Allowed

Vipin Kumar Agrawal v. State of U.P. and 3 Others

Allahabad HC18 Dec 2018A227/6601/2018

Case brief

AI extract

What is this about?

Challenge under Article 227 to a Sessions Judge's order allowing a revision and setting aside a Magistrate's orders under Sections 145(1)/146(1) Cr.P.C. when a revision from the same order had already been decided by the High Court. The High Court held the order a nullity for want of jurisdiction under Section 397(3) Cr.P.C., found gross abuse of process and imposed costs.

What did the court decide?

Petition allowed with costs of Rs.25,000/-; impugned order dated 18.08.2018 set aside; property to stand attached in terms of the Magistrate's order dated 16.11.2017 and Case no.14 of 2017 decided per

Vipin Kumar Agrawal Vs State of U.P. and 3 Others — Contempt of Court | Allahabad HC (2018)

Reserved

Court No. - 53

A.F.R.

Case :- MATTERS UNDER ARTICLE 227 No. - 6601 of 2018

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Petitioner :- Vipin Kumar Agrawal Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Jitendra Singh, Man Bahadur Singh Counsel for Respondent :- G.A., Sheshadri Trivedi

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Hon'ble J.J. Munir,J.

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This matter under Article 227 of the Constitution has been filed by the petitioner, Vipin Kumar Agrawal praying for an order or direction to set aside the impugned order dated 18.08.2018 passed in Criminal Revision no.195 of 2017, Amit Kumar Agrawal vs. Vipin Kumar Agrawal and others, passed by the learned Sessions Judge, Fatehpur.

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Heard Sri Man Bahadur Singh, learned counsel for the petitioner, Sri Bharat Singh appearing on behalf of Respondent No.4 and Sri J.B. Singh, learned AGA for the State.

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Proceedings under Section 145 Cr.P.C. were initiated on the basis of a police report dated 07.11.2017 by the Sub-Divisional Magistrate, Khaga, Fatehpur, under Section 145 Cr.P.C., that were registered as Case no.14 of 2017. Respondent no.4, Amit Kumar Agrawal was arrayed as the second party to those proceedings. It appears that there was also in the police report a recommendation to attach property pending proceedings, citing emergency to do so, in order to prevent immediate breach of peace. In the said proceedings, the Sub-Divisional Magistrate proceeded to pass two orders simultaneously on 16.11.2017, one under Section 145(1) Cr.P.C. being a preliminary order requiring parties to put in their written statement, and the other being an order of attachment pending proceedings, on ground of urgency under Section 146(1) Cr.P.C. In compliance with the latter order dated 16.11.2017, the Station House Officer, Kishanpur took over custody of the property in dispute, which is a residential property, and, thereafter, handed over possession of the same

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to a Supurdgar, one Ankush Agrahari, in the presence of witnesses on 16.11.2017. Thus, on and after 16.11.2017, and for a considerable period of time, the property in dispute was in custodia legis.

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It is not the validity of proceedings under Section 145(1) Cr.P.C., or the order of attachment under Section 146(1) Cr.P.C., passed pending proceedings, that is the subject matter of issue in this petition. It is concluded by an order of this Court dated 02.01.2018, passed in Criminal Revision no.4016 of 2017, that proceedings before the Magistrate under Section 145/ 146 Cr.P.C. have to run their full course and reach a logical conclusion, in one or the other manner known to law. However, in whatever manner it has happened, the learned Sessions Judge by his impugned order dated 18.08.2018 has allowed Criminal Revision no.195 of 2017 preferred by respondent no.4, and set aside the orders of the Magistrate dated 16.11.2017 passed under Section 145(1)/ 146(1) Cr.P.C., that have already been upheld by this Court on 02.01.2018 in Criminal Revision no.4016 of 2017, also preferred by respondent no.4. Thus, the learned Sessions Judge has set aside orders of the Magistrate, that have already been upheld by this Court, and that too, on a revision by the same party, who approached both courts simultaneously, against the same order of the Magistrate, at different points of time.

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When this petition came up for admission on 10.09.2018, this Court noticing these conflicting orders, passed by the learned Sessions Judge and this Court, against the same impugned order of the Magistrate, at the instance of the same party, proceeded to pass the following order:

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“By two orders passed simultaneously on 16.11.2017 in Case No. 14 of 2017, a preliminary order under Section 145(1) Cr.P.C. was passed by the Sub Divisional Magistrate, Khaga, District Fatehpur and another order was passed under Section 146(1) Cr.P.C. ordering attachment of the property looking to the urgency involved that was attached and ordered to be handed over to a Supurdgar. Property was handed over to the Supurdgar in compliance of the order dated 16.11.2017 on 20.11.2017 as would appear from a perusal of the Fard Supurdaginama, annexed as Annexure No. 6 to the affidavit.

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Aggrieved by the said orders respondent No. 4 Amit Kumar Agarwal

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preferred Criminal Revision No. 195 of 2017 to the learned Sessions Judge, Fatehpur on 4.12.2017 as appears from a perusal of the memorandum of revision and the relative order sheet. The said revision was admitted to hearing on 4.12.2017 but no interim order was passed and various dates were fixed in the revision aforesaid before the learned Sessions Judge after 4.12.2017 spanning across the remaining length of the year 2018 until 18.8.2018, when the revision was allowed by the learned Sessions Judge and the orders dated 16.11.2017 passed by the Magistrate were set aside. Concealing all these facts about a pending revision from this Court, respondent no. 5 (sic 4) filed Criminal Revision No. 4016 of 2017 to this Court from the order dated 16.11.2017 passed under Section 145 Cr.P.C. and also the one passed under Section 146(1) Cr.P.C. that were already under challenge before the Sessions Judge in Revision No. 195 of 2017 filed on 4.12.2017. This court summarily disposed of the revision without interfering with the impugned orders dated 16.11.2017 with a direction that proceedings under Section 145 Cr.P.C. be concluded within a period of four months. The said proceedings apparently were not concluded in compliance of this Court's order dated 2.1.2018 passed in Criminal Revision No. 4016 of 2017, and, on the other hand, the learned Sessions Judge proceeded to decide the revision filed before him from the same order dated 16.11.2017 that has been upheld by this Court by means of the impugned order dated 18.8.2018 and set aside the same.

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Let comments be called from the learned Sessions Judge, Fatehpur to explain how he proceeded to decided (sic decide) the revision from an order reversing it that had already been upheld by this Court in Criminal Revision No. 4016 of 2017 decided on 2.1.2018. The comments of the learned Sessions Judge must be made available to this Court within a period of one week next.

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Issue notice to opposite party no. 4 and the learned counsel appearing on behalf of opposite party no. 4 before the learned Sessions Jude to appear in person on 19.9.2018.

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Notice shall be caused to be served by the Registrar General through the Sessions Judge, Fatehpur upon the learned counsel appearing for opposite party no. 4 and upon opposite party no. 4 also, clearly indicating that they are required to appear in person on 19.9.2018.

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The comments of the learned Sessions Judge as indicated above shall also be called for by the Registrar General in terms of this order and placed on record well before the next date fixed.

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List on 19.9.2018.

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Until further orders, operation of the impugned order dated 18.8.2018, passed by the learned Sessions Judge, Fatehpur in Criminal Revision No. 195 of 2017 (Amit Kumar Agarwal vs. Vipin Kumar Agarwal and another), shall remain suspended.”

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It may be placed on record that nothing of moment happened during the proceedings on 19.09.2018, inasmuch as, by that date, the report of the learned Sessions Judge, Fatehpur reported to be received in the office, was not available on record. It must, however, be also recorded that the two learned Advocates from the District Court, Fatehpur, Sri Anil

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Kumar Singh and Sri Rakesh Srivastava did appear in Court and filed a personal affidavit jointly, along with an exemption application. Besides the two learned counsel from the District Court, respondent no.4, Amit Kumar Agrawal also appeared before the Court. However, in the absence of the report of the learned Sessions Judge being available to the Court, the matter was adjourned to the following day i.e. 20.09.2018. On 20.09.2018, this Court considered the explanation offered by the two learned Advocates from the District Court, Fatehpur, who had filed Criminal Revision no.195 of 2017 before the Sessions Judge, Fatehpur, since allowed, by the impugned order dated 18.08.2018. The explanation of the learned Sessions Judge vide his report dated 15.09.2018, that was submitted through the Registrar General, was also considered and the following order was made:

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“Heard Sri Satish Trivedi, learned Senior Counsel assisted by Sri Sheshadri Trivedi, learned counsel appearing for the two appearing District Court Advocates, Sri Anil Kumar Singh and Sri Rakesh Srivastava.

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On a perusal of the personal affidavit filed by Sri Anil Kumar Singh and Sri Rakesh Srivastava, Advocates, District Court, Fatehpur who are present in Court again today. This (sic this) Court is satisfied that there is good explanation on their part. So far as proceedings of the revision before the learned Sessions Judge filed by them is concerned, it is stated by them that the revisionist had taken away the brief from them before the revision was heard and disposed of by the learned Sessions Judge and, therefore, they had no instructions left in the matter requiring them to appear any further.

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It has been submitted by Sri Trivedi that when the matter was decided by the learned Sessions Judge, Sri Anil Kumar Singh and Sri Rakesh Srivastava, Advocates were not appearing in the matter as the learned counsel. The fourth respondent who was the revisionist before the Sessions Judge had engaged some other counsel by that time.

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As such, the explanation offered by Sri Anil Kumar Singh and Sri Rakesh Srivastava, Advocates, District Court Fatehpur is accepted and their personal presence is no longer required.

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The report of the learned Sessions Judge has been placed on record by the office. Prima facie this Court finds that respondent no.4, Amit Kumar Agrawal concealed the fact from the learned Sessions Judge that he had pending revision before the Sessions Judge filed a revision from the same order of the Magistrate to this Court which came to be dismissed, a fact well within the knowledge of respondent no.4.

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Respondent no.4 will explain his conduct in this regard within four days next and will remain present again on 25.09.2018 though he is free to go today.

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Put up this matter again on 25.09.2018 for further hearing.”

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The matter was taken up again on 25.09.2015 and granting some further time to the petitioner to file a rejoinder affidavit, the case was adjourned to 28.09.2018, requiring respondent no.4 to remain present again. The matter was heard on 28.09.2018 finally and orders were reserved.

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This Court has dealt with the explanation and stand of Sri Anil Kumar and Sri Rakesh Srivastava, Advocates, District Court, Fatehpur vide order dated 20.09.2018. The stand of the two learned Advocates from Fatehpur that is common in their personal affidavit filed jointly, has been accepted by this Court by the order last mentioned. All that needs to be added is that the conduct of two learned counsel is not blameworthy in any manner, as respondent no.4, their client, had withdrawn instructions from them when the revision came up for determination before the learned Sessions Judge on 18.08.2018. It is said in this regard by the two learned Advocates in paragraphs 6, 7 and 8 of their personal affidavit that the revisionist instructed them that he did not want to press the criminal revision, and for the purpose, they may file an application to withdraw the same. It is said, in paragraph 6 specifically, that the revisionist took back his file from the two Advocates from Fatehpur, on 11.12.2017. However, in accordance with his instructions, the two Advocates filed a withdrawal application in Criminal Revision no.195 of 2017 on 12.12.2017, praying that the revision be dismissed as not pressed. The said withdrawal application was numbered as paper no. 11-Ba, but was not decided by the learned Sessions Judge. Thereafter, the two Advocates had no instructions in the matter, the file being taken away on 11.12.2017 by respondent no.4, but they did act according to the limited obligations they owed to the fourth respondent and the Court, even thereafter, which will be considered while dealing with the explanation, and the respective stands of the learned Sessions Judge, and the fourth respondent.

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No doubt the two learned counsel had filed the revision under reference to the learned Sessions Judge from the orders of the Magistrate

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dated 16.11.2017, but they had done so on 04.12.2017, that is much before respondent no.4 filed a second revision from the same order of the Magistrate to this Court, being Criminal Revision no.4016 of 2017 on 12.12.2017. The stand taken by the two learned Advocates of the District Court, Fatehpur, on being put to the fourth respondent, in the presence of his counsel, was not disputed. Thus, it is evident that on 04.12.2017 when the two Advocates from Fatehpur filed Criminal Revision no.195 of 2017, before the Sessions Judge, Criminal Revision no.4016 of 2017 had not come to be filed before this Court. The learned counsel appearing for the respondent no.4, and the said respondent, who has been present throughout the various dates of hearing, has not disputed the stand of the two learned Advocates from Fatehpur, that they did not have instructions in the matter when the revision was heard and disposed of by the learned Sessions Judge on 18.08.2018. For all these reasons, this Court in the order dated 20.09.2018 has found the conduct of the two Advocates from Fatehpur, not blameworthy.

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Now, taking up the explanation offered by the learned Sessions Judge, Fatehpur, in proceeding to decide Criminal Revision no.195 of 2017 by the impugned order dated 18.08.2018 against the Magistrate's order of 16.11.2017, that had already been upheld by this Court vide order dated 02.01.2018 passed in Criminal Revision no.4016 of 2017, the crux of his explanation apparent from his comments dated 15.09.2018 is that he was never informed by either of the parties, or the appearing counsel, about the institution of a criminal revision from the same order as the one impugned before him, also before this Court, or about the order dated 02.01.2018 passed in the revision last mentioned by this Court. The relevant part of the learned Judge's explanation, in his own words (in Hindi vernacular), reads:

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“ ;g rF; vknj lfgr ekuuh; mPp U;k;ky; ds laKku esa yk;k tkuk vko';d gS fd u rks iujh{k.kdrkZ vkSj u gh izfri{kh la[;k 01 ,oa 02 }kjk fdlh Hkh Lrj ij ekuuh; mPp U;k;ky; ds le{k nkf.Md iqujh{k.k lafLFkr gksus o ekuuh; mPp U;k;ky; }kjk nkf.Md iqujh{k.k

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la[;k 4016 lu 2017 esa ikfjr vkns'k fnukafdr 02-01-2018 ds lUnHkZ esa fyf[kr vFkok ekSf[kd :i ls voxr djk;k x;kA ;fn v/kksgLrk{kjh ds laKku esa ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k vkrk rks v/kksgLrk{kjh }kjk vkns'k fnukafdr 18-08-2018 dnkfi ikfjr gh ugha fd;k tkrkA ”

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In regard to the stand taken by the learned Sessions Judge, it would be profitable to revert to the stand taken by the two learned Advocates from the District Court, Fatehpur, who filed the revision before the Sessions Judge in their personal affidavit, already examined in the context of consideration of their explanation. In the said affidavit, paragraphs 4 to 11 read as under:

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“4. That it is submitted that criminal revision No.195 of 2017 (Amit Kumar Agrawal Versus Vipin Kumar Agrawal and Others) was filed by the applicants in pursuance of instructions received from Amit Kumar Agrawal, arrayed as Respondent No.4 in the above noted petition, in the court of the Learned Session Judge, Fatehpur against the order dated 16.11.2017 passed by the Sub Divisional Magistrate, Khaga Fatehpur in proceedings under sections 145 (1) and 146 (1) of the Cr.P.C.

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5. That however no interim order was granted by the Learned Sessions Judge in Criminal Revision No. 195 of 2017.

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6. That the revisionist in Criminal Revision No. 195 of 2017 did not want to press the said Criminal Revision and instructed the Applicants to file an application for withdrawing the Cri9minal Revision in the court of the Learned District Judge, Fatehpur and also took back his file from the applicants on 11.12.2017. The receipt of the file of Criminal revision no.195 of 2017 by the revisionist is being filed herewith and marked as Annexure No.1 to this affidavit.

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7. That accordingly, upon the instructions of the revisionist Amit Kumar Agrawal, an application was filed by the Applicants on 12.12.2017 in Criminal Revision no. 195 of 2017, pending in the court of the Learned Sessions Judge, Fatehpur, praying for withdrawing the aforesaid Criminal Revision as not pressed. Certified copy of the withdrawal application filed in Criminal Revision no. 195 of 2017 is being filed herewith and marked as Annexure No.2 to this affidavit.

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8. That the aforesaid withdrawal application was numbered as 11-Ba but was not decided by the Learned Sessions Judge, Fatehpur, and was kept pending though two dates, 12.12.2017 and 13.12.2017 were fixed.

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9. That on 10.01.2018 the case was sent to the Lok Adalat for deciding the withdrawal application 11-B. However on all the dates, from 10.02.2018 till 11.06.2018, no one appeared on behalf of the revisionist in either the Lok Adalat or in the court of the Learned Sessions Judge, Fatehpur. On 29.06.2018, the revisionist was present in the court and was directed by the Learned Court below to appear through his counsel and thereafter an order was passed directing to take steps to serve the opposite parties and next date was fixed for 26.07.2018.

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10. That on 26.07.2018, the applicants were not present before the Learned Sessions Judge, Fatehpur but a perusal of the order sheet reflects that a Vakalatnama 12-Ba was filed on behalf of the Opposite Party No.1. Accordingly, the Learned Sessions Judge, was pleased to direct the4 case to be put up for hearing on 14.08.2018 but the order sheet does not show any order passed on the said date. Certified copy of the order sheet of Criminal Revision no. 195 of 2017 is being filed herewith and marked as Annexure No.3 to this affidavit.

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11. That a further perusal of the aforesaid order sheet shows that the aforesaid criminal revision no.195 of 2017 was allowed by the Learned Sessions Judge, Fatehpur on 18.08.2018.”

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In the opinion of this Court, it is also necessary to do a juxtaposition of the stand taken by the fourth respondent, in regard to facts relating to proceedings before the learned Sessions Judge and this Court, with that of the stand taken by the learned counsel appearing for the fourth respondent before the Sessions Judge, as set out in the last foregoing paragraph. The relative stand of the fourth respondent is disclosed in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of his personal affidavit dated 18th September, 2018, which is extracted below:

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“4. That criminal revision No.195 of 2017 (Amit Kumar Agrawal Versus Vipin Kumar Agrawal and Others) was filed by the deponent, in the court of the Learned Session Judge, Fatehpur against the order dated 16.11.2017 passed by the Sub Divisional Magistrate, Khaga Fatehpur in proceedings under sections 145 (1) and 146 (1) of the Cr.P.C.

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5. That however no interim order was granted by the Learned Sessions Judge in Criminal Revision No.195 of 2017.

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6. That it so transpired that Sri Harsh Kumar Srivastava Advocate advised the deponent to file a withdrawal application in criminal revision no. 195 of 2017 and to challenge the order dated 16.11.2017 passed by the Sub Divisional Magistrate Khaga, Fatehpur in this Hon'ble Court.

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7. That the deponent, acted upon the said legal advice and instructed his counsels to file an application with withdrawing the Criminal Revision in the court of the Learned Sessions Judge, Fatehpur and also took back his file from his counsels on 11.12.2017.

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8. That accordingly, as instructed by the deponent, an application was filed on 12.12.2017 in Criminal Revision no. 195 of 2017, pending in the court of the Learned Sessions Judge, Fatehpur, praying for withdrawing the aforesaid Criminal Revision as not pressed. Copy of the withdrawal application filed in Criminal Revision no. 195 of 2017 is being filed herewith and marked as Annexure No.1 to this affidavit.

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9. That the deponent had withdrawn his instructions from his counsels, Anil Kumar Singh Advocate and Rakesh Srivastava Advocate and after having filed the withdrawal application, the deponent was under the bonafide impression that his revision has been dismissed as not pressed.

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10. That mean while, Criminal revision no. 4016 of 2017 was filed in this Hon'ble Court on behalf of the deponent. However, the fact about the pendency of criminal revision no. 195 of 2017 in the court of learned Sessions Judge, Fatehpur, or the fact about the filing of the withdrawal application in the said Criminal Revision was not disclosed in the affidavit of criminal revision no. 4016 of 2017 although the deponent had duly informed his counsel, Sri Harsh Kumar Srivastava Advocate, Allahabad, High Court about the said fact.

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11. That moreover the deponent had been informed that this Hon'ble Court had directed the Learned Sessions Judge to decide the Criminal Revision pending before it expeditiously and the fact that the Criminal Revision had been dismissed on merits by this Hon'ble Court was not informed or explained to the deponent by his counsel.

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12. That the deponent was also under the bonafide impression that the Criminal Revision no. 195 of 2017 had been dismissed by the Learned Sessions Judge, in pursuance of his withdrawal application.

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13. That since the deponent had withdrawn his instructions from his counsels in Criminal Revision no. 195 of 2017, hence he had no knowledge about the further proceedings in the said criminal revision as well as the fact that the said criminal revision subsequently came to be allowed by the Learned Sessions Judge, Fatehpur.”

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It appears from a comparative reading of the two affidavits, that is to say, the personal affidavit of the fourth respondent and that of the two learned counsel originally engaged to file the revision on his behalf to the Sessions Judge from the order dated 16.11.2017 passed by the Magistrate, that the fourth respondent, was in haste to seek relief, about which again this Court would have something to say, while dealing with the explanation and stand of the fourth respondent. But, it clearly emerges that the proceedings before the Sessions Judge, were left to drift by the fourth respondent, withdrawing instructions from his counsel to pursue the matter on 11.12.2017 when he took away his papers from the learned counsel, with instructions alone to withdraw the criminal revision filed before the Sessions Judge. The learned counsel appearing in the matter made an application to withdraw the revision on 12.12.2017, as appears from the consistent stand of the fourth respondent, and the learned counsel, appearing for him, whose instructions he had withdrawn. It appears that the learned counsel being left with no papers with them, and bereft of instructions, could do little in the matter. A copy of the withdrawal application filed by the counsel seeking withdrawal is on

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record as Annexure 2 to the personal affidavit filed by them, bearing paper no. 11-Ba. A perusal of their affidavit shows that the revision appeared on two dates before the learned Sessions Judge, post filing of the withdrawal application, once on 12.12.2017 when the said application was made, and again on 13.12.2017. Thereafter, on 10.01.2018, the revision was sent to the Lok Adalat for orders on the withdrawal application, where the case remained pending from 10.02.2018 to 11.06.2018. However, no one appeared before the Lok Adalat, or before the Sessions Judge. On 29.06.2018, the revisionist (the fourth respondent here) was present in Court and was directed by the learned Court below to appear through his counsel. An order was made ordering him to take steps, and scheduling the next date of hearing to 26.07.2018. To the extent that it is said in paragraph 9 of the affidavit of the learned counsel, that on 29.06.2018, the revisionist (the fourth respondent here) was present in Court, and was directed by the learned Sessions Judge to appear through his counsel, appears to be inaccurate, and not borne out by record, inasmuch as, the relative order sheet dated 29.06.2018 shows that on the said date, counsel for the revisionist (the fourth respondent here) appeared, and it was the learned counsel, who was directed to take steps.

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It also appears from the order sheet that the stand taken by the learned counsel originally instructed by the fourth respondent, in his personal affidavit is that on 26.07.2018 no one appeared on behalf of the revisionist (the fourth respondent here) before the learned Sessions Judge, but a perusal of the order sheet reflects that a Vakalatnama bearing paper no. 12-Ba, was filed on behalf of the present petitioner, arrayed before the learned Sessions Judge as opposite party no.1. The learned Sessions Judge, accordingly, adjourned the case to 14.08.2018, posting it for hearing. It is a bit disconcerting that there is no record in the order sheet, indicating any hearing or proceedings, undertaken on 14.08.2018 before the learned Sessions Judge. The order sheet shows that judgment was pronounced by the learned Judge on 18.08.2018, allowing the revision by

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the order impugned.

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Reading the explanation offered by the learned Sessions Judge, it appears that the matter being a criminal revision, and no one appearing on behalf of any party to apprise him of facts or proceedings before this Court, he went through the record and allowed the revision. In this course of proceedings, the learned Sessions Judge, has acted with material irregularly and with some illegality. The patent irregularity or illegality is that on the date fixed for hearing on 14.08.2018, no proceedings find record. Even if the parties did not appear, the learned Sessions Judge had to write an order dated 14.08.2018, the date fixed by him vide his earlier order dated 26.07.2018, and in that order indicate in what manner he considered the revision; that is to say, by hearing parties and perusing the papers and record, or in the absence of parties by perusing the papers, the order impugned before him, and any other record, if available before him. No doubt a criminal revision can and must be disposed of on merits, even if parties do not appear, despite opportunity, after perusing the order impugned and the record of the case. Possibly, the learned Sessions Judge has adopted this course of action in absence of any party appearing, including the present petitioner or the fourth respondent. It is not discernible whether the State were heard or not. Here, it may be profitable to refer to the decision of the Supreme Court in Madan Lal Kapur vs. Rajiv Thapar and others, (2007) 7 SCC 623 , wherein the obligation of a revisional court to decide on merits, has been approved as the only lawful course of action by their Lordships, in the following words:

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4. The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits. Only on that ground the appeal deserves to be allowed.

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5. Thus in Bani Singh v. State of U.P. [(1996) 4 SCC 720 : 1996 SCC (Cri) 848], a three-Judge Bench of this Court held that a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel is present, the court should decide the appeal on merits. If the appellant is in jail the court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent.

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6. In Bani Singh v. State of U.P. [(1996) 4 SCC 720 : 1996 SCC (Cri) 848]

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the Supreme Court overruled its earlier decision in Ram Naresh Yadav v. State of Bihar[AIR 1987 SC 1500 : 1987 Cri LJ 1856] in which it was held that a criminal appeal can be dismissed for default.

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7. In Parasuram Patel v. State of Orissa [(1994) 4 SCC 664 : 1994 SCC (Cri) 1320] the Supreme Court held that a criminal appeal cannot be dismissed for default.

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8. In our opinion the same reasoning applies to criminal revisions also, and hence a criminal revision cannot also be dismissed in default.”

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This Court is, thus, of opinion that the learned Sessions Judge was not apprised of the order passed by this Court in Criminal Revision no.4016 of 2017, decided on 02.01.2018, when he passed the order impugned dated 18.08.2018 by any party to the proceedings, or informed of it by any other source. He decided in ignorance of the order of this Court dated 02.01.2018. But, it must be recorded that the learned Sessions Judge ought to have acted with more astuteness and care about the record, which would have drawn his attention to the withdrawal application filed on behalf of respondent no.4, the revisionist before him. Also, the learned Sessions Judge ought to have recorded an order on 14.08.2018, indicating in what manner he heard or considered the revision, before passing the order impugned dated 18.08.2018.

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The explanation offered by respondent no.4, through his personal affidavit, has been extracted in substantial part hereinbefore. A perusal of paragraph 10 of the personal affidavit filed by the fourth respondent shows that the assertion there that he was not informed about the fact of pendency of Criminal Revision no.195 of 2017 before the learned Sessions Judge, or the fact that the fact of making a withdrawal application in the said revision was not disclosed in Criminal Revision no.4016 of 2017 filed before this Court by his learned counsel, Sri Harsh Kumar Srivastava, Advocate High Court, Allahabad, are hard to accept. The further assertion in paragraph 11 of the personal affidavit under reference, that the fourth respondent was informed by his counsel that this Court had directed the learned Sessions Judge to decide the revision pending before him expeditiously, and the fact that the criminal revision

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had been dismissed on merits by this Court, was not conveyed or explained to him by his learned counsel, are harder to accept. In this connection, it may be noticed that he has said in paragraph 14 of the personal affidavit that he is literate but uneducated. It is a fact that has been seriously disputed by the petitioner in paragraph 22 of his rejoinder affidavit dated 28.09.2018, where it is said that the fourth respondent has passed his intermediate examination in the year 2010 from Sarvodaya Inter College, Kishanpur, District Fatehpur, and earned his degree of graduation (B.A.) in the year 2013 from the Thakur Jageshwar Singh Mahavidyalaya, Kishanpur, Fatehpur in the year 2013. The said fact has not been rebutted by any further affidavit, or evidence and must, therefore, be deemed to be admitted. On these facts, it is impossible to believe that the fourth respondent would not have known the fate of his revision filed to this Court, decided vide order dated 02.01.2018, and that he understood it to mean that a direction had been issued to the Sessions Judge to decide the revision. Going by the legal mobility and his vitality as a litigant, that is otherwise manifest, the explanation offered by the fourth respondent in paragraphs 10 and 11 of his personal affidavit dated 18^th September, 2018, is liable to be rejected.

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It must be added here, that the explanation offered by the fourth respondent in paragraphs 10 and 11 of his personal affidavit last mentioned, is additionally found to be worthy of no credit, inasmuch as it does not stand to reason as to how the fourth respondent, on his own showing in paragraph 9 of his affidavit under reference, has said that he was under the bona fide impression that after a withdrawal application on his behalf had been filed before the Sessions Judge, his revision there, would have been dismissed as withdrawn, and yet as he says in paragraph

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11 of his affidavit under reference, that he was led to believe by his counsel before this Court, that the learned Sessions Judge has been directed to decide his revision vide order dated 02.01.2018, passed in Criminal Revision no.4016 of 2017. The order there is a direction to the

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Magistrate to decide proceedings before him, which could never have been misrepresented or misunderstood by the fourth respondent, to be a direction to the learned Sessions Judge to decide his revision, that he had already sought withdrawal of. His explanation apparently is a floundering effort to get away from the consequences of a patent abuse of process of court, that he has indulged in, by simultaneously invoking the jurisdiction of this Court and the learned Sessions Judge, and taking both proceedings to their logical conclusion, albeit to a conflicting end.

¶89

The fourth respondent, in fact, appeared before the learned Sessions Judge through counsel on 29.06.2018, whoever the learned counsel was, and was directed to take steps. By that time, the order passed by this Court in Criminal Revision no.4016 of 2017, was more than six months old, being an order dated 02.01.2018, and well-known to the fourth respondent. For one, it was his duty on 29.06.2018, to bring the order of this Court dated 02.01.2018 passed in the revision under reference, to the notice of the learned Sessions Judge, which he did not do, as the learned Judge in his report, has clearly disclosed. What makes the entire conduct of the fourth respondent, murkier is the fact that in paragraphs 12 and 13 of his personal affidavit dated 18^th September, 2018, it is said that the fourth respondent was under the bonafide impression that Criminal Revision no.195 of 2017 had been dismissed by the learned Sessions Judge, pursuant to his withdrawal application, and further that since he had withdrawn his instructions from his counsel in Criminal Revision no.195 of 2017, he had no knowledge about further proceedings in the said Criminal Revision, that subsequently came to be allowed. This stand of the fourth respondent is not compatible with his presence before the learned Sessions Judge on 29.06.2018, through his learned counsel, whoever was appearing on that day.

¶90

It might have been some redemption for the fourth respondent, in case it was just about his presence through counsel on 29.06.2018 with reference to his stand in paragraphs 12 and 13 of his personal affidavit last

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mentioned, to the effect that he never knew that the learned Sessions Judge had proceeded to subsequently allow his revision, but further events and his subsequent conduct spare no room for doubt, that the fourth respondent has deliberately and brazenly abused the process of court in order to secure relief for himself, by means outrightly foul. This conclusion of the Court is based on the assertions in paragraphs 12 and 13 of the rejoinder affidavit filed by the petitioner, where it is averred:

¶93

“12. That it appears that the respondent No.4 has taken back his file/ brief from his counsel appearing in the revision before Session Judge. It further appears that the learned Session Judge, without taking note of the withdrawal application finally allowed the criminal revision No. 195 of 2017 and quashed the proceeding under section 145 Cr.P.C. pending before S.D.M. Khaga, vide judgment and order dated 18.08.2018.

¶94

13. That the respondent No. 4 being well aware of the disposal of his criminal revision No. 4016 of 2017 by this Hon'ble Court, obtained certified copy of the judgment and order dated 18.08.2018, passed by Session Judge in Criminal Revision No. 195 of 2017, and submitted the same before S.D.M. Khaga with a prayer to dropped the proceeding under section 145 of Cr.P.C. and to restore his possession over the disputed property.”

¶95

The said assertions in the rejoinder affidavit have not been denied, by any further pleading or affidavit, on behalf of the fourth respondent, which must consequently be deemed to have been admitted. Thus, it is abundantly clear that the fourth respondent was well aware of the impugned order dated 18.08.2018, passed by the learned Sessions Judge in his favour, in Criminal Revision no.195 of 2017, that ran contrary to the order of this Court dated 02.01.2018 in Criminal Revision no.4016 of 2017, also preferred by the fourth respondent. He has, thus, falsely stated on oath before this Court that he had no knowledge about further proceedings in the criminal revision before the Sessions Judge, which subsequently came to be allowed. Not only did the fourth respondent have knowledge of the learned Sessions Judge's order, but he utilized the said order before the Sub-Divisional Magistrate, to seek release of the property attached in enforcement of the learned Magistrate's order dated 16.11.2017, as asserted in paragraph 13 of the rejoinder affidavit dated 28^th September, 2018, filed by the petitioner. Thus, it must be held, that the fourth respondent has abused the process of court, by simultaneously

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approaching this Court and the learned Sessions Judge, against the same order passed by the Magistrate dated 16.11.2017, and securing a decision from both courts, one in his favour and the other against him, and in doing so, suppressed both from this Court and the learned Sessions Judge, the fact that the other Court had been approached, by way of a revision against the same order. He has perfected his design to abuse the process of court by enforcing before the Magistrate, the order of the learned Sessions Judge, favourable to him, the one passed on 18.08.2018 while deliberately suppressing the order passed by this Court in revision from the same order of the Magistrate, on 02.01.2018. There could not have been a case of more brazen abuse of process of court. It must also be held that his assertions in paragraph 13 of his personal affidavit dated 18.09.2018 to the effect that he had no knowledge about further proceedings in Criminal Revision no.195 of 2017, earlier filed before the Sessions Judge, as well as the fact that the said revision subsequently came to be allowed by the learned Sessions Judge, is a perjured statement, made on oath before this Court falsely, knowing it to be false.

¶98

Now, it is a fact that confronts this Court as to how this falsehood that has sullied the stream of justice is to be dealt with. Certainly, the respondent no.4, for whatever he has done to abuse the process of court, besides making false statement on oath knowing them to be false cannot go scot free. Untruth, soiling the purity of the stream of justice, has always been a big challenge. In contemporary times, much can be done to detect these vitiating misadventures by the unscrupulous litigant, by putting to gainful employment, the immense potential of the present day computerized and internet enabled Court websites and other support systems, to eliminate this scourge. In this regard, there is guidance of their Lordships of the Supreme Court, in the context of witnesses deposing falsely and unscrupulously during the trial of a heinous offence of murder, to be found in the decision in Swaran Singh vs. State of Punjab, (2000) 5 SCC 668 , expressed in the following words:

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“ 36. …........ If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the courts, district courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. The Bar Council of India and the State Bar Councils must play their part and lend their support to put the criminal system back on its trail. Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure.”

¶101

There is the inseparable issue of abuse of process of court by the fourth respondent, wider than the perjury itself, that has made proceedings in this case go haywire. The act of the fourth respondent, in not bringing to the notice of the learned Sessions Judge, the fact that the order impugned before him, has subsequently been challenged before this Court and approved, has embarrassed proceedings before the learned Sessions Judge, who has, uninformed of these developments, may be on account of a little lack of additional caution, proceeded to dispose of the Criminal Revision from the same order of the Magistrate, by an order contrary to that made by this Court, and, which he had no jurisdiction to do once a revision from the said order of the Magistrate had been disposed of at the instance of the fourth respondent by this Court. This has come about all on account of the fourth respondent, recklessly and unscrupulously invoking remedies, on the basis of all kinds of advice that he received, to overcome the Magistrate's order of attachment. This kind of an abuse of process of court, in the context of a petition of Habeas Corpus, filed before this Court, on a second instance for the same relief after dismissal of the first by a Bench of this Court, desperately to seek relief, fell for consideration of the Supreme Court in Kishore Samrite vs. State of Uttar Pradesh and others, (2013) 2 SCC 398 , where their Lordships held:

¶102

“31. Now, we shall deal with the question whether both or any of the

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petitioners in Civil Writ Petitions Nos. 111 of 2011 and 125 of 2011 are guilty of suppression of material facts, not approaching the court with clean hands, and thereby abusing the process of court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case law which would help us in dealing with the present situation with greater precision.

¶105

32. The cases of abuse of process of court and such allied matters have been arising before the courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:

¶106

32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts and came to the courts with “unclean hands”. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor are entitled to any relief.

¶107

32.2. The people, who approach the court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.

¶108

32.3. The obligation to approach the court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.

¶109

32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have overshadowed the old ethos of litigative values for small gains.

¶110

32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.

¶111

32.6. The court must ensure that its process is not abused and in order to prevent abuse of process of court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the court would be dutybound to impose heavy costs.

¶112

32.7. Wherever a public interest is invoked, the court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.

¶113

32.8. The court, especially the Supreme Court, has to maintain the strictest vigilance over the abuse of process of court and ordinarily meddlesome bystanders should not be granted “visa”. Many societal pollutants create new problems of unredressed grievances and the court should endure to take cases where the justice of the lis well justifies it. (Refer: Dalip Singh v. State of U.P. [(2010) 2 SCC 114 : (2010) 1 SCC (Civ) 324], Amar Singh v. Union of India [(2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560] and State of Uttaranchal v. Balwant Singh Chaufal [(2010) 3 SCC 402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807] .)

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34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the justice-delivery system.

¶116

35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the courts, irrespective of the consequences but that practice no longer proves true, in all cases. The court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the court with clean hands. It is the bounden duty of the court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of process of court. One way to curb this tendency is to impose realistic or punitive costs.

¶117

38. No litigant can play “hide and seek” with the courts or adopt “pick and choose”. True facts ought to be disclosed as the court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the court is duty-bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of court. (K.D. Sharma v. SAIL [(2008) 12 SCC 481] .)

¶118

39. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao v. K. Parasaran [(1996) 5 SCC 530 : 1996 SCC (Cri) 1038] .)”

¶119

This Court is mindful of the fact that the decision of their Lordships in Kishore Samrite ( supra ) was rendered in the context of Habeas Corpus Writ Petitions, filed before this Court repetitively, suppressing the factum of filing and the event in the earlier petitions, based on the same cause of action. There were other issues also, such as damage to the reputation of the respondent. Nevertheless, the fact remains that it is all about an abuse of process of court by knowingly and deliberately invoking jurisdiction of the court, where an attempt has been made to no fruitful end by suppressing that history. In the present case, what

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aggravates the abuse further is that the revision filed to the learned Sessions Judge was not urged at all on merits, but abandoned midway by filing a withdrawal application, and without caring to see that the withdrawal application was taken to its logical conclusion, a criminal revision from the same order of the Magistrate was filed to this Court, without setting forth the history of remedy availed before the Sessions Judge. The abuse becomes beyond redemption as the fourth respondent filed the impugned order passed by the Sessions Judge, before the Magistrate at Khaga, and made him drop proceedings under Section 145 Cr.P.C. on 04.09.2018, followed by a consequential order passed at the instance of respondent no.4, directing the S.H.O. concerned to restore possession of the property in dispute to the same position as it was prior to appointment of a Supurdgar / attachment. In effect, thus, notwithstanding the order of this Court dated 02.01.2018, the fourth respondent by concealing the same from the S.D.M. maneuvered to get the order of the Sessions Judge, impugned, to be enforced, contrary to the orders of this Court dated 02.01.2018, approving the attachment and directing the proceedings under Section 145 Cr.P.C. to continue, and be concluded within a specified period of time by the Magistrate.

¶122

So much for the issue of abuse. So far as the validity of the impugned order passed by the learned Sessions Judge is concerned, there is absolutely no doubt that the order impugned is without jurisdiction, inasmuch as, by virtue of the provisions of Section 397(3) Cr.P.C. any person has a right to file an application in revision from an order of a subordinate court, either to the High Court or to the Sessions Judge. It is further provided that no further application by the same person, shall be entertained by either of them. This being the position, if the Sessions Judge had decided the revision earlier in point of time, a second application to this Court would not be maintainable, at the instance of the fourth respondent. On facts, however, that need not be recounted all over again, while the revision was pending before the Sessions Judge, together

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with an application for its withdrawal, another revision from the same order of the Magistrate was filed to this Court by the fourth respondent, that came to be heard and decided vide order dated 02.01.2018, upholding the Magistrate's order. There being thus a decision by this Court earlier in point of time, than the impugned order passed by the learned Sessions Judge dated 18.08.2018, the order passed by the learned Sessions Judge is without jurisdiction, being in the teeth of the provisions of Section 397(3) Cr.P.C. The impugned order passed by the Sessions Judge, for the utter lack of jurisdiction on this count, is a nullity.

¶125

Learned counsel for the fourth respondent has come up with a defence to support the impugned order, as far as the jurisdiction goes, by saying that the question of abuse and perjury apart, or the conduct of the fourth respondent in filing a revision to this Court, without indicating that the same order of the Magistrate was pending revision before the Sessions Judge, the provisions of Section 397(3) Cr.P.C., in fact, would render the decision of this Court dated 02.01.2018 non-est, as on that day, or when Criminal Revision no.4016 of 2017 was filed, a previous revision before the Sessions Judge from the same order of the Magistrate had been filed, and was pending. Learned counsel for the fourth respondent has emphasized that the words employed in Section 397(3) Cr.P.C. are “if an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person …......”. He submits that the jurisdiction of the Sessions Judge and this Court is concurrent, with the right being exercisable by a person only once, and to either of them. Once the right is exercised before either of the two courts, the jurisdiction of the other is not there at all. In this regard, he has placed reliance on a decision of this Court in Muslim alias Bhoora vs. State of U.P., 1996 Cri LJ 98 (All) , where it has been held to the following effect:

¶126

“5. The learned A.G.A. has submitted that this Revision is not maintainable as it is barred under Section 397(2), Cr.P.C. It appears from the record that against the order of the Magistrate a revision was preferred before the

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Sessions Court. The learned Ist Addl. Sessions Judge, Muzaffarnagar, dismissed the said revision on 28-7-1988. This is the second revision filed by the same person for which I find that the second revision, after dismissal of the first revision filed by the same person, is barred by law.”

¶129

There is no quarrel about the proposition that once a person challenges an order of a inferior criminal court before the Sessions Judge and fails, he cannot invoke the revisional jurisdiction of this Court. But the question is whether the mere filing of an earlier revision to the Sessions Judge, would divest this Court of jurisdiction, on a revision subsequently filed to this Court, even before the Sessions Judge has decided the revision filed before him. Ofcourse, this kind of a situation can come about on facts where an unscrupulous litigant has simultaneous invoked the jurisdiction of this Court and the Sessions Judge, even before the Sessions Judge has decided, suppressing the fact of the earlier revision being filed from the same order to the Sessions Judge – a situation that precisely obtains on facts in the present case. Learned counsel for the fourth respondent submits that under the law, the bar under Section 397(3) Cr.P.C. is attracted, on the making of an application to either of the two courts and not on a decision of it, earlier in point of time, by one of them. He lays emphasis on the words “...... has been made by any person either to the High Court or to the Sessions Judge …...”. It is submitted that it is the making of application in revision, either to the Sessions Judge or the High Court, that brings about an ouster of jurisdiction for the other; it is not excluded for the other on the basis of a decision by one, prior in point of time.

¶130

This Court has considered the aforesaid fine-molded submission, but is unable to agree. The construction placed on the provision of Section 397(3) Cr.P.C. by the learned counsel for respondent no.4, in the opinion of this Court, does not hold substance. It is so because a reading of the provision the way, the learned counsel for respondent no.4 urges, does not make allowance for the words “no further application”. The words 'further application' clearly postulate, a decision of the first. In case the statute

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envisaged barring jurisdiction of the other, on the making of an application in revision either, to the Sessions Judge or the High Court, there would be no need at all for employment of the word 'further' to qualify the words “application by the same person”. It would be accomplished by just saying “no application by the same person shall be entertained by either of them”. Therefore, the word 'further' is of decisive significance. It is a well established cannon of statutory interpretation that the legislature does not employ words in a statute that are superfluous or a mere surplusage. Every word in a statute is to be given its intended meaning. In this connection, the decisions in Balwant and Ors. vs. The Deputy Director of Consolidation and Ors., AWC 1975 178 All and Grasim Industries Ltd. vs. Collector of Customs, Bombay, AIR 2002 SC 1706 , may be profitably referred to.

¶133

This being the principle applicable to the construction of the provisions of Section 397(3) Cr.P.C., the word 'further' clearly postulates an earlier application in revision, that is just not made but made, heard and decided. It is in the sense of a further remedy or challenge to the order made in revision, on an application first made, that the statute intends to forbid. Going by the judicial hierarchy of courts, the failure of a party before the High Court against the order of an inferior criminal court, would afford him no right to invoke the jurisdiction of the learned Sessions Judge in revision. The provision really intends, as it does, to bar a second revision by the same party, after failing before the Sessions Judge against the order of a inferior criminal court in revision. It postulates, therefore, a decision rendered by the Sessions Judge, which alone would bar the right of the same party, to further apply in revision to the High Court. Simultaneous invocation of the jurisdiction of both courts, ofcourse, is so clearly prohibited that recourse to both courts in revision, against the same order of the Magistrate, would be patently illegal, besides being a gross abuse of process of court.

¶134

In facts that were different, under the Code of Criminal Procedure,

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1898, as it stood at the relevant time, this issue arose in the context of provisions of Section 435(4), that are pari materia to those of Section 397(3) Cr.P.C., before a Division Bench of the Madras High Court in re Appachi Goundan, (1931) ILR 54 Mad 842 . Their Lordships dwelt upon the meaning of the word 'made' occurring in Section 435(4) of the Code of 1898, for the purpose of determining whether the Sessions Judge had jurisdiction to entertain an application in revision, once it had been made to the District Magistrate from an order of discharge passed by a Sub-Magistrate, over whom he had powers of revision under the law then in force, but returned by the District Magistrate to the party applying, with an order that it would be more convenient on facts there, to move the Sessions Judge in revision, and the Sessions Judge held it to be barred by the pari materia provisions of Section 435(4) of the Code of 1898. It was held by their Lordships:

¶137

“And it was argued that as an application had been made to the District Magistrate under Section 435, Criminal Procedure Code, the Sessions Judge had no power to entertain a similar application. The learned Sessions Judge has 'in considering that objection taken the literal meaning of the word "made." In his view when the application was presented it was made notwithstanding the fact that the District Magistrate declined to go into the merits of the application and said that the more convenient course would be to re-present the application to the Sessions Judge. We are unable to take the same view as the learned Sessions Judge has taken. We think that particularly when the facts of the case are applied to the consideration of the subsection, the word "made" means not only "made" but "entertained and decided". We are of the opinion that making an application does; not merely mean presenting a petition to the Magistrate or the Sessions Judge but it must mean something more, i.e., that the application must be heard and determined.”

¶138

In respectful agreement with what has been said above, this Court is clearly of opinion that the mere filing of a criminal revision to the Sessions Judge by the fourth respondent from the same order of the Magistrate, as the one challenged through a subsequent revision before this Court, would not bar this Court's jurisdiction under Section 397(3) Cr.P.C. to hear and decide the said revision, so long as the earlier revision filed to the Sessions Judge, was not decided by him. Rather, the decision of this Court prior in point of time on the revision filed by the fourth respondent, from the same order as the one impugned before the Sessions

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Judge, deprived him of jurisdiction to hear and decide the pending revision before him, inasmuch as this Court being a court of superior jurisdiction, having approved the Magistrate's order, on the sound principles of hierarchy of courts, even a concurrent jurisdiction could not be exercised by the learned Sessions Judge, that had already been done by this Court, the learned Sessions Judge being a court subordinate to this Court. For all these reasons to add, this Court concludes that the impugned order passed by the learned Sessions Judge is a nullity, that has to be formally set at naught, and its consequences reversed.

¶141

So far as the fourth respondent is concerned, there are as above detailed, three issues vis-a-vis these proceedings and the impugned order. These are the perjury he committed on record of the proceedings of the present petition, besides that committed in the course of proceedings of Criminal Revision no.4016 of 2017; the abuse of process of court, brazenly indulged in by the fourth respondent by a simultaneous invocation of jurisdiction of the learned Sessions Judge, and this Court in revision against the same order of the Magistrate dated 16.11.2017, and, enforcing the impugned order of the learned Sessions Judge dated 18.08.2018, favourable to him, before the Magistrate, contrary to the order of this Court dated 02.01.2018, deliberately suppressing this Court's order from the Magistrate; and, the fate of the impugned order passed by the learned Sessions Judge, together with the benefits derived thereunder by the fourth respondent.

¶142

Looking to the act of perjury committed by the fourth respondent, and the authority of their Lordships of the Supreme Court to deal with perjury would certainly have called for a direction to lodge an appropriate complaint under Section 209 IPC and other provisions of the Penal Code, but at the hearing of the matter, this Court did not miss to notice that the fourth respondent notwithstanding his formal educational qualifications, does not appear to be even a reasonably educated man. Even if he is educated, there is a lurking doubt that the fourth respondent, legally ill-

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advised by conflicting opinion, committed the misadventure, prompted ofcourse by his desire to secure relief at all cost. This Court under the facts and circumstances does not find it to be a case where he may be prosecuted for perjury and related offences, but given his conduct and brazen abuse of process of court that he has indulged in, deserves to be saddled with penal costs in the sum of Rs.25,000/-, regarding which a direction shall follow in the order made.

¶145

So far as the impugned order passed by the learned Sessions Judge, Fatehpur in Criminal Revision no.195 of 2017 is concerned, the same deserves to be set aside with a direction to the Sub-Divisional Magistrate, Khaga, District Fatehpur to restore the property to attachment in enforcement of his order dated 16.11.2017, and proceed to decide Case no.14 of 2017, under Section 145/146 Cr.P.C. in terms of the directions issued by this Court in Criminal Revision no.4016 of 2017 decided on 02.01.2018.

¶146

In the result, this petition succeeds and is allowed with costs quantified in the sum of Rs.25,000/-. The impugned order dated 18.08.2018 by the learned Sessions Judge, Fatehpur in Criminal Revision no.195 of 2017, Amit Kumar Agrawal vs. Vipin Kumar Agrawal and others, shall stand set aside . The property subject matter of dispute in Case no.14 of 2017, State vs. Amit Kumar Agarwal and others, under Section 145(1)/ 146(1) Cr.P.C., Police Station Kishanpur, District Fatehpur, shall stand attached in terms of the order dated 16.11.2017 passed by the Sub-Divisional Magistrate, Khaga, District Fatehpur, who shall proceed to decide Case no.14 of 2017 pending before him in accordance with the directions of this Court in Criminal Revision no.4016 of 2017, decided on 02.01.2018. The fourth respondent shall deposit the costs imposed within two months of date with the Registrar General of this Court, who shall, upon such deposit being made good, remit the same to the petitioner through an instrument payable in account. In case of default, the Registry shall take steps to recover the costs as arrears of land

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revenue through the Collector, Fatehpur, which upon realization, shall be likewise remitted to the petitioner.

¶149

Let a copy of this judgment be forwarded by the Registry to the Sub-Divisional Magistrate, Khaga, District Fatehpur for compliance.

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Order Date :- 18.12.2018 Anoop

Vipin Kumar Agrawal v. State of U.P. and 3 Others

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Vipin Kumar Agrawal v. State of U.P. and 3 Others

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