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Har Prasad Vs. Radheylal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision Nos. 495 and 497/1974
Judge
Reported in1975(8)WLN348
AppellantHar Prasad
RespondentRadheylal and ors.
DispositionApplication dismissed
Cases ReferredSunnder Singh v. Inder Sain
Excerpt:
.....or by the sessions judge under section 367(1).;(b) criminal procedure code (new) - section 484(2)--revision application filed after the new code came into force--held, it will be governed by provisions of the new code.;it is obvious that the revisions have been filed in december, 1974 after the new criminal p.c. came into force. admittedly they were not pending when the new code was brought on the statute, they have not been able to satisfy me that any off-shoot of the trial shall be deemed to be a part or in continuation of the trial, and as such the code regulating the trial, would be the one to govern the revision applications. i find it difficult to accept the contention that a revision application is a continuation of the proceedings pending in the trial.;(c) criminal procedure code..........these revision applications arise between the same parties and they are off-shoots of a protracted trial pending in the court of munsif and judicial magistrate first class, alwar.2. har prasad petitioner filed a complaint against radbey lal, bhagwat swaroop and onkar singh rekhawat for various offences on 18.6.65 during the proceedings onkar singh shekhswat was discharged the complaint survives and is continuing against radhey lal and bhagwat swaroop, who are said to be the brothers of the complainant har prasad. on 30.1.1972 charge was framed against both the accused persons under section 454, indian p.c. the complainant examined to many as 40 witnesses on behalf of the prosecution on 29.8.74 the learned trial court examined mangtu ram as p.w. 40. since other witnesses were not present.....
Judgment:

J.P. Jain, J.

1. Both these revision applications arise between the same parties and they are off-shoots of a protracted trial pending in the Court of Munsif and Judicial Magistrate First Class, Alwar.

2. Har Prasad petitioner filed a complaint against Radbey Lal, Bhagwat Swaroop and Onkar Singh Rekhawat for various offences on 18.6.65 During the proceedings Onkar Singh Shekhswat was discharged The complaint survives and is continuing against Radhey Lal and Bhagwat Swaroop, who are said to be the brothers of the complainant Har Prasad. On 30.1.1972 charge was framed against both the accused persons under Section 454, Indian P.C. The complainant examined to many as 40 witnesses on behalf of the prosecution On 29.8.74 the learned trial Court examined Mangtu Ram as P.W. 40. Since other witnesses were not present he closed the prosecution evidence and called upon the accused to enter upon defence. The complainant Har Prased submitted another application asking the Court to examine Ramjilal, Ramesh Chandra and Motilal on behalf of prosecution. This came to be considered on the next date i.e. 26.9.74. This request was opposed by the accused. The learned trial Magistrate rejected the app icat on of the complainant by his order dated 26.9.74. The order dated 29.8.74 and 26.9.74 are subject matter of revision No. 495/1974. These orders were also challenged before the Sessions Judge, Alwar, in revision. The learned Sessions Judge did not accept the contention raised by the complainant, and dismissed the revision application. Hence this revision in this Court.

3. On 28 1174, an application dated 25.11.1974 of the accused to lead secondary evidence was allowed This order is the subject matter of revision No. 497/1974 in this Court.

4. Mr. Tibrewal represents the petitioner in revision No. 496/1974, He conceded that the impugned order are interlocutory in character bat his contention is that as the trial of the case has been pending before the New Code of Criminal Procedure come into force, the old law will govern the matter as it arises from the pending trial and as such the revision application can be entertained and disposed of by this Court. In the other revision application the petitioner is represented by Mr. Kasliwal. His submission is that the order dated 28.11.1974 is not an interlocutory order inasmuch as it finally determined the question about allowing secondary evidence in favour of the accused party He has also argued that the order having arisen from the trial which has been pending since 1965, the old Code of Criminal Procedure will govern the revision application On this basis he urges that the revision application can be entertained and disposed of by this Court under the provisions of the old Code of Criminal Procedure. Another contention that has been raised by him is that power under Section 409, Criminal P.C. are that an appellate Court. The complainant has a vested right by the old Criminal P.C. and and as such an off shoot from the said trial can only be decided under the old Code as the right of the complainant cannot be taken away by implication. He has further contended that in am event this Court should exercise inherent power under Section 482, Criminal P.C. and quash the order dated 28.11.1974 which is manifestly erroneous,

5. The principal point that arises for consideration in this case is as to the interpretation of Section 484(2)(a) of the New Code. It runs to the following effect:

484(2) - Notwithstanding such repeal-

(a) if, immediately before the date on which this Code came into force, there is any appeal, application trial, inquiry, of investigate n pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be in accordance with the provisions of the Code of Criminal Procedure 1898, as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force.

6. The proviso to this Clause (a) is not relevant and as such it has not been extracted. Earned Counsel for the petitioner submits that the trial of the case has been pending since 1965 and the impugned orders having been passed in the proceedings of the trial of the case can be challenged in revision under the provisions of the Old Criminal P.C. On the other hand, Mr. Purohit contended that the present revision applications were not pending on the date, the new Code came into force, and they can not be treated as a part of the trial. As such his submission is that the old Code cannot apply and the revisions will be governed by the new Code only. He has further invited my attention to Section 397(2) which lays down that the powers of revision Conferred by Sub-section (1) of Section 397 shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. According to Mr. Purohit the impugned orders are clearly interlocutory in character. In this behalf Mr. Kaslimal raised a dispute with regard to the order dated 28.11.74. I will deal with it presently.

7. Reference may be made to a decision of this Court in Dhola and Ors. v. the State reported in 1974 W.L.N. 889. The learned Judge dealt with the interpretation of the word 'interlocutory' appearing in Section 397(2) of the New Code. He referred to several cases and came to the conclusion that a proceeding in an as in is sad to be inter-locutory when it is incidental to the principal object of the action namely the judgment The learned Judge observed that an inter-locutory order is one which is passed at some intermediate stage of a proceeding generally to advance a cause of justice for the final determination of the rights between the parties. With great respect, I agree with the view taken by him. The trial of the complaint filed by Har Prasad is pending in the Court and a charge under Section 464, Indian P.C. has been framed against the accused persons namely Radhey Lal and Bhagwat Swaroop. The ultimate object of the trial is either to convict the accused persons if found guilty or to acquit them. The order passed by the learned Magistrate on 23.11.1974 permitting the accused party to It ad secondary evidence is clearly an order passed in the intermediate stage It is not a final determination of the righted between the parties involved in the proceedings. Mr. Kisliwal has not been able to cite any Authority to show that the impugned order can in any manner be termed as final order. I am, therefore, clearly of the opinion that the order under challenge in revision No. 497/1974 is also inter-locutory in character. Section 397(2) referred to above clearly makes in interlocutory order not revisable by this Court or by the Sessions Judge under Section 397(1).

8. It is not disputed that the trial in the original Court is to be regulated by the provisions of the old Code vide Section 484(1)(b) of the New Code. But the learned Counsel for the petitioner have not been able to show as to how the provisions of Old Criminal P.C. shall be applicable to the present revision application as well. It is obvious that the revisions have been filed in December, 1974 after the New Criminal P.C. came into force. Admittedly they were not pending when the new Code was brought on the statute. They have not been able to satisfy me that any offshoot of the trial shall be deemed to be a part of in continuation of the trial; and as such the code regulating the trial, would be the one to govern the revision applications I find it difficult to accept the contention that a revision application is a continuation of the proceedings pending in the trial. I am fortified in my view by a decision in Sunnder Singh v. Inder Sain 1974 Cr. LJ 1361 wherein Lal J. observed;

A proceeding in revision cannot be considered to be in continuation of either the trial pending before the Magistrate or the first revision submitted to the Sessions Judge. A remedy by way of revision is not in he rent or embedded in any manner in the original proceeding instituted before the Magistrate. Therefore, the analogy cannot be drawn from a civil remedy of appeal, as contradistinguished from a special remedy of criminal revision where under no right is reposed in the petitioner to be heard on merit.

9. In this view of the matter I am firmly of the opinion that the provisions of the old Code of Criminal Procedure will not govern the present revision applications and that being so the impugned orders being inter-locutory in character not are revisable under Section 397(2) of the new Code.

10. The contention of Mr. Kasliwal that the complainant bas a vested right in the right of revision which is an off-shoot of the trial pending in the Court of Magistrate is not tenable. The revision is a discretionary remedy. It in true that once a revision is entertained the revising authority can exercise any of the powers c inferred on Court of appeal but for that matter it does not give any vested right to the petitioner. Section 440 of the Old Code and the corresponding Section 403 of the New Code clearly lay down that no party has any right to be heard either personally or by pleader before any Court when exercising the power of revision. It is only, when the Court exercising such power thinks fit, may hear any party either personally or by pleader. it may be noticed here that Section 419 of the old Code laid down that no order under that section could be made to the prejudice of the accused unless he has bad an opportunity of being heard either personally or through pleader in his own defence. This duty no longer finds place in Section 401 or 403 of the N;' Code of Criminal Procedure. I am clear in my mind that the complainant has no vested right as canvassed before me by Mr. Kasliwal.

11. Next contention of Mr. Kasliwal is that I should interfere under my inherent powers given under Section 482, Criminal P.C. (New). This section corresponds to Section 561A of the Old Code of Criminal Procedure. This submission has been vehemently opposed by Mr. Bhimraj Purohit. His argument is that an inter-locutory order has been specifically made not revisable by the New Criminal P.C. and something which has been prohibited under the law should not be set at naught by exercise of the inherent powers. This argument is not without force. That apart, in the circumstances of the case I do not feel inclined to exercise my inherent powers. It is settled law that inherent powers should be sparingly used and only with a view to prevent abuse of the process of court and to secure the ends of justice. If the petitioner is aggrieved by the order dated 28.11.1974 he may seek relief if he has to come in appeal against the final order.

12. In the result I find no force in these revision applications and dismiss them.

13. Both Mr. Kasliwal and Tibrewal pray for leave to appeal to Supreme Court. The leave is refused.


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