Amit Srivastava vs State and Others

This petition u/s 482 Cr.P.C. has been preferred by the petitioner to challenge the order dated 4.2.2013 in C.R. No. 28/2012, whereby the learned Additional Sessions Judge dismissed the criminal revision petition filed by the petitioner. The petitioner also craves leave of this court to assail another order dated 29.2.2012 passed by the learned Additional Sessions Judge in Crl.R.P. No. 61/2011 and order dated 15.9.2009 passed by the learned Metropolitan Magistrate in CC No. 3097/1/2008. Addressing arguments on the present petition Mr. Jatan Singh, learned counsel for the petitioner submits that the petitioner is a Government servant and the learned Metropolitan Magistrate has taken cognizance against the petitioner u/s 323 /352 IPC vide his order dated 15.09.2009 without appreciating the fact that no previous sanction was obtained by the complainant before launching the said prosecution against the petitioner in terms of Section 197 Cr.P.C.

Counsel also submits that this question was raised by the petitioner in the earlier revision petition preferred by him and the said revision petition was dismissed by the learned Additional Sessions Judge without considering the alleged legal factum and the same was dismissed only on the point of limitation. Counsel further submits that there is no bar on the petitioner to reiterate the same legal question again as it is one of the essential pre-requisite to be considered before issuance of summons in the said complaint case. Counsel also submits that the petitioner had gone to the house of respondent No. 2/complainant on 3rd July, 2008 so as to deliver the transfer order in due discharge of his official duties and, therefore, sanction of the Government was pre-requisite before the institution of the complaint by respondent No. 2. In support of his arguments counsel for the petitioner placed reliance on the following judgments:-

a) S.B. Saha and Others Vs. M.S. Kochar,

b) Suresh Kumar Bhikamchand Jain Vs. Pandey Ajay Bhushan and Others,

c) Balvant N. Viswamitra and Others Vs. Yadav Sadashiv Mule (dead) through Lrs. and Others,

d) Kiran Singh and Others Vs. Chaman Paswan and Others, .

e) State of H.P. Vs. M.P. Gupta,

f) AIR 1939 43 (Federal Court)

I have heard learned counsel for the petitioner and given my thoughtful consideration to the arguments advanced by him.

The present petitioner was summoned by the learned Magistrate in a complaint case filed by respondent No. 2 to seek prosecution of the petitioner for committing an offence under Sections 323 /353 IPC vide order dated 15.09.2009. According to the petitioner he is a Government servant posted as Section Officer, in Ministry of Health and Family Welfare, Government of India at Nirman Bhawan, New Delhi. That he had gone to the residence of respondent No. 2 to deliver a transfer order, which as per the petitioner was in due discharge of his official duties and, therefore, previous sanction u/s 197 Cr.P.C. was mandatory for filing of the said complaint by respondent No. 2. The said order of summoning was challenged by the petitioner earlier in Crl. R. Petition No. 61/2011 and one of the ground raised by the petitioner in the said revision petition was that no previous sanction of the competent authority was obtained by respondent No. 2 before filing of the said complaint. The said criminal revision petition was dismissed by the learned Additional Sessions Judge vide order dated 29.2.2012 on the point of limitation. Indisputably, the petitioner had never challenged the said order dated 29.2.2012 and instead had filed another application before the learned Metropolitan Magistrate to seek dropping of the said criminal proceedings against him. Vide order dated 30th July, 2012 the said application filed by the petitioner was dismissed by the learned Magistrate. The operative para of the order of the Magistrate is reproduced as under:-

Vide the present application, applicant has again re-agitated, the same prayer, as taken by him, in aforementioned criminal revision, which was dismissed. Even though the said criminal revision was dismissed for want of limitation period, but against the said order, applicant, should have approached, the higher court, in comparison to the said revision court, for redressal of his grievances. Therefore, present application stand dismissed.

The said order of the learned Magistrate was challenged by the petitioner in Criminal Revision No. 28/12 and vide order dated 4.2.2013 the learned Additional Sessions Judge dismissed the said revision petition mainly on the ground that the petitioner cannot be allowed to re-agitate the same issue again once the earlier revision petition filed by the petitioner raising the same controversy of non-grant of previous sanction was dismissed by the Court vide order dated 29.2.2012. The operative paragraph of the order dated 4.2.2013 is reproduced as under:-

I have heard both the asides and have perused the records of he case. It is not in dispute that the revisionist had challenged the summoning order dated 15.09.2009 before the court of Sh. Atul Kumar Garg, Ld. ASJ and the said Criminal Revision was dismissed vide order dated 29.02.2012. The respondent No. 2 has filed a Reply to the present Criminal Revision and along with this Reply a copy of the earlier Criminal Revision No. 61/11 which was dismissed vide order dated 29.02.2012 has also been placed on record. The very first ground raised in the Criminal Revision No. 61/11 was that the sanction u/s 197 of Cr.P.C. has not been obtained before prosecuting the revisionist. Although, it is true that the said Criminal Revision No. 61/11 was dismissed on 29.02.2012 on the question of limitation only, but nevertheless the ground urged for getting the summoning order quashed was primarily non obtaining the sanction u/s 197 of Cr.P.C. The said revision petition was dismissed on 29.02.2012, it is also not disputed that the said order was not challenged before any other higher court. Under these circumstances, the finding attained finality and now the revisionist cannot be permitted to re-agitate the same issue by taking a different route of filing another application before the ld. Trial Court for recalling the summoning due to non obtaining the sanction u/s 197 of Cr.P.C. It is settled law that something which cannot be done directly, can also not be done indirectly. The revisionist having earlier assailed the order of summoning on the ground of non obtaining the sanction u/s 197 of Cr.P.C., cannot be allowed to once again challenge the same finding by giving different nomenclature of his prayer. There is no provision in law by which a issue once settled may be reopened before the same court. Under these circumstances, I do not find any infirmity in the order passed by the Ld. Trial Court in dismissing the said application. The Criminal Revision, therefore, lacks merit and is hereby dismissed.

As would be seen from the aforesaid observations of the learned Additional Sessions Judge that the petitioner instead of challenging the earlier order of the Revisional Court dated 29.2.2012 filed another application before the Magistrate to seek dropping of the criminal proceedings on the same ground and then even on dismissal of the same, took the same route of agitating the same issue in a revision petition. Having not challenged the earlier order of the Revisional Court dated 29.2.2012, the petitioner himself allowed the said order to attain finality and, therefore, I find myself in agreement with the observations of the learned Additional Sessions Judge that the revisionist cannot be permitted to re-agitate the same issue by taking a different route of filing another application before the learned Magistrate on the same ground. Indisputably the petitioner in the present petition has also assailed the order dated 29.2.2012 in the present petition but such a challenge is only a way adopted by the petitioner to overcome the lacuna, the procedural irregularity committed by the petitioner and seems an attempt to overcome the reasoning given by the learned Revisionist Court in the impugned order dated 4.2.2013.

For invoking the inherent powers of the Court u/s 482 of the Code of Criminal Procedure the petitioner must approach the Court with utmost honesty and clean hands. It is a settled legal position that the extraordinary power u/s 482 of the Code of Criminal Procedure can be exercised in rare and exceptional circumstances to prevent the abuse of the process of the Court or otherwise to secure the ends of the justice. Certainly before any such power is exercised in favour of the party approaching the Court, his over all conduct will be an important factor to be taken into consideration. Here in the present case no explanation much less plausible explanation could be offered by counsel for the petitioner as to why the earlier order dated 29.2.2012 was not challenged by the petitioner. Without having challenged the same, a fresh application for dropping the said criminal proceedings preferred by the petitioner is nothing but a gross abuse of the process of law and, therefore, the same deserves out right dismissal. The present petition filed by the petitioner is accordingly dismissed, subject to imposition of costs of Rs. 15,000/- to be deposited by the petitioner with the Delhi Bar Association within a period of four weeks from the date of this order.