Sahil Khajuria And Ors vs Sham Lal Gupta

Through the medium of instant petition filed under Section 561-A CRPC, petitioners inter alia seek quashing of the criminal complaint titled Sham Lal Gupta vs Narinder Vaid and ors., pending before the learned JMIC, Billawar along with order dated 19.05.2014 whereby the court below took cognizance in the matter against the petitioners herein and also order dated 18.03.2016 by virtue of which the court below has declined to recall the order of taking cognizance dated 19.05.2014.

Brief facts of the case are that the locals of village Kishanpur made a complaint to the Tehsildar Billawar on 05.12.2013 that one Sham Lal Gupta and his associates have closed the bandobasti public pathway passing through the land under Khasra No.342 village Kishanpur by raising a Danga, due to which it has become impossible for them to take their cattle for grazing to the forest and also the movement of the human being/villagers has stopped on that pathway; that seeing the public difficulty and the seriousness of the situation, the Tehsildar ordered the Naib Tehsildar Dambra for detailed report. By the orders of the Tehsildar, the Naib Tehsildar along with Patwari halqa and Sarpanch of the Panchayat concerned and other members of the deputation reached on spot and the Naib Tehsildar found on spot that the age old and recorded pathway which was the lifeline of the village was forcibly being closed by Sham Lal Gupta and his associates. The matter was brought to the notice of the higher officers, who directed to ensure that the pathway is made open as usual and normalcy be restored in the village. The hurdle created by the respondent and his associates were removed and the pathway was cleared and opened for the free movement of the public as well as that of livestock; that although no civil or revenue proceedings were initiated by the said Sham Lal Gupta, but in fit of rage with intention to take revenge and teach them a lesson on 06.12.2013 filed a criminal complaint against 25 persons in the court of CJM, Kathua, who transferred the said complaint to the court of JMIC, Billawar for disposal under law.

On receipt of the complaint, the court below by exercising powers under Section 202 Cr.P.C. referred the inquiry to the SHO Billawar, who after conducting the thorough inquiry whereas on one hand perused and examined the revenue record, on the other hand also visited the spot and also recorded the statements of large number of witnesses. Ultimately, the SHO concerned filed his inquiry report with the finding that the complaint filed by respondent No.1 is not based on truth and has been filed only to settle the score.

The court below on 19.05.2014 took cognizance against the petitioners only, but left other 22 accused who were also named and implicated in the complaint.

The respondent herein filed a criminal revision challenging the order dated 19.05.2014 before the learned Sessions Judge, Kathua, who vide order dated 05.09.2014 disposed of the said revision petition by setting aside the order dated 19.05.2014 directing the court of 1st instance to pass a fresh reasoned order. The operative part of the said order is reproduced as under:

"After the report, as directed u/s 202 CrPC is received, the Magistrate is required either pass an order issuing the process or dismiss the complaint, but before passing any such order, the Magistrate is required to record his reasons for doing so. Order impugned would show that trial court has, after receiving the report, issued the process against accused 1,2 & 7 and rest of the accused listed in the complaint have been left, but there is no order recorded by the learned trial court giving the reasons as to why said accused have been left. By not giving the reasons for leaving said accused, the trial court has committed an illegality, as such, the order impugned is liable to be set aside. Therefore, as the trial court has not given any reason in the order impugned, the appeal is allowed and the order is set aside. After considering the matter, the trial court shall given reasons and pass afresh order. The record of the trial court be sent back forthwith. Petitioner shall appear before the trial court on 20.09.2014. The record of this court be consigned to records after due compilation."

The said order i.e. 19.05.2014 was also challenged by the petitioner Nos.2 & 3 herein against taking of cognizance and issuance of process against them through the medium of a petition under Section 561- A Cr.P.C. No.230/2015, that too came to be disposed of by this court vide order dated 22.05.2015. The concluding para of said order is reproduced as under:

"This court cannot step into shoes of the trial court to deal with the matter that is essentially factual in character and expected to be dealt with by the trial court. Petitioners are given liberty to agitate whatever is pleaded in the petition before the learned trial court to persuade the trial court to drop the proceedings against the petitioners.

Petitioners are discharging official duties in different parts of Jammu Division. The trial court, therefore, shall not insist on their perusal appearance unless their appearance is required for recording their statements and they are represented by a lawyer. Let the objections, if any raised be dealt with at the earliest so that in the event merit is found in the objections raised, the petitioners are not dragged in otherwise avoidable litigation.

Disposed of as, above."

The petitioners, as per the order dated 22.05.2015, filed an application taking all the objections to the maintainability of the said complaint. The trial court has now vide its order dated 18.03.2016 decided the application of the petitioners having been filed in pursuance of the order of this court dated 22.05.2015. It is apt to reproduce the operative para of the said order as under:

"I am also of opinion that, having aside ground of Section 197 Cr.P.C being taken by accused persons, this court cannot recall cognizance order taken on 13.10.2014 because criminal court does not have power to review its own order. And to that extent, instant application appears to be non-maintainable.

For all what has been discussed above, instant application of accused persons is hereby dismissed and be annexed with main file."

Heard learned counsel for the petitioners and have perused the record.

The court below has misdirected itself by saying that, it cannot review its own order. Section 369 of State Cr.P.C. reads as under:-

"Section 369. Court not to alter-judgment.- Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of the High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct clerical error."

Whereas section 362 of Central Cr.P.C., which is almost pari materia to section 369 of State Cr.P.C., there is little bit difference. Section 362 reads as under:-

"362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

Therefore, there is some difference in the language employed by these two sections. The material difference in the context of the situation is that whereas Section 369 of the State Code provided that a criminal Court shall not alter or review its 'judgment after it has signed it'; Section 362 of the Central Code provides that a criminal Court shall not alter or review its judgment or final order disposing of a case.

The reasoning which has prevailed with the learned Magistrate is that since the embargo created by section 369 of code operates against the judgment, so he cannot review even order of taking cognizance. In criminal cases, judgment includes the pronouncement of guilt of accused or of his acquittal, if he is convicted, the sentence. A judgment may also include the reasoning forming the basis of the court's decision. It may be last decision from a court that resolves all issues in dispute and settles the parties' rights with respect to those issues. Judgment means the statement given by judge on the grounds of his decision in one way or another. Order means final order which is passed during proceeding which decides some right of parties to litigations. In terms of section 369 of State code, once a judgment is signed, it cannot be reviewed except to correct clerical error.

Now next question to be decided is as to whether order of taking cognizance is judgment, which cannot be reviewed in terms of section 369 of State code.

'Judgments' and 'orders' are terms that are very different in terms of meaning. In court, a judgment is a decision with finality in which a court has issued to end, close, or clear a lawsuit or prosecution. It is the last segment of an ordinary court case. Judgments thus create resolutions for controversies and determine what each party or side is obligated to do (pay charges, be imprisoned, or be cleared from all charges). These obligations are part of the content stated within the judgment. Other statements within the judgment are the telling of the winning party and injunctive relief among others. Unlike court orders, judgments usually follow a format. After all fact presentations, evidence gatherings, thorough interrogations and fault finding mechanisms have all been exhausted, the court is then bound to seal it all with a final verdict. Judgments formally end the court's hold of the case.

It is the result of an adjudication (balancing evidences).

Whereas 'order' means direction or mandate of a judge or a court which is not a judgment or legal opinion directing that something be done or that there is prohibition against some act. This can range from an order that a case will be tried on a certain date.

Thus order of taking cognizance cannot be termed as judgment; it can be termed as order to which bar under section 369 of State code does not apply.

The Division Bench of Jammu & Kashmir High Court in case titled Mirza Mohd Afzal Beg and Ors. v. State of Jammu and Kashmir and Ors., reported in A.I.R. 1960 Jammu and Kashmir 1, it has been observed that it is not valid to contend that the Magistrate is absolutely bound by an order of an interlocutory character and has no right to pass a different order unless his earlier order has been set aside by a superior Court in appropriate proceedings. It has been further observed in that decision that the principle applicable to a judgment does not apply to an interlocutory order and that the Magistrate is entitled to pass a different order at a later stage.

Further, this court in present case already directed the petitioners in 561-A Cr.P.C. No. 230/2015 dated 22.5.2015, to file an application for dropping the proceeding before trial court. But trial court has passed the impugned order without going through the relevant law on the subject as narrated above. In view of above discussion, I am of view that magistrate has power to pass appropriate order in application for dropping the proceeding in criminal cases.

Hence this petition is allowed. Order of trial court is set aside, who is directed to pass appropriate order after hearing both sides afresh.