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Judgment
P.K. Mohanty, J.—This petition u/s 482, Cr.P.C. has been filed with the following prayer :
"...that in the facts and circumstances of the case stated above Your Lordships may be pleased to admit this application, call for the lower Court records of I.C.C. Case No. 7 of 1995 as well as G.R. Case No. 42 of 1995 of the Court of Judicial Magistrate, First Class, Rampur alongwith other connected records of the Revisional Court and after hearing the parties the application be allowed and the impugned orders under Annexures 4 and 5 as well as the entire proceeding of the I.C.C. Case No. 7 of 1995 of the Court of Judicial Magistrate, First Class, Rampur may be quashed and till then the further proceeding of the said complaint case may kindly be stayed;
And /or to pass such other order /orders as this Hon''ble Court deems just equitable and proper in the facts and circumstances of the present case."
The short facts of the case are that petitioner No. 1 having developed the intimacy with opposite party No. 1, when intimacy gave rise to pregnancy of the lady a Panchayat was convened in the village. The Panchayat settled up the matter and decided that petitioner No. 1 shall marry the complainant and accordingly the marriage was solemnised during Dasshara of 1994. Opposite party No. 1-wife resided in the house of the petitioner No. 1 and both lived together as husband and wife. It was alleged that sometimes after the marriage, petitioner No. 1 and his family members started ill-treating the complainant and tortured her, for which she had attempted to commit suicide, but subsequently restrained herself because of the child she was carrying in her womb. On 8.4.1994 a female child was born hale and hearty. On the 21st day ceremony of the child i.e. on 30.12.1994, the complainant-wife was asked to clean the cow-shed and when she was doing so, she heard an abnormal sound of her husband and while rushing inside the house, she found that the petitioners were hiding the child having covered her with a cloth. They disclosed that the child was dead. The complainant-wife was threatened not to disclose the matter and was kept confined inside the house for several days. The dead child was kept in the house for a day without informing the castemen and any one of the village and subsequently she (dead child) was taken out and cremated somewhere during the night. Some days thereafter, the complainant was brutally assaulted and driven out of her matrimonial home and she came to her parents'' house and disclosed about the incident. A complaint was lodged before the learned Magistrate, who recorded the initial statement of the complainant and made an enquiry u/s 202, Cr.P.C., wherein five witnesses were examined and he took cognizance of the offences under Sections 302/201, I.P.C. against the accused persons and issued processes.
The petitioners carried a revision to the learned Additional Sessions Judge, Bolangir against the order of cognizance. The contention before the Revisional Court was that no prima facie case was made out under Sections 302/201, I.P.C. and as such, the order of cognizance was bad in law and no process could be issued by the learned Magistrate. However, the learned Additional Sessions Judge, on examination of the materials on record found a prima facie case against the petitioners and held that there was no infirmity or illegality in the order of cognizance of the Magistrate for interference in a revision. The Revisional Court found that the requirements of Section 202(2), Cr. P.C. has also been complied with.
The learned Counsel for the petitioners challenges the order of cognizance passed by the learned Magistrate and the revisional order of the learned Additional Sessions Judge rejecting the revision and affirming the order of cognizance. The learned Counsel submits that in a petition u/s 482, Cr. P.C. the High Court should interfere with the order of cognizance as well as the order of the learned Revisional Court, inasmuch as, even though this petition is against the revisional order, the High Court should exercise its inherent jurisdiction since the orders are contrary to law and against materials on record.
The learned Counsel has referred to a decision in Basudev Bhoi Vs. Bipadabhanjan Puhan and Another, to contend that a petition u/s 482, Cr.P.C. is entertainable by the High Court at the instance of the revision petitioner and there is no bar under law for interfering with the order. In the aforesaid judgment, the learned Single Judge referring to several judgments of this Court as well as of the Apex Court held that an application u/s 482, Cr.P.C. is maintainable, though a person has availed of the remedy of revision u/s 397, Cr.P.C., but the parameters of Section 482, Cr.P.C. have always to be kept in mind.
Law is wellsettled that there is no absolute bar for the High Court to entertain an application u/s 482, Cr.P.C. at the instance of the revision petitioner in the Court below but the inherent power can only be exercised in exceptional circumstances to prevent miscarriage of justice or abuse of the process of the Court or a flagrant violation of the rule of natural justice. The Apex Court in Krishnan and another Vs. Krishnaveni and another, has laid down that 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 u/s 397(1) or under inherent powers of the High Court u/s 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. But, however, it has been observed that when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of 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. It is further held that 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, but it has to be exercised sparingly.
This Court in a recent judgment in Suryamani Gerada v. Harekrushna Harijan, (1999) 16 O.C.R 496 taking into consideration several decisions of this Court as well as of the Apex Court observed at paragraph 5 thereof :
"It is the settled principle of law that in view of a bar u/s 397(3), Cr.P.C., a second revision by the unsuccessful petitioner after dismissal of the first one by the Sessions Judge is not maintainable and inherent power of the High Court cannot be exercised because of the bar contemplated u/s 397(3), Cr. P.C. The Apex Court in Deepti '' Arti Rai v. Akhil Bai and Ors. (1975) 5 SCC 751 has laid down that after dismissal of a first revision by the Sessions Court, a revision application is not maintainable at the instance of the unsuccessful revision petitioner and that inherent power u/s 482, Cr.P.C. cannot be utilised for exercising powers which are expressly barred by the Code. In Ganesh Narayan Hegde Vs. S. Bangarappa and Others, it has been held that the High Court should not act as a second Revisional Court. This Court in Keshap Chandra v. Kishore Chandra Misra 69 (1990) CLT 23 has held that a second revision by the self-same party, who did not succeed before the learned Sessions Judge in the first revision is not maintainable."
In view of the settled position of law, even though there is no absolute bar for entertaining an application u/s 482, Cr. P.C. at the instance of a revision petitioner in the Court below, the High Court,, even though vested with the inherent power, should exercise it only in exceptional cases, where it is brought to the notice of the Court that there has been a flagrant violation of the rule of law or the Courts below have acted contrary to the statutory provision or there is a failure of justice. The exercise of powers u/s 482, Cr. P.C. as against a revisional order and that too at the instance of the revision petitioner as a matter of routine in normal course is not conceived of because of the specific statutory bar u/s 397(3) of the Code for entertaining a second revision at the instance of a revision petitioner.
It is the submission of the learned Counsel that the complaint was instituted before the learned J.M.F.C., Rampur by the opposite party No. 1, registered as Cr. I.C.C. No. 7 of 1995, when admittedly the complainant had mentioned in her complaint petition itself that, she had lodged an F.I.R. before the police. The learned Counsel for the petitioner then contended that the learned Magistrate ought to have acted in accordance with Section 210 of the Code of Criminal Procedure in staying the trial and calling for a report on the matter from the Police Officer conducting investigation, since the complainant herself mentioned in the complaint petition that she had informed the police of the incident, but no action has been taken thereon. It is submitted that such mention in the complaint petition was enough for the learned Magistrate to call for a report and stay his hands till then which having not been done, the learned Magistrate has committed an illegality.
The learned Counsel has referred to a decision of this Court in Santosh Kumar Sahu v. M. Prakash Rao Dora and Ors. (1993) 6 O.C.R. 438 in support of his contention that once it is brought to the notice of the learned Magistrate, conducting an enquiry that on the self-same allegation, the Police is investigating the matter, he has to call for a report and stay his hands. There is absolutely no quarrel over the proposition of law raised. But the question is as to whether such fact has been brought to the notice of the learned Magistrate. Section 210, Cr. P.C. is quoted hereinbelow :
"210 (1) When in a case instituted otherwise than on a police report (hereinafter referred to as complaint case) it is made to appear to the Magistrate during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer u/s 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the arising out of the police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, when was stayed by him, in accordance with the provisions of this Code."
On a reading of Sub-section (1) of Section 210, Cr.P.C. it is clear that when a case is instituted and it appears to the Magistrate in course of inquiry or trial that the investigation by police is in progress in relation to the offence which is the subject matter of the inquiry or trial, he shall stay the proceeding of the said inquiry or trial or call for a report from the police officer conducting investigation in the matter. It transpires from the complaint petition at paragraph-6 thereof, a copy of which is annexed by the petitioner, that the complainant has clearly stated that the Officer-in-Charge of Rampur Police Station did not record the statements of the complainant and the witnesses nor the Officer-in-Charge communicated any information to the complainant, as to whether a case has been registered as a police case or not and in that view of the matter, the complainant having found no other alternative, has filed the complaint. Undisputedly, the complaint was filed on 1.6.1995 and cognizance was taken on 25.9.1995 and the charge-sheet No. 26 dated 4.7.1996 was filed under Sections 498A/34, I.P.C. The learned Magistrate, after recording initial statement of the complainant and statements of the witnesses examined u/s 202, Cr.P.C. and recording the gist of the statements of five witnesses, has taken cognizance of offences under Sections 302/201, I.P.C. and directed issuance of summons to the accused persons fixing 27.10.1995 as the date of appearance. In that view of the matter, nothing tangible having been brought to his notice, there was no occasion for the learned Magistrate to stay his hands and call for a report in terms of Section 210, Cr.P.C. The contention of the learned Counsel, therefore, is to be rejected. The Revisional Court found also prima facie materials for taking cognizance of the alleged offence and refused to interfere in the matter. It may be noted that in the revision before the learned Additional Sessions Judge the only ground taken was that there was no material before the learned Magistrate for taking cognizance and as recorded by the learned Additional Sessions Judge, no other point was urged. In any view of the matter, I find no merit in the petition to entertain the same.
Accordingly, this Criminal Misc. Case is rejected.