Dismissed

Sukhendra Kumar Singh v. State of U.P. and Another

Allahabad HC17 Nov 2024A482/19175/2024

Case brief

AI extract

What is this about?

In this Section 482 CrPC application, the High Court of Judicature at Allahabad rejected the plea that a prior dismissal of a revision petition bars a subsequent inherent powers application. The court held that while the High Court cannot act as a second revisional court, it retains inherent powers in rare cases. Given that the revision against the summoning order was already dismissed and no abus

What did the court decide?

The application under Section 482 Cr.P.C. is dismissed as it lacks merit and is not maintainable given the prior dismissal of the revision petition.

Sukhendra Kumar Singh Vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:179932

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Court No. - 75

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Case :- APPLICATION U/S 482 No. - 19175 of 2024

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Applicant :- Sukhendra Kumar Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.M.Faraz I. Kazmi Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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This application under Section 482 Cr.P.C. has been preferred against the order dated 22.11.2022, passed by learned Civil Judge (J.D.)/F.T.C., Budaun, in Complaint Case No.2068 of 2019 (Asha Devi Vs. M/s Sai Traders & others), Police Station- Civil Line, District- Budaun, whereby the applicant has been summoned for offence under Sections 406, 420 IPC. The order dated 19.04.2024, passed by learned Additional Sessions Judge/Special Judge (Essential Commodities Act), Budaun in Criminal Revision No.280 of 2022, is also being impugned, whereby the revision against summoning order has been dismissed.

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It has been submitted by learned counsel for the applicant that both the impugned orders are against facts and law and thus liable to be set aside. The opposite party no.2 has purchased a tractor Model No.3600-2 from the Agency of applicant. The allegation that the opposite party no.2 has purchased a tractor Model No.3630 TX, is wholly false. Learned counsel has referred invoice and other related documents, including registration certificate, and submitted that in all these documents the model of tractor has been shown as 3600-2. It was stated that in fact the opposite party no.2 has not paid the remaining consideration amount of tractor and in that connection the applicant has lodged a complaint and thereafter, the impugned complaint has been lodged as a counterblast. Learned counsel has referred contents

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of complaint and other documents on record and submitted that the court below have not considered the matter in correct perspective and thus the impugned orders are liable to be set aside. In support of his contentions, learned counsel has placed reliance upon Delhi Race Club (1940) Ltd. & Ors. Vs. State of Uttar Pradesh & Anr. [Criminal Appeal No.3114 of 2024], decided on 23.08.2024 and Mahmood Ali & Ors. Vs. State of U.P. & Ors. 2023 LiveLaw (SC) 613 .

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Learned A.G.A. has opposed the application and submitted that the revision against summoning order has already been dismissed and that in view of allegations made in the complaint, a prima-facie case is made out against the applicant. Referring to contents of complaint and statement of complainant, it was submitted that a prima-facie case is made out and there is no illegality or perversity in the impugned orders.

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I have considered the rival submissions and perused the record.

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At the outset it may be mentioned that the applicant was summoned vide impugned order dated 22.11.2022 for offence under Sections 406, 420 IPC. The applicant has preferred a criminal revision against aforesaid order dated 22.11.2022, which has been dismissed by learned Additional Sessions Judge/Special Judge (E.C. Act), Budaun vide impugned order dated 19.04.2024. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter the Court has to be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.

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In Deepti aliasArati Rai v. Akhil Rai & Ors , (1995) 5 SCC 751, the Apex Court held that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the

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Code cannot be utilized for exercising powers which are expressly barred by the Code. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel ; 2002 0 Supreme (SC) 283, the Court held:

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"3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."

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8. Similarly, in the case of Dharampal & Ors. v. Ramshri ; 1993 (1) SCC 435, the Hon'ble Supreme Court held that-

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" .... Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. Onthis short ground itself, the impugned order of the High Court can be set aside."

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9. In the case of Rajathi Vs. C.Ganesan ; 1999 SCC (Cri) 1118, the Court held as follows:-

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"In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.''

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Thus, it is clear that availing of remedy of revision before Sessions Judge under section 399 Cr.P.C. does not bar a person from invoking power of High Court under Section 482 Cr.P.C. but High Court can not act as a second Revisional Court under garb of exercising inherent powers. While exercising inherent powers in such a matter, the High Court can interfere only where it is satisfied that if complaint is allowed to be proceeded with, it would amount to abuse of the process of Court or that interest of justice otherwise call for quashing of the charges. It is therefore to meet the ends of justice or to prevent abuse of process that High Court is preserved with inherent powers and would be justified under such circumstance to exercise inherent powers. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice and it has to be exercised sparingly and

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with circumspection. In exercising that jurisdiction the High Court can not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.

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In case of Delhi Race Club (Supra) , the Hon'ble Apex Court has held as under:-

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"Before we close this matter, we would like to say something as regards the casual approach of the courts below in cases like the one at hand. The Indian Penal Code (IPC) was the official Criminal Code in the Republic of India inherited from the British India after independence. The IPC came into force in the sub-continent during the British rule in 1862. The IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita ("BNS") in December 2023 which came into effect on 1st July 2024. It is indeed very sad to note that even after these many years, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating.

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When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police – to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind."

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12. In case of Mahmood Ali and Ors. (Supra) , the Hon'ble Apex Court has held

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as under:-

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"At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."

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Keeping in view the aforesaid legal position, in the instant matter perusal of record shows that the opposite party no.2/complainant has alleged that she has purchased a tractor model 3630 TX Super against consideration of Rs.7 lakhs from the agency of applicant and an amount of Rs.2,50,000/- was paid in cash and credit of Rs.4,50,000/- was availed from bank. While purchasing said tractor, the applicant has obtained the signatures of complainant on some bank papers and stamp papers. On 18.04.2019 the said tractor met an accident and thereafter it was revealed that in fact the model of the tractor is 3600-2. It was found that by changing sticker of model 3600-2, it was shown as model 3630. It was alleged that the complainant has paid price for tractor model 3630 but it was revealed that the model of said tractor is 3600-2. The said version is supported by complainant in her

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statement under Section 200 Cr.P.C. and it was further supported by witnesses examined under Section 202 Cr.P.C. As observed earlier, the summoning order has already been upheld by the revisional court. In view of specific attending facts and circumstances, the aforesaid case laws, relied upon by learned counsel for the applicant, do not help the applicant. Even if Section 406 IPC is not made out as per law laid down in case of Delhi Race Club (supra), it could not be said that no case under Section 420 IPC is made out. That point can be considered at the stage of charge. Thus, it is not a fit case for quashing of entire proceedings. When the matter is examined at the touchstone of law, where revision has already been dismissed against summoning order, no case for invoking powers under Section 482 Cr.P.C. is made out. The application under Section 482 Cr.P.C. lacks merit and thus liable to be set aside.

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Accordingly, the application under Section 482 Cr.P.C. is hereby dismissed .

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Order Date :- 18.11.2024 SP/-

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Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad

Sukhendra Kumar Singh v. State of U.P. and Another

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