Vishal Kumar Sharma and Another vs State and Another

V.K. Shall J.

The petitioner has challenged the order dated 10.3.2011 passed by the Court of Ms. Madhu Jain, ASJ-01 (N), Tis Hazari Courts, Delhi in Crl. Rev. P. No. 16/2011 by virtue of which the learned ASJ has issued notice of the Revision Petition to the respondent No. 2 namely the present petitioners and in the meanwhile, stayed the operation of the order dated 28.2.2011. I have heard the learned counsel for the petitioners and have gone through the record.

Briefly stated the facts of the case are that the present petitioners, Vishal Kumar Sharma and Nirmal Kumar filed a complaint u/s 200 Cr.P.C. read with Section 156(3) Cr.P.C. against Jaipal Singh Kaushik, Kumar Vaibhav, SI Pawan Kumar and ASI Shiv Kumar alleging that they have committed various offences on 12.5.2009.

The learned Magistrate had directed an investigation to be made by the SHO u/s 156(3). On receipt of the investigation report, the learned Magistrate applied his mind and passed an order on 28.2.2011 taking cognizance of the offence u/s 218/220/341/343/34 IPC and directed the SHO P.S. Timarpur to register an FIR in respect of the aforesaid offences.

The accused were further directed to be arrested only if there is sufficient evidence in this regard.

Pawan Kumar, respondent No. 3 in the present petition felt aggrieved by the said order and accordingly, preferred a Crl. Rev. P. No. 16/2011 before the learned ASJ whereupon notice was issued to the petitioners Sh. V.K. Sharma and Sh. N. Kumar who were respondent nos.2 and 3 respectively in the said revision petition.

While issuing notice to the respondents in the said revision petition, the learned Sessions Judge stayed the operation of the order dated 28.2.2011 till the next date of hearing.

The contention of the learned counsel for the petitioners is that the order of the learned Magistrate dated 28.2.2011 was only directing the SHO u/s 156(3) Cr.P.C. to register an FIR for an offence u/s 218/220/341/342/34 IPC and to arrest the accused persons namely the respondents if enough evidence were found against them. It is contended by him that an order directing an investigation u/s 156(3) is not a revisable order and consequently Revision Petition purported to have been filed by the respondent No. 3 herein was not maintainable.

The learned counsel in support of his contention has placed reliance on the judgment of the Full Bench of the Allahabad High Court in a case titled Father Thomas Vs. State of U.P. and Another, In this judgment, the Full Bench of the Allahabad High Court has answered the reference made to it by observing that no criminal revision would lie against the order passed by a Magistrate directing an investigation u/s 156(3) Cr.P.C. On the strength of this Full Bench decision, the contention of the learned counsel for the petitioners is that the Revision Petition which has been entertained by the learned ASJ is not maintainable as the order passed by the learned Magistrate directing an investigation u/s 156(3) Cr.P.C. is not revisable and therefore, the order of stay is also bad in law.

I have considered the submissions made by the learned counsel for the petitioners and have gone through the record.

No doubt, there is a Full Bench judgment of Allahabad High Court to the effect that an order directing investigation u/s 156(3) Cr.P.C. is not a revisable order but this judgment has to be shown to the Revisionist Court instead of assailing the order of the learned Sessions Judge in a petition u/s 482 Cr.P.C. The learned Sessions Judge has only issued notice in the impugned order dated 10.3.2011. The operation of the order of the Trial Court has also been stayed till next date of hearing. The petition does not show as to whether on the subsequent date thereto, the petitioners have put in appearance in response to the notice or not. Simply on account of notice having been issued, it could not be assumed that the learned Sessions Judge has disposed of the Revision Petition in favour of the petitioners in the said Revision Petition. Therefore, in my considered opinion, the proper remedy for the present petitioners is to approach the learned ASJ and apprise him about the judgment of the Full Bench of the Allahabad High Court and make necessary submissions before the said Court Moreover, Section 482 Cr.P.C. reads as under :--

Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may, be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice

A perusal of the aforesaid Section would clearly show that no doubt, the High Court has inherent powers to pass any order to prevent the abuse of the processes of law or to secure the ends of justice but this is an extraordinary power and should be used very sparingly and certainly not in a case where there is an alternate remedy available to a party.

In the instant case, in my considered view, the petitioners have prematurely rushed to the High Court for getting their grievance redressed, when they can do the same, by approaching the learned Sessions Judge and making submissions in this regard. Therefore, I feel that the petition is totally premature and does not merit consideration. Accordingly, the present petition is dismissed with liberty to the petitioners to approach the learned Sessions Judge and make necessary submissions in this regard.