Dheeraj Arora vs State of Haryana

Anita Chaudhary, J.—The instant revision petition has been filed assailing order dated 24.02.2012 passed by learned Judicial Magistrate Ist Class, Rohtak, who framed charges under Sections 467, 471, 417, 120B of Indian Penal Code (for brevity, ''the IPC) and Section 13 of the Gambling Act (for short, ''the Act'') against the petitioners in FIR No. 224 dated 30.04.2011, registered at Police Station Civil Lines, Rohtak.

Briefly noticing the facts. The police received secret information that cricket betting for IPL 20-20 matches was going on. On receipt of information, a raid was conducted and the petitioners were apprehended. Several laptops, computers, note books, mobiles and SIM cards were recovered. The allegations were that the petitioners had forged identity cards and were misusing the same to obtain SIM cards.

The police after completion of the investigation had filed the report against the petitioners. The trial Court framed charges u/s 13A of the Act, Sections 417, 120B, 467 and 120B and 471 and 120B IPC on 24.02.2012.

The petitioners have assailed the order framing charges against the petitioners on the plea that no forgery had been committed and the case would not fall under Sections 467 and 471 IPC. Additionally, it was pleaded that charge u/s 13-A of the Act could not be framed as the gambling was not in a public street or a thorough fare and as per the allegations of the prosecution, the gambling was taking place in a residential premises.

Notice was given to the respondent-State. They have filed the reply.

I have heard learned counsel for the petitioners as well as learned State counsel and have also gone through the paper book.

The counsel for the petitioners confined his arguments to the charge framed u/s 13-A of the Act and had contended that a residential house was not a public place and no charge under this section could have been framed. It was urged that the petitioner could directly file a revision before this Court instead of approaching the Sessions Court, as both the Courts have concurrent jurisdiction. It was urged that a party cannot be asked to first approach the Sessions Court.

On the other hand, it was urged that the order passed by the Magistrate was revisable order and a revision could have been filed before the Sessions Court and since no arguments have been addressed on the framing of charge under various other sections of IPC, the remedy with the petitioner was also to approach the trial Court with an application for amendment/alteration of charge. It was urged that it is a practice that when two forums are available then as a matter of propriety, the parties should first approach the lower forum, except in rare and special circumstances.

It is not disputed that the order of framing charge is revisable. The question is whether this Court should entertain a revision petition which can be entertained and decided by the Sessions Judge. It is undoubtedly true that that Section 397 of the Code of Criminal Procedure confers jurisdiction of revision concurrently on the Court of Sessions as well as the High Court, but it is equally true that where the jurisdiction is conferred on two Courts, the aggrieved party should ordinarily first approach the inferior of the two Courts unless exceptional grounds for taking the matter directly before the Superior Court is made out. Reference can be made to Tejram Gaikwad Vs. Smt. Sunanda Gaikwad and Others, followed in Shri Padmanabh Keshav Kamat Vs. Shri Anup R. Kantak and others,

An identical question arose before the Hon''ble Rajasthan High Court in Natwar Lal and Others Vs. State and Others, , wherein similar view was reiterated and it was held as under:-

In view of the above discussion, the approach taken by the Bombay High Court in Padmanabh Keshav Kamat''s case (supra), which is based on the judgment of the Hon''ble Supreme Court in Pranab Kumar Mitra''s case (supra) is a correct proposition of law with regard to the scope and ambit of Section 397 of the Code and on the basis of this, I have no hesitation in coming to the conclusion that when the two forums are available, then certainly it is a matter of propriety for the party to first approach the lower forum, except in rate and special circumstances...." By doing this, the party getting order from Magistrate will get double remedy, firstly he will approach the court of Sessions in revision, which is a highest court of criminal trial and after examining the legality, propriety and correctness of the order of sentence, the Sessions Court comes to the conclusion that the order requires no interference u/s 397 of the Code, then the party has still second remedy to approach the High Court u/s 482 Cr.P.C. if both the courts below have passed such orders which either cannot give effect to the orders in this Code or results in abuse of the process of law or otherwise does not secure the ends of justice....

In the present case, the petitioners have been unable to show any exceptional circumstances or reasons and on that account the revision petition deserves to be dismissed.

In view of what has been discussed above, the instant revision petition is dismissed. However, the petitioners are given the liberty to approach the Sessions Judge concerned for redressal of the grievance. It is also made clear that in case any revision petition is filed within a month from today, the revisional Court will not insist on the point of limitation.