-complainant and the accused respondent and the learned Advocate-General appearing for the State and after going through the records of case and the explanation submitted by the trying Magistrate to the learned Sessions Judge, we are of opinion that the learned Sessions Judge was wrong in reporting this case to this Court under Section 438 of Cr. P.C. 1898, and that we must decline to interfere in this case.

2. The case of the petitioner-complainant is that he filed a complaint against the accused-respondent before the District Magistrate, Gyalshing, alleging that the respondent had tres-passed into his cardamom field and removed cardamoms therefrom and the District Magistrate forwarded the com-plaint to the O/C, Gyalshing Police Station for investigation after treating the complaint as the First Information Report. The accused-respondent was thereafter produced before the District Magistrate on 29-9-76 and was released on bail. The case of the petitioner is that on that very day, i. e. 29-9-1976, a chargesheet under Section 447/379, I. P.C. was also filed against the accused-respondent and that the said fact was also noted by the District Magistrate in the order passed by him on the same day. But the petitioner alleges, that notwithstanding submission of the charge-sheet on 29-9-1976 under Section 447/379 of the I.P.C. the learned District Magistrate discharged the accused-respondent on the ground that the police submitted a final report in the said ease alleging that no evidence was available to justify any criminal prosecution and that the dispute between the parties as disclosed during the investigation was only of a civil nature.

3. If in a criminal case a final report is submitted the police asserting that no material could be discovered disclosing any offence, the order of the trial Magistrate discharging the accused and/or dropping the proceeding is only usual and is in no way irregular. But, as already noted, the case of the petitioner is that a charge-Sheet under Section 447/379 of the Indian Penal Code was in fact submitted on 29-9-1976 and the submission of the charge-sheet was duly noted by the District Magistrate in his order of the same date recorded in the order sheet and that being so, there could be no occasion for discharging the accused and dropping the proceedings on the basis of a later final report, as alleged, and that in doing so the learned District Magistrate has committed a manifest error of law justifying intervention by this Court in revision.

4. In support of this contention, the petitioner-complainant filed before the learned Sessions Judge certified copy of the order dated 29-9-1976 which reads as hereunder:

Accused Ransur Kharga Chetri produced before me. Shri Indra Bahadur Basnet has moved a bail petition of the accused.

The Police have submitted a charge-sheet TT/S 447/379 IPC under which Section the offence is non-bailable.

The O/C Gyalshing P. S. has also submitted a report that the investigation has been completed and CS is being prepared but is skeptical about the accused's appearance in Court.

I allow the accused to go on bail of Rupees twenty thousand with one surety of like amount. The accused should appear in the Court of the D. M. on 29-10-1976.

The original order in the case-record of the same date, however, reads as under:

Accused Ran Sur Kharga produced before me. Shri Indra Bahadur Basnet has moved a bail petition on behalf of the accused.

The Police have submitted a report stating that charge-sheet Under Section 447/379 IPC is being submitted under which sections the offence is non-bailable. The O/C Gyalshing PS has also submitted a report that the investigation has been completed and CS is being prepared but is skeptical about the accused appearance in Court.

I allow the accused to go on furnishing a bond for Rs. 20,000/- twenty thousand with one surety of like amount. The accused to appear on the 29-10-1976.

5. It appears that the underlined words in the order in the original case record quoted above are not to be found in the certified copy of the order quoted above and furnished by the petitioner before the learned Sessions Judge. The learned District Magistrate in his written explanation to the learned Sessions Judge dated 27-9-1977 stated that due to oversight some words had been carelessly omitted at the time of the typing the copy causing such variances. The learned Sessions Judge, however, could not accept the explanation as satisfactory and observed that he had 'no manner of doubt that some interpolation in the records of the case has been made with ulterior motive of helping the respondent.' We, however, have Jailed to find anything in the record which may justify such a sweeping observation. Neither in the application for revision before the learned Sessions Judge nor in the submissions made by or on behalf of the parties before us, it has been in any way suggested that the learned District Magistrate was in any way motivated and went to the length of interpolating the records of his own Court. There can be no doubt that when there is a dispute as to what happened before a Court or Tribunal, statement of the presiding officer in regard to it should be taken as correct unless the facts and circumstances demonstrate such statement to be false or highly suspicious or show that the pesiding officer was improperly motivated. The principle is well settled and for the authority thereof one may refer to the observations of the Supreme Court in Union of India v. T.R. Varma : (1958)IILLJ259SC . As we have already pointed out, there is nothing on the record to show that the explanation of learned Magistrate was false and nothing has been suggested by any of the parties to the effect that the learned District Magistrate had any motive to fabricate the records by changing the original order and/or the order sheet. Such carelessness in the matter of typing important matters like orders of Courts and granting copies thereof is no doubt unfortunate and deplorable, but is. nevertheless, neither unusual nor impossible. It may be that such things should not happen; but such things do happen.

6. This is sufficient to dispose of this criminal revision. But there are three other points involved in this case to which, in our view, the learned Sessions Judge should have given his anxious advertence before deciding to forward this case to this Court and we would like to deal with those points before parting with this case as they relate to matters of considerable importance and our observations thereon may serve as guiding principles for further cases.

7. The first point relates to the question of limitation for a criminal revision. By a Notification No. 3112-80/AC, dated 6th May, 1950 the period of limitation for filing Appeals, Reviews and Second Reviews has been fixed as two months from the date of delivery of the judgment. In Sikkim there is no period of limitation fixed for filing Criminal Re-visional Application as was the position in the other States in India under the Limitation Act of 1908 which has now been repealed and replaced by Limitation Act of 1963. It may be noted that neither the Act of 1908 nor the Act of 1963 is extended to or adopted in Sikkim. By the Limitation Act of 1963, under Article 131 thereof, a period of ninety days has now been fixed for application to any Court for the exercise of its powers of revision under the Codes of Civil and Criminal Procedure; but, as already noted, no such period was fixed under the Limitation Act, 1908, But even then it became usual practice of several High Courts not to entertain Criminal Re-visional Application made after the period fixed for filing appeals including the time taken for obtaining the copy of judgment and also the time, if any, occupied in prosecuting with due diligence any application to the Court of Session for a reference to the High Court and obtaining such decision.

8. So far as this High Court is concerned there is. as yet, no rule of practice that Criminal Revisions, which are filed after the expiry of the period allowed for appeals, are to be rejected simply on the ground of delay or laches. The admission or non-admission of applications for revision is entirely discretionary and we do not think that it is necessary for us to prescribe any hard and fast rule for the purpose. We may, however, observe that where the law prescribes a period of limitation for any action, a party may come to the Court at the last moment before the expiry of the period allowed under the law and need not be diligent or show his diligence during the period so allowed or prescribed. But where the law allows an action but does not prescribe any period for initiating such action, a party must initiate such action with all due diligence and reasonable promptitude. It is, therefore, trite to say that a revisional application is to be filed within a reasonable period and ordinarily the period allowed for filing appeals may be regarded as the standard for reasonable time within which applications for revision should ordinarily be filed. In our opinion, when an application for revision has been made after the expiry of the period allowed for an appeal, the Court should ask the applicant to give reasons for and to explain the delay and not to entertain the revisional application if the reasons and explanation are not found to be satisfactory or sufficient.

9. In the case at hand, the impugned order was passed on 5-1-1977 while the application for revision was moved before the learned Sessions Judge on 19-5-1977, i. e., after about four and half months after the passing of the impugned order and yet the learned Sessions Judge did not advert to this question of inordinate delay and did not try to ascertain whether there was any sufficient reason for this unusual delay. In our opinion, therefore, the learned Sessions Judge exercised his jurisdiction improperly and without due care and caution.

10. The second point relates to the question of maintainability of Criminal Revisional Application in a police case at the instance of a private party. In Thakur Ram v. State of Bihar : 1966CriLJ700 it has been observed by the Supreme Courtat p. 917 of AIR : at p. 706 of Cri LJ that:

In a case which has proceeded on police report, a private party has really no locus standi. No doubt, the terms of Section 435 ....are very wide....The Criminal Law is not to be used as instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it.

11. Relying on the observations quoted above, it is usually urged that the Supreme Court has put a blanket embargo on the right of private complainant to move in revision. But if one bears in mind, as one should, the earlier as well as the later decisions of the Supreme Court spreading over a period of about twenty five years, it would be clear that no such all embracing embargo was ever intended to be laid down in Thakur Ram's case. The right of a private party to move in Criminal revision has been recognised by the Supreme Court in Bissu Maghoo v. State of Uttar Pradesh : AIR1954SC714 and Dhiren-dra Nath v. Mukunda : 1955CriLJ1299 . Such a right has also been clearly recognised by the Supreme Court in the earlier cases of Stephens v. Nosibolla : 1951CriLJ510 and Harihar v. State of West Bengal : AIR1954SC266 and in the later case of Chinnaswamy v. State of Andhra Pradesh : [1963]3SCR412 . The principle laid down in these cases appears to be that the revisional jurisdiction can be invoked by the private complainant against an order of acquittal; but it can be exercised only in exceptional cases where the interest of public justice requires interference for the correction of manifest illegality or the prevention of gross miscarriage of justice. As to what would constitute such 'exceptional cases' the Supreme Court observed in Chinnaswamy's case : [1963]3SCR412 as here-under:

It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was submitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal.

12. As to the decision of the Supreme Court subsequent to Thakur Ram's case noted above : 1966CriLJ700 , we may refer ,to the decision in Chaganti Kotaiah v. Gogineni Venkateshwara Rao : 1973CriLJ978 , where after considering the earlier decisions in Manendra Pratap v. Sarju Singh : 1968CriLJ665 in Khetrabasi v. State of Orissa : [1970]1SCR880 and in Amarchand Agarwala v. Shanti Bose : 1973CriLJ577 , it has been held that the extent of jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal which may be invoked even at the instance of private parties, is what has been laid down in Chinnaswamy's case : [1963]3SCR412 , noted and quoted above. It is true that in the decision in Thakur Ram's case : 1966CriLJ700 the earlier decisions of the Supreme Court were not considered, it is equally true that the decision in Thakur Ram's case has not also been referred to in any of the later decisions noted above. But in view of the long catena of consistent authorities, both, prior and subsequent to the decisions in Thakur Ram's case it would have been really startling if it was found that in Thakur Ram's case the Supreme Court has laid down a straight-cut and all-comprehensive embargo on the right of private party to invoke the Criminal revisional jurisdiction; but it should be noted that notwithstanding the observations quoted hereinabove,the Supreme Court in that Thakur Ram's case itself stated at p. 917of AIR : at p. 706 of Cri LJ that there may be and are exceptions to the general principle that in a case proceeding on police report, a private party is not to invoke revisional jurisdiction. As we have already noted, all the earlier and later Supreme Court decisions have also laid down that such jurisdiction can and is to be exercised in exceptional cases where there is some glaring defect in the procedure or there is some manifest error on a point of law, resulting in flagrant miscarriage of justice and some illustrations of such exceptional circumstances have been given in Chinnaswamy's case noted above : [1963]3SCR412 .

13. Applying, as we must, these tests to the case at hand we cannot bat hold that it is not a fit case for the invocation of our revisional jurisdiction. We have found no manifest illegality or defect in the proceedings in this case and, as we have already held, the findings of the learned Sessions Judge that some interpolation in the record was made in this case are not Justified.

14. The third point for consideration is that, assuming that the learned Sessions Judge was right in exercising his revisional jurisdiction, whether he should have forwarded the case to this Court under Section 438 of the Cr. P.C. of 1898, or should have ordered further enquiry under Section 436 of the Code. In the case at hand, no charge was framed and, therefore, the release of the accused was a case of discharge within the meaning of Section 436 of the Code and therefore, if the learned Sessions Judge was of opinion that the accused was improperly discharged, he should have sent the case back under Section 436 for further enquiry. There can be no doubt that in a case which attracts the provision of Section 436 the Sessions Judge must act thereunder and not report the case under Section 438. Therefore, even assuming that' the learned District Magistrate went wrong in releasing the accused and in dropping the proceeding, the learned Sessions Judge should not have reported the case to this Court under Section 438, Cr. P.C. but should have ordered further enquiry under Section 436 of the Code. But as we have already pointed out, in our view there does not appear to be any illegality or impropriety in this case to call for interference or revision and as such the question of ordering any further enquiry in this case need not detain us.

15. Borrowing an expression from the decision of the Supreme Court in State Bank of India v. N.S. Money : (1976)ILLJ478SC we would observe that the exercise of the revisional jurisdiction or granting of 'a passport' to the High Court under Section 438, Cr. P. C, 1898 'is not a matter of easy insouciance but anxious advertence,' failure will stultify the scheme of Criminal Revisional Jurisdiction and will flood the High Court 'with cases of lesser magnitude with illegitimate entry' and in our view the learned Sessions Judge failed in this case to advert to the essential requirements for the exercise of criminal revisional jurisdiction.

16. In the result, we decline to accept the reference made by the learned Sessions Judge.

Man Mohan Singh Gujral, C.J.

17. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //