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Pratap and 2 ors. Vs. Ratan Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Miscellaneous Application No. 432 of 1983
Judge
Reported in1985WLN(UC)617
AppellantPratap and 2 ors.
RespondentRatan Lal and anr.
DispositionApplication dismissed
Cases ReferredJagir Singh v. Ranbir Singh (supra
Excerpt:
.....law. pc for challenging the order of the sub-divisional magistrate, but not having approached the sessions judge where he failed to pursuade the sessions judge to reverse the order he could not have maintained a revision and if he could not have done so, then his filing an application under section 482 cr. (5) where under this code an appeal lies but an application for revision has been made to the high court by any person and the high court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the high court may treat the application for revision as a petition of appeal and deal with the same accordingly'.section 482--saving of inherent powers of high court--nothing in this code..........and ors. (supra) this court held that 'when a revision is already pending before the sessions judge, high court cannot entertain the revision.' the case cited by the learned counsel is not at applicable to the present case.11. in soni and ors. v. state of haryana and ors. (supra) the punjab and haryana high court took the view that a concurrent jurisdiction is vested in high court as well as the court of session can exercise the powers under section 397(3) of the code and that if any application of revision is made to either of the court no further application by the same court shall be entertained and that is why a recourse to section 482 is being made, such courts can not be permitted in the garb of an application filed under some other provisions of law. their lordships relied on.....
Judgment:

Vinod Shanker Dave, J.

1. This petition arises out of an order passed by the learned Sessions Judge, Sawaimadhopur, dated November 18, 1983, whereby he dismissed the revision petition preferred against an order of Sub-Divisional Magistrate, Sawaimadhopur in proceedings under Section 145 Cr. PC on application under Section 146 Cr. PC.

2. The facts giving rise to this case are that Ratan Lal non-petitioner moved an application under Section 145 Cr. PC on July 19, 1982 before the Sub-Divisional Magistrate, Sawaimadhopur wherein it was alleged by him that the land mentioned in para 1 of his application popularly known as Beela Hali Kothi is situated in village Kajmana, police station Choth-Ka-Barbada. It is alleged that this land has been in possession of his father since last 50 years and he had been cultivating the same. It was alleged that his father had spent a huge amount for making it cultivable and as prior to it, it was barren land. He alleged that by a mistake in S.Y. 2009 it was wrongly entered in revenue records in the name of Ram Sukha and Pratap. As his father had been cultivating it without any objection, he never knew about it. His father expired in Samvat 2015. Thereafter he had been cultivating the land and stated that the names of the non-petitioners have been wrongly entered into the revenue record. They having nothing to do with this land. It was alleged that in 1976 the Tehsildar, Sawaimadhopur, while doing the mutation wrongly entered the names of Pratap and Ram Sukha against which the petitioner has filed an appeal and the appellate court accepted the same. It was alleged that since after that the petitioner had been depositing the land revenue in his capacity as a khatedar kastkar. Thus the non-petitioners have no right to the land. It was further alleged by the applicant that non-applicant Nos. 2 3 along with one Sukh Deva through whom the applicant had got cultivation done and their names have been entered as such in the revenue record, conspired to throw out the applicant from the land and in order to dispossess him by force stated saying that he will not be permitted to cultivate the land. When the applicant as usual went for cultivation along with Sukh Deva the non-applicants forming an unlawful assembly came there and made an obstruction as a result of which a case was registered against them for offence under Sections 341 & 447 IPC. It was alleged that in khasra No. 193/670 out of 1 bigha and 11 biswas is Rajka and sugarcane were standing in 10 biswas. Thereafter it is alleged that these people are still trying to dispossess him and hence he prayed his possession on the land should be declared and the non-applicants should be restrained for not interfering with the possession. A prayer for appointment of receiver was also made. The applicant along with his complaint filed his own affidavit and the affidavits of Sukh Deva and Sharvan. On receipt of this application alongwith the application for appointment of receiver the Sub-Divisional Magistrate drew a preliminary order on the same day, i.e., July 19, 1982. After receipt of the reply from the parties, the learned Sub-Divisional Magistrate vide his order April 2, 1983 and after hearing the arguments of both the sides ordered the attachment of the standing crop and appointed the Tehsildar, Sawaimadhopur as the receiver of the property in Araji khasra numbers in dispute. A revision petition was filed against the aforesaid order which was finally stayed by the learned Sessions Judge, Sawaimadhopur vide his order, dated April 6, 1983. Arguments were heard in the detail by the learned Sessions Judge who vide his order, dated November 18, 1983 dismissed the revision petition. It is against this order that the present revision petition has been filed by the petitioner.

3. It has been contended by the counsel for the petitioner that both the courts below have not perused the document in true prospective and have not even cared to ascertain whether there was really an apprehension of the breach of peace between the parties. It is submitted that there was absolutely no exigencies for initiating proceedings under Sections 145 and 146 Cr.PC particularly when a regular civil suit is already pending in revenue courts since 1976 and there had been no breach of peace for these 7 years. The petitioner's grievance is that criminal law is not meant to circumvent the judicial process regular civil or revenue courts and it should be slow in appointment of receiver particularly when no interlocutory order has been passed in regular suit which is pending for over 7 years. If the non-petitioner had any grievance then as a law abiding citizen they should have moved an application before the revenue court for appointment of such receiver, but drawing proceedings under Sections 145 and 146 Cr.PC is clearly an abuse of the process of law. It has further been submitted that the non-petitioners are only interested in dispossessing the petitioner through the process of attachment and consequently the appointment of the receiver and has been charging its case from time to time, It is submitted that in the original application of the non-petitioner did not assert any mortgage and came with a case of possession since last 50 years which has now been denied. It has also been contended that the learned courts below have not taken into consideration the girdawari of Samvat 2033 showing redemption of mortgage which gives a long way how that the petitioner are in the peaceful and cultivatory possession of the land in the dispute.

4. On behalf of the respondent it is contended that there is complete bar for filing a second revision under the Code of Criminal Procedure and the provision of Section 482 Cr.PC cannot be invoked so as to circumvent the law. It is submitted that under subsection (2) of Section 397 Cr.PC there is total prohibition against a revision petition of an interlocutory order and in Sub-section (3) of Section 397 Cr.PC there is further prohibition for filing a revision petition by the same party who has filed it before the High Court or the Court of Sessions. It is submitted that it was choice of the petitioner to have invoked the jurisdiction of the Sessions Court or could have come straight to this court under Section 397 Cr.PC for challenging the order of the Sub-Divisional Magistrate, but not having approached the Sessions Judge where he failed to pursuade the Sessions Judge to reverse the order he could not have maintained a revision and if he could not have done so, then his filing an application under Section 482 Cr.PC is only calculated to frustrate the bar contained in Section 397(3) Cr.PC. In supported of his contention the learned counsel has relied on Jagir Singh v. Ranbir Singh and Anr. : 1979CriLJ318 , Chandra Kala Devi v. The State of Bihar and Anr. 1980 Cr.LJ 328, Dassu v. Smt. Manitra 1976 Cr.LJ 1221, Shariffuddin Haji Noor Baksh v. State 1977 Cr.LJ 1054 Shankara Rupa Rao v. State of Andhra Pradesh 1978 Cr.LJ (NOC) 66, M. Chandran v. B. Jagadamma and Anr. 1982 Cr.LJ 100, Soni and Ors. v. State of Haryana and Ors. 1983 (II) Crimes 508 and Swetamber Jain Sampraday v. Digamber Apnay and Ors. 1981 WLN 471. Learned counsel also submits that the two courts after carefully examining the report have come to the conclusion that there is a serious dispute about the possession and have also come to the finding that there is imminent danger of the breach of peace, therefore, thought it proper to order the appointment of a receiver and, therefore, no interference should be made. It is further submitted that an appraisal of the documents cannot be made while considering an application under Section 482 Cr.PC because their is neither abuse of the process of the court nor an interference is called so to ensure the meeting of the ends of justice.

5. Learned counsel for the petitioner has submitted that this court has jurisdiction to entertain an application under Section 482 Cr. PC as the scope under Section 482 Cr. PC is different than the one which is given under the revisional jurisdiction under Section 397 and 401 Cr. CP, so even if there is a bar for invoking the revisional jurisdiction this court can always interfere in an application under Section 482 Cr. PC. Reliance have been placed on Malum Singh v. State of Rajasthan 1976 RLW 523 Bhanwar Lal v. Madan Lal 1977 RLW 174; Ghanshyam v. Smt. Parwati 1977 RLW 492, Mahadeva Lal v. Firm Chunnilal Dalsukh 1976 Cr. L.R. (Raj.) 303 and Heeralal v. State of Rajasthan 1981 RLW 538.

6. Before discussing the various cases I deem it proper to reproduce Sections 397, 399, 401 and 482 Cr. PC.

Section 397--Calling of records to exercise powers of revision--(1) The High court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court and may, when taking for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record;

Explanation--All Magistrates, whether executive or judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and of Section 398;

(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding;

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, on further application by the same person shall be entertained by either or them'.

'Section 399--Sessions Judge's powers of revision--(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401;

(2) Where any proceeding by way of revision is commenced before the Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceedings and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge;

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge here in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.'

Section 401--High Court's powers of revision--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may. in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389 and 391 or on a Court of Sessions by Section 307 and, when the Judges composing the court of Revision are equally divided in manner provided by Section 392;

(2) No order under this section shall be made to the pre-judice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence;

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction;

(4) Where under this code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed;

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly'.

Section 482--Saving of inherent powers of High Court--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

A reading of the aforesaid sections shows that the premises for invoking the revisional jurisdiction is to examine the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court situated in its local jurisdiction. The powers of the Sessions Judge are given in Section 397 Cr. PC where a Sessions Judge enjoys all the powers which the High Court have under Section 401(1) Cr. PC, meaning thereby it may even invoke the powers conferred on a court of appeal by Sections 386, 389, 390 and 391 and on a Court of Sessions by Section 307 Cr. PC. Since such wide powers have been given for finding out the correctness, legality or propriety the legislature in its own wisdom created a bar under Sub-section (3) of Section 397 Cr. PC that no further application by the same person shall be entertained by either High Court or the Sessions Judge, as the case may be, i.e., to say that second revision in the same subject matter by the same party is prohibited. Sub-section (3) of Section 399 Cr. PC also says that where any application for revision is made by or on behalf of any person before the Sessions Judge his decision thereon in relation to such person shall be final and no further proceedings by way of revision at the instance of such person be entertained by the High Court or any other Court. This provision is newly added and is in consonance with the 14th report and 41st report of the Law Commission. The 14th Law Commission in its report in Volumes 2 pages 826 recommended the Sessions Judge to be vested with powers to pass final orders in revision in all matters other than petitions against the order of acquittal and for enhancement of sentences. Similar view was expressed in Volume 1 at page 268 by 41st Law Commission. When the Criminal Law Amendment Bill was placed before the Parliament it was referred to a Joint Select Committee headed by veteran member of the Parliament Shri Akbar Ali and this Joint Select Committee recommended a change in Clauses 407 to 412 of the Bill and suggested as under:

(I) Sessions Judge has been given power to finally dispose of all revision cases taken up by them. This will not only conduce to the convenience of parties but also secure expedition in the disposal of cases;

(II) The order of the Sessions Judge in revision should be final and no further revision by the High Court should be permitted.

This is the back-ground in which Sub-section (3) of Section 397 and Sub-section (3) of Section 399 have been incorporated which clearly mean that the legislature intended to give finality to order of the Sessions Judge and this is why the legislature left it open for the party to invoke the jurisdiction either of the Sessions Judge or of the High Court. Concurrent jurisdiction has been given to both the courts and it is thus provided that if any application has been made by party to one no further application shall be entertained by the other. Otherwise the purpose of concurrent jurisdiction is frustrated. I will now deal with the case cited before me in this respect. In Malam Singh v. State of Rajasthan (supra) in para 15 this court held that the powers under sec 485 stand intact and uneffected by Sub-section (3) of Section 397 and Section 399 Cr. PC. Again in para 18 of the judgment relying its own decision in Mahadev Lal v. Firm Chunni Lal Dilsukh (supra) the court held that though a second revision by a defeated revision petitioner is barred but at the same time the jurisdiction of the High Court to act under Section 482 Cr. PC is available in order to give effect to any order under the Code or to correct any proceeding-; which amount to an abuse of the process of the court or to otherwise secure the ends of justice, anything in the Code not with standing. In Bhunwar Lal v. Madan Lal (supra) the Division Bench of this Court held that the powers under Section 482 Cr. PC 1973 can be exercised in relation to interlocutory orders, once the conditions mentioned in Section 482 are fulfilled and exercise of such powers are not limited or controlled by the bar created by Section 397(2) of the Code, in as much as the two powers are separate and distinct and operate in their respective fields. Their Lordships have considered as many as 20 cases holding different views before coming to this conclusion. They however stressed that inherent powers under Section 482 of the Code have to be exercised with due circumspection and in very rare cases. The inherent powers can be exercised only for any of the three purposes mentioned there in, These powers can neither be invoked in respect of matters covered by specific provisions of the Act, nor they be exercised to over-ride an express prohibitions of law prohibiting interference or in their exercise. In Ghanshyam v. Smt. Parvati (supra) Hon'ble Joshi, J. invoked the jurisdiction under Section 482 Cr. PC because the revisional court, i.e., Court of Sessions had come to the conclusion that an order of attachment and appointment of the receiver was an interlocutory order and thus, this case has no application in the case in hand. In Heera Lal v. State of Rajasthan (supra) this Court dealing with a case under Section 133 Cr. P.C. considered the scope of Section 412 Cr. PC equal to Section 397 Cr. PC and held that 'the mere fact that an order of a Magistrate was unsuccessfully challenged in a petition of revision before a court of Sessions is no ground, proprio vigore, to reject out of hand an application under Section 482. Such an application must be examined to find out if the impugned order made by the Magistrate would result in abuse of the process of the. Court or failure of justice. If so the High Court may legitimately interfere and redress the grievance of the aggrieved party in the exercise of its powers under Section 482. The non-obstante clause in Section 482 makes it quite clear that Section 397 cannot control or limit the operation of Section 482 in any manner.' In Jagirsingh v. Ranbirsingh and Anr. (supra) their Lordships of the Supreme Court while deciding the case considered the scope of Section 397(3). Their Lordships stated that 'in order to cross the hurdle imposed by Section 397(3) it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead of as one directed against the order of the Magistrate. .We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done directly, that would be an evasion of the statute. It is a 'well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance.' (Per Abbott CJ. in Fox v. Bishop of Chester (1824)2B & C 635) 'To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid, doing in an indirect or circuitous manner that which it has prohibited or enjoined' (Maxwell, 11th Edition, page 109). When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Sessions Judge's order'. In Dassu v. Smt. Manitra (supra) the Allahabad High Court took the view that 'Section 482 cannot be invoked for the purpose of circumventing the express provisions under the Code. Thus when a revision petition has been dismissed and no second revision lies under Section 397' In Sharifuddin Haji Noor Baksh v. State (supra) the Delhi High Court also came to the conclusion that petition under Section 482 directed against disposal of a revision is not maintainable. 'A careful scrutiny of the aforequoted provision leads to the conclusion that its ultimate part must be read ejusdem generis with the contemplation that the provisions are to be used to give effect to the orders passed under the Criminal Procedure Code.

7. The dismissal of the revision petition in this case by the learned Add!. Sessions Judge is within the four corners of Section 397 of the Code and instead of giving effect to that dismissal, the ultimate part in Section 482 can not be used as a substitute for the revisional jurisdiction, the exercise whereof by this court is barred by Sub-section (3) of Section 397. The order of the Addl. Sessions Judge has become final in view of Sub-section 397 of the Criminal Procedure Code. In Sunkara Papa Rao v. State of Andhra Pradesh (supra) the Andhra Pradesh High Court held that 'a plain reading of Section 397(3) would show that since an application has already been preferred to the Sessions Judge, by the same petitioner, he is precluded from making a similar application to the High Court'.

8. Where the substance of a petition under Section 482 was to quash the order passed by Sessions Court in revision, the petition would clearly come within the prohibition in Section 397. The name or the nomenclature given to the petition filed in the High Court was immaterial (2) Cri LJ. 288 (SC) followed.

9. Inherent Powers postulated under Section 482 were intended to cover only those cases and those situation which were not provided for by the Code.

10. In Swetamber Jain Sampraday v. Digamber Apnay and Ors. (supra) this court held that 'when a revision is already pending before the Sessions Judge, High Court cannot entertain the revision.' The case cited by the learned counsel is not at applicable to the present case.

11. In Soni and Ors. v. State of Haryana and Ors. (supra) the Punjab and Haryana High Court took the view that a concurrent jurisdiction is vested in High Court as well as the Court of Session can exercise the powers under Section 397(3) of the Code and that if any application of revision is made to either of the court no further application by the same court shall be entertained and that is why a recourse to Section 482 is being made, such courts can not be permitted in the garb of an application filed under some other provisions of law. Their Lordships relied on a decision of the judgment of the Supreme Court by relying upon the decision in Jagir Singh v. Ranbir Singh and Anr. (supra).

12. In my opinion, the reading of the cases cited above and also the other cases which have been cited in Bhanwar Lal v. Madan Lal (supra) as well as Mulam Singh v. State of Rajasthan (supra) I do not find that there is any conflict of opinion between different courts than the cases cited by Mr. Garg in support of his contention that Section 482 cannot be invoked when the second revision is barred, has not made it as burden rule so as to put a total prohibition in invoking the inherent jurisdiction of this court under Section 482 Cr.PC what is said by Delhi, Andhra Pradesh, Punjab and Haryana and even in Jagir Singh v. Ranbir Singh and Anr. (supra) is not that High Court has absolutely no power under Section 482 Cr. PC to invoke its jurisdiction in exceptional and extraordinary cases. In fact in Jagir Singh v. Ranbir Singh (supra) their Lordships of the Supreme Court were considering the case under the old law and the new law wherein a revision was filed before the District Magistrate and then before the Sessions Judge and it was argued before them that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead of one directed against the order of the Magistrate. Thus, their Lordships said could not be done to circumvent the bar of Section 397(3). Their Lordships were not considering the scope of Section 482 Cr. PC in this case. In fact the foundation of both the sections are absolutely different. It is true that the legislature intended to give a finality to the order of the Sessions Judge in case he agrees with the finding of the Magistrate and that is why they permitted a revision to the High Court in case it was an order of reversal. As one opportunity was sought to be provided to the party losing its case, because the revisional court has been given the powers to look into the correctness, legality and propriety of the orders of the inferior court and once a court has judged the correctness, legality or propriety of any finding, sentence or order recorded or passed and also the regularity of the proceedings there should not be further multiplicity and the finality must be attached to it. When ever a finality is attached to a judgment it maybe right or wrong, a legal or illegal it can only be challenged in case there is an error apparent on the face of the record so as to require to secure the ends of justice. When ever an order is passed and confirmed in revision, petition under Section 482 against it can only be filed in case the same is not being implemented or not given effect to or that it is essential to do so to secure the ends of justice but I cannot conceive of a case where it can be said to prevent the abuse of the process of any court. In fact the premises on which sec-lion 482 has been enacted is for seeking interference where it comes to the light that there is an injustice of grave character which is plausible and clear and there is no provision of law by which the aggrieved party can seek relief. The provision of Section 482 Cr. PC has been enacted to give effect to and to act ex debito justitiae to do that real and substantial justice. In fact the principles embodied in the maximum Quando lex aliquid alicur concedit, concedere riderur idquopres ipsaesse non ptest have been given effect to in Section 482 Cr. PC (when the law gives any thing to any one, it gives also all those things without which the thing itself would be unavailable). Thus the use of extraordinary powers under this section have to be used as far as possible in extraordinary cases and not for over-riding an express provision of law nor can when there is another remedy available, where a property has been attached or a receiver has been appointed rightly or wrongly but if the powers of revision have been exercised by choosing one of forums i.e., the court of Sessions or the High Court the revision to another, in my opinion, not being maintainable, the resort to provision of Section 482 is in fact an abuse of the process rather than prevent the abuse of process of court. Even in revisional jurisdiction the court has limited jurisdiction though much wider than Section 482 where the correctness, legality or propriety or irregularity in proceeding can be looked into, the courts are slow to interfere muchless as stated above inherent powers have to be sparingly used. It is true that Section 482 can cover all sort of cases and at any stage of proceedings but at the time cannot be used for circumventing the provisions of law. Thus, when there is a complete bar for the second revision to look into the correctness of the findings of the courts below is nothing but circumventing the provisions of Section 397(3) and 399(3) Cr. PC. Thus witholding with Section 482 is not complete bar yet in cases where both the courts have discussed in judgments reasons for arriving at a conclusion for appointment of receiver to interfere would virtually mean to abuse provisions of Section 482 Cr. PC. On the ground of the aforesaid premises, I have considered the orders of both the court below and do not find it to be an exceptional case which calls for an interference by this court in inherent jurisdiction.

13. The application under Section 482 Cr. PC is, therefore, dismissed.


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