The petitioner prays that your Lordship may be graciously pleased to consider the facts stated in the petition and direct to Sessions Judge to allow the petitioner to withdraw the Criminal Revision No. 107 of 1986 and further direct the Sub-divisional Judicial Magistrate, Dhenkanal to issue summons to the accused persons and to complete the trial expeditiously.
5. It is argued by learned counsel for the petitioner that when the petitioner who had filed the revision did not like to proceed with the said case, the Sessions Judge should not have insisted upon hearing and disposal of the case on merit. The aforesaid legal and factual concept of the petitioner appears to be erroneous inasmuch as a party to a proceeding has no right of preferring a revision. According to the provision Under Section 397 read with Section 401 of the Code the Court of Session or the High Court, as the case may be, exercising the concurrent jurisdiction of superintendence over the functioning of the criminal Courts in subordinate Judiciary may examine any order passed by any criminal Court to find out if such order is illegal, unjust, improper or perverse or affecting the administration of justice and to pass appropriate order by exercising the revisional power. However, in view of the provisions in Section 397(2) of the Code interlocutory order are made not amenable to revisional jurisdiction. Power of revision can be exercised suo motu or on the basis of information received or application made by any of the parties or person connected therewith. Once the revision is admitted for hearing, it should not be disposed of without examining legality and correctness of such order. For that reason only, a Criminal Revision is debarred from being dismissed for default to the petitioner. Thus it leads to the logical conclusion that a revision once admitted to examine correctness of an impugned order cannot be dismissed as not pressed. Under such circumstance, the Sessions Judge was right in his approach in rejecting the memo and disposing of the revision on merit.
IN THE HIGH COURT OF ORISSA
Criminal Misc. Case No. 2363 of 1992
Decided On: 01.05.1998
Sanat Kumar Patnaik Vs. Binoy Kumar Nayak and Ors.
Hon'ble Judges/Coram:
P.K. Tripathy, J.
Citation: MANU/OR/0325/1998,1999 Cri L J 351 (Orissa).
1. Heard learned counsel for both the parties. In Crl. Misc. Case No. 2363/92 under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code') petitioner has made the following prayer :-
The petitioner prays that your Lordship may be graciously pleased to consider the facts stated in the petition and direct to Sessions Judge to allow the petitioner to withdraw the Criminal Revision No. 107 of 1986 and further direct the Sub-divisional Judicial Magistrate, Dhenkanal to issue summons to the accused persons and to complete the trial expeditiously.
2. Long and short of the background facts which reveals from the record is that in the night between 30th and 31st January, 1985 theft of gold ornaments and cash was committed in the house of the informant who is the present petitioner and the matter was reported to local police on 31-1-1985. On that basis G.R. Case No. 91 of 1985 was registered in the Court of S.D.J.M., Dhenkanal and the local police took up investigation. On 30-6-1985 final report was submitted and on 5-7-1985 a protest petition was filed by the petitioner and was registered as I.C.C. No. 64 of 1985. On 11-9-1985 learned S.D.J.M. accepted the final report and dropped the G.R. Case and the protest petition. Petitioner preferred criminal revision No. 48 of 1986 in the Court of Sessions Judge, Dhenkanal. On 18-6-1986 learned Sessions Judge disposed of the revision with direction to the S.D.J.M. to dispose of the protest petition after affording opportunity to the petitioner. After remand learned S.D.J.M. afforded opportunity to the petitioner, assessed the statements of the witnesses and again dismissed the complaint case and accepted the final report vide his order dated 6-9-1986. Against that order petitioner filed Crl. Revision No. 107 of 1986 in the Court of Sessions Judge, Dhenkanal. That revision was disposed of on 26-2-1980 with direction to the S.D.J.M. to issue direction for re-investigation of the case. Accordingly, the case was reinvestigated and charge-sheet was submitted in G.R. Case No. 91 of 1985. The servant of opposite party No. 1 who was one of the accused was arrested on 13-4-1991 and on 15-4-1991 he made a confessional statement before the S. D. J. M. admitting commission of the theft under the instruction of opposite party No. 1. It may be noted here that opposite party No. 1 is the elder brother of the petitioner. Opposite party No. 1 filed Crl. Revision No. 179 of 1991 in this Court, inter alia, contending that Crl. Revision No. 107 of 1986 was disposed of by the learned Sessions Judge without analogously vide order dated 12-11-1992 of this Court. For reasons indicated in that order, the order dated 15-4-1992 in dismissing the revision by the Sessions Judge was quashed and Cri. Misc. Case No. 1688 of 1992 was allowed. Consequentially, order dated 28-4-1992 in G.R. Case No. 91 of 1985 was set aside and accordingly Crl. Revision No. 355 of 1992 was allowed. It was agreed upon by both the parties that on 1-12-1992 they would appear before the Sessions Judge and thereafter the Sessions Judge would dispose of the Crl. Revision No. 107 of 1986 either on that date or on any other date, but after hearing the parties. It was also indicated in that order that in the event of non-receipt of L.C.R. by 1-12-1992 the Sessions Judge was to dispose of the revision only after issue of notice to both the parties and in the concluding sentence it was recorded that "taking cognizance and issue of summons to the accused and the witnesses in G.R. Case No. 91 of 1985 is to await the decision of Crl. Revision No. 107 of 1986 by the Sessions Judge.
3. The interesting development thereafter was that on 10-12-1992 petitioner filed a memo in not pressing the revision on the ground that affording an opportunity of hearing to him. Crl. Revision No. 179 of 1991 was disposed of by this Court on 14-8-1991 directing the Sessions Judge to re-hear Crl. Revision No. 107 of 1986 and parties were directed to appear before the Sessions Judge on 4-9-1991. Due to non-receipt of a copy of the order as well as the L.C.R. that revision was not taken up by the Sessions Judge till 6-3-1992. However, in the meantime, on the basis of the charge-sheet submitted, cognizance for the offences under Sections 457/380/411 was taken against opposite party No. 1 and his servant and summons were issued for their appearance on 14-4-1992. On 15-4-1992 Crl. Revision No. 107 of 1986 was dismissed due to absence of the petitioner. Consequent upon disposal of that revision, learned S.D.J.M. passed order on 28-4-1992 by recalling the order of cognizance dated 4-2-1992. That order was challenged before this Court in Crl. Revision No. 355 of 1992 on the ground that the cognizance taken could not have been recalled by the S.D.J.M. petitioner also filed Crl. Misc. Case No. 1688 of 1992 Under Section 482 of the Code challenging the order of the Sessions Judge for dismissal of Crl. Revision No. 107 of 1986 without hearing the petitioner.
Crl. Revision No. 355 of 1992 and Crl. Misc. Case No. 1688 of 1992 were heard and disposed of S.D.J.M. had already taken the cognizance on the basis of the charge-sheet submitted after re-investigation. On 14-12-1992 hearing of the revision as well as the aforesaid memo was taken up, but keeping it part-heard the case was adjourned to 22-11-1993. Petitioner has stated in the application Under Section 482 of the Code that learned Sessions Judge expressed opinion not to permit withdrawal of the revision and to dispose of the Criminal Revision in the same manner like the order dated 15-4-1992. Thus, petitioner has approached this Court Under Section 482 of the Code with the above quoted prayer. Thereafter, on 2-2-1993 learned Sessions Judge rejected the memo and disposed of the Crl. Revision No. 107 of 1986 by dismissing it on merit. Against that order petitioner has preferred Crl. Misc. Case No. 341 of 1993 Under Section 482 of the Code with the prayer to set aside the impugned order.
As per order dated 9-4-1993 in Crl. Misc. Case No. 341 of 1992 both the above Crl. Misc. cases were listed together for disposal according to law.
Thus this order will abide the result in both the Crl. Misc. Case No. 2363 of 1992 and 341 of 1993.
4. From the above noted facts it is thus clear that so far as the petitioner's prayer in Crl. Misc. Case No. 2363 of 1993 to issue a direction to the Sessions Judge to accept the memo in not pressing Crl. Revision No. 107 of 1986 is concerned, that prayer has become infructuous in view of the disposal of that Criminal Revision vide order dated 2-2-1993 which is under challenge in Crl. Misc. Case No. 341 of 1993.
5. It is argued by learned counsel for the petitioner that when the petitioner who had filed the revision did not like to proceed with the said case, the Sessions Judge should not have insisted upon hearing and disposal of the case on merit. The aforesaid legal and factual concept of the petitioner appears to be erroneous inasmuch as a party to a proceeding has no right of preferring a revision. According to the provision Under Section 397 read with Section 401 of the Code the Court of Session or the High Court, as the case may be, exercising the concurrent jurisdiction of superintendence over the functioning of the criminal Courts in subordinate Judiciary may examine any order passed by any criminal Court to find out if such order is illegal, unjust, improper or perverse or affecting the administration of justice and to pass appropriate order by exercising the revisional power. However, in view of the provisions in Section 397(2) of the Code interlocutory order are made not amenable to revisional jurisdiction. Power of revision can be exercised suo motu or on the basis of information received or application made by any of the parties or person connected therewith. Once the revision is admitted for hearing, it should not be disposed of without examining legality and correctness of such order. For that reason only, a Criminal Revision is debarred from being dismissed for default to the petitioner. Thus it leads to the logical conclusion that a revision once admitted to examine correctness of an impugned order cannot be dismissed as not pressed. Under such circumstance, the Sessions Judge was right in his approach in rejecting the memo and disposing of the revision on merit.
6. It appears from the above narrated facts that Crl. Revision No. 107 of 1986 was filed challenging the order dated 6-9-1986 by which the S.D.J.M. accepted the final report, refused to lake cognizance of the alleged offences and also dropped the protest petition. At the cost of repetition it may be noted that on the basis of the direction issued by the Sessions Judge, learned S.D.J.M. instructed for re-investigation. After such investigation charge-sheet against the petitioner and the co-accused was filed and cognizance was taken on 4-2-1992. The order of cognizance was recalled on 28-4-1992 simply because Crl. Revision No. 107 of 1986 was dismissed on 15-4-1992. All these developments were available to the Sessions Judge from the L.C.R. itself while he took up the matter for hearing of the Crl. Revision No. 107 of 1986 in the year 1993. The view of this Court was also available to the Sessions Judge that the order recalling the cognizance was set aside being illegal. In spite of that he disposed of Crl. Revision No. 107 of 1986 vide the impugned order dated 2-2-1993 stating therein that there was nothing to interfere with the impugned order. On a bare perusal of the said order it appears that learned Sessions Judge became aggrieved with the petitioner for his conduct in filing a memo in not pressing the revision though the revision was directed to be re-heard by the Sessions Judge only at the instance of the petitioner. It may be noted here that sentiment has no place in a Court's proceeding or while assessing the correctness and legality of an order. A party acts according to his conscience and protects his interest in the best possible manner he thinks it is possible. He may be right or wrong but the Court has to remain away from any feeling while dealing with such matter. In other words, a Court has to strictly go by the provisions of law vis-a-vis the correctness or incorrectness of the impugned order. Learned Sessions Judge while examining correctness of the impugned order in that revision should have taken note of the existing factual aspect vis-a-vis the legal position. Unfortunately, learned Sessions Judge did not act in that responsible manner but acted mechanically and only confining himself to the impugned order. As has been noted earlier, since the cognizance for the offence has already been taken and recalling of that order was found by this Court to be not correct and accordingly set aside, therefore, the order dated 2-2-1993 in Crl. Revision No. 107 of 1986 has become non-operative and non-consequential.
7. After dealing with the aforesaid two aspects of the case, the third and final aspect remain to Be considered is regarding the prayer of the petitioner to issue direction to the S.D.J.M. to issue summons to the accused persons and to complete trial expeditiously. As has been quoted above in a preceding paragraph, as per order of this court dt. 12-11-1992 the matter relating to issue of process and summons to the accused and witnesses were to wait till disposal of Crl. Revision No. 107 of 1986. Since the Criminal Revision has been disposed of by the Sessions Judge in 1993 and the consequence of that order has already been explained in the preceding paragraph, therefore, the S.D.J.M. has to proceed with the case in accordance with law and that direction is sufficient to deal with and dispose of the prayer.
8. Both the Criminal Misc. cases are accordingly disposed of. Send back the L.C.R. immediately.
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