C482/1196/2017 of Rakesh Lal Vs State Of Uttarakhand AND ANOTHER

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Criminal Misc. Application No. 1196 of 2017 (Under Section 482 Cr.P.C.)

.....….…… Applicant

Rakesh Lal

versus

State of Uttarakhand and another ………. Respondents

Mr. Prashant Khanna & Mr. B.S. Koranga, Advocates for the applicant. Mr. Sidhartha Srivastava, Brief Holder for the State.

U.C. Dhyani, J. (Oral)

By means of present application under Section 482 of Cr.P.C., the applicant seeks to quash the order dated 01.9.2017, passed by learned Revisional Court/Sessions Judge, Pauri Garhwal, in Criminal Revision No.9 of 2017, Jagdish Lal vs. Rakesh Lal & others.

2. Order dated 01.9.2017 is in the teeth of present criminal revision in which the Revisional Court has passed the following order:-

“This Criminal Revision is allowed. The impugned order dated 30.11.2016 is set-aside. The application paper no.A-3 moved as per provisions of Section 156 (3) of the Cr.P.C., shall stand allowed. S.H.O. Police Station Srinagar, District Pauri Garhwal is directed to register the case and investigate the matter in the light of Application Paper No.A-3.”

3. Earlier, application under Section 156(3) of Cr.P.C., filed by the complainant, before the Trial Court, was dismissed. Aggrieved against the same, criminal revision was preferred before the Session Judge, who passed the above noted order (order impugned). the complainant, before the Trial Court, was dismissed. Aggrieved against the same, criminal revision was preferred before the Session Judge, who passed the above noted order (order impugned).

4. The challenge to the order impugned has been thrown by learned counsel for the applicant, on the ground that the learned Revisional Court, instead of remanding the matter, has reversed the finding of learned Magistrate in the criminal revision. learned counsel for the applicant, on the ground that the learned Revisional Court, instead of remanding the matter, has reversed the finding of learned Magistrate in the criminal revision.

5. Application under Section 156 (3) Cr.P.C., was dismissed. Learned Revisional Court has reversed the same and, therefore, allowed the criminal revision. Instead of directing the Trial Court to pass fresh order, in accordance with law, learned Revisional Court himself has directed S.H.O. of Police Station, Srinagar to register the case and investigate the matter. Learned Revisional Court has reversed the same and, therefore, allowed the criminal revision. Instead of directing the Trial Court to pass fresh order, in accordance with law, learned Revisional Court himself has directed S.H.O. of Police Station, Srinagar to register the case and investigate the matter.

6. Learned counsel for the applicant placed decision of Hon’ble Apex Court in Kumar & others vs. Karnataka Industrial Cooperative Bank Limited & another reported in (2012) 4 Supreme Court Cases (Cri) 72, in which, in para-6, the Hon’ble Apex Court observed as below:-

6. The revisional jurisdiction of High Court is conferred by the provisions of Section 397 read with Section 401 of the Code of Criminal Procedure. While Section 397 empowers the High Court to call for the record of any proceeding before any inferior criminal Court within its jurisdiction to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order and such power extends to suspension of execution of any sentence or order and also to release the accused on bail, under Section 401 (3) CrPC there is an express bar on the High Courts to convert finding of acquittal into one of conviction. While the revisional power under the Code would undoubtedly vest in the High Court the jurisdiction to set-aside an order of acquittal, the same would not extend to permit the conviction of the accused. The High Court may, however, order retrial or rehearing of the case, as Section 401 of the Code of Criminal Procedure. While Section 397 empowers the High Court to call for the record of any proceeding before any inferior criminal Court within its jurisdiction to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order and such power extends to suspension of execution of any sentence or order and also to release the accused on bail, under Section 401 (3) CrPC there is an express bar on the High Courts to convert finding of acquittal into one of conviction. While the revisional power under the Code would undoubtedly vest in the High Court the jurisdiction to set-aside an order of acquittal, the same would not extend to permit the conviction of the accused. The High Court may, however, order retrial or rehearing of the case, as

may be, if so justified. (Vide Sheetala Prasad vs. Sri Kant (2010) 2 SCC 190 :(2010) 2 SCC (Cri) 1002 and Johar vs. Mangal Prasad (2008) 3 SCC 423 : (2008) 2 SCC (Cri) 89.) In view of the above we do not see how the orders of the High Court dated 16.12.2010, Karntaka Industrial Coop. Bank Ltd. vs. Kumar, Criminal Revision Petition No.2250 of 2010, decided on 16.12.2010 (KAR) and 22.3.2011 Karnataka Industrial Coop. Bank Ltd. vs. Sudha Vasudev Pinchakan, Criminal Revison Petition No.2158 of 2009, order dated 22.3.2011 (KAR) converting the acquittal of the appellant-accused to one of conviction and the sentences imposed on each of them can be sustained in law.

7. It is therefore, the submission of learned counsel for the applicant that even while allowing the criminal revision, the matter was required to be remitted back to the Trial Court for passing fresh order, in accordance with law. Learned counsel for the applicant also relies upon Nirmal Das @ & others vs. State of Uttaranchal and another, reported in 2010 (1) N.C.C. 41. applicant that even while allowing the criminal revision, the matter was required to be remitted back to the Trial Court for passing fresh order, in accordance with law. Learned counsel for the applicant also relies upon Nirmal Das @ & others vs. State of Uttaranchal and another, reported in 2010 (1) N.C.C. 41.

8. This Court is in agreement with the aforesaid submission of learned counsel for the applicant. learned counsel for the applicant.

9. In the instant case, application under Section 156 (3) Cr.P.C.,

was dismissed, which order was overruled in the criminal revision, therefore, instead of directing registration of FIR, as has been done in the instant case, the Revisional Court ought to have directed the Magistrate concerned to make further enquiry into the complaint and pass appropriate order, according to law. revision, therefore, instead of directing registration of FIR, as has been done in the instant case, the Revisional Court ought to have directed the Magistrate concerned to make further enquiry into the complaint and pass appropriate order, according to law.

10. The matter is, therefore, remitted to the learned Revisional Court to give suitable direction to the Magistrate concerned in accordance with law. Order impugned dated 01.9.2017, passed by learned Revisional Court is, accordingly, set-aside. Court to give suitable direction to the Magistrate concerned in accordance with law. Order impugned dated 01.9.2017, passed by learned Revisional Court is, accordingly, set-aside.

11. Application under Section 482 of Cr.P.C., thus stands disposed of. disposed of.

A.kaur

(U. C. Dhyani, J.)

07.10.2017