IMPORTANT POINT
High Court not only erred in entertaining accused s petition u/s 482 Cr.P.C. on same facts about which revision petition u/s 397 Cr.P.C. was earlier dismissed by it but also wrongly directed the Magistrate, who has taken cognizance on police report, to direct him to follow the procedure as prescribed u/s 203(2) Cr.P.C. 1973.

Headnote:(i) Criminal Procedure Code, 1973-Sections 397 and 482-I.P.C. 1860-Section 395-Trial Magistrate on applications of informant/Appellant adding offence under Section 395 IPC and arranging four persons in addition to already arrayed 9 accused-Revision against by accused u/s 397 Cr.P.C.-Dismissed as not pressed-Petition u/s 482 Cr.P.C. thereafter-Allowed by High Court-Whether proper? (No).
       Held : We are of the opinion that when the earlier revision petition filed under Section 397 of the Code had been dismissed as not pressed, the accused-respondents could not be allowed to invoke the inherent powers of the High Court under Section 482 of the Code for the grant of the same relief. (Para 7)
       After referring case law
       Held : We are of the opinion that no special circumstances were spelt out in the subsequent application for invoking the jurisdiction of the High Court under Section 482 of the Code and the impugned order is liable to be set aside on this ground alone. (Para 8)
       (ii) Criminal Procedure Code, 1973-Sections 482 and 203-FIR-Challan by Police-Charges framed-Applications to add another charge and add four more accused-Allowed -Petition u/s 482 by High Court-High Court directing the Magistrate to follow the procedure prescribed u/s 203 Cr.P.C.-Whether correct? (No)-Correct statutory provisions and case law referred-Appeal allowed.
       Held : Even on merits, the High Court committed a mistake of law by referring to the provisions of Section 203 of the Code and after setting aside the impugned order directing the Judicial Magistrate to hold inquiry as per Section 203(2) of the Code before deciding the inclusion of offence under Section 395 I.P.C. or impleadment of the respondents as accused persons. Chapter XV of the Code comprising of Sections 200 to 203 deals with the complaints to Magistrate and the procedure prescribed for dealing with such complaints. In the instant case no complaint was filed before the Magistrate by the complainant requiring him to follow the procedure under Chapter XV. Reference to sub-section (2) of Section 203 of the Code is misconceived inasmuch as no such sub-section exists in the statute book. (Para 9)
       Referring correct statutory provisions and 1967(2) SCR 423 and JT 2001(6) Supreme Court 403.
       Held : The present case is squarely covered by the aforesaid judgments which renders the order impugned not sustainable under law. Under the circumstances, the appeal is allowed by setting aside the order impugned and by upholding the order of the Additional Sessions Judge. (Paras 13 & 14)

JUDGMENT

Sethi, J.-Leave granted.

2. Aggrieved by the order of the Additional Sessions Judge, Deeg by which charges were framed against them for offences punishable under Sections 147, 148, 323, 324, 149, 427 and 395 of the Indian Penal Code, the respondents filed a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") praying for quashing the aforesaid order. Holding that the Magistrate, being the court of committal, had no power to add four respondents as accused-persons without adopting procedure as prescribed under Section 203 of the Code, the High Court allowed the petition of the respondents and set aside the order the court by which cognizance of offence under Section 395 of the Indian Penal Code was taken. The case has been remanded back to the learned Magistrate to hold inquiry as per the provisions of Section 203(2) of the Code with direction that if he finds that a case under Section 395 IPC is made out, he will pass necessary orders against the accused persons and commit the case to the Sessions Judge, if necessary.

3. The facts giving rise to the filing of the appeal are that on 10.3.1988 when the appellant-informant was sitting at his shop in the company of his brothers, the accused persons, namely, Chhaju Khan, Bannu Khan, Nasru Khan, Zakir Khan, Mumrej Khan, Razak Khan, Kallu, Nannu, Ramesh Mishtri and four others came there and assaulted Hotilal, one of the brothers of the appellant with intention to kill him. The other brothers of the appellant were also assaulted as a result whereof they received injuries. Accused persons took away a sum of Rs. 600 along with some papers from the shop of the informant. The showroom (shop) was also damaged resulting in loss to the property. A case was registered against the accused persons under various sections and after investigation charge-sheets were submitted against them. As the charge under Section 395 IPC was not added against the accused-persons, the appellant-complainant submitted a protest petition seeking the addition of the aforesaid offence against them. By another application the appellant-complainant sought the addition of four accused persons, namely, Babu, Bashir, Sultan and Rajjal as their names were allegedly wrongly dropped from the list of accused persons by the investigating agency. The committal Magistrate allowed the applications and committed the case to the court of Sessions whereafter the learned Additional Sessions Judge being the trial Court framed the charges against the respondents including the charge under Section 395 IPC.

4. The respondents submitted before the High Court that the Magistrate had committed a grave error by taking cognizance for offence under Section 395 IPC as also by adding the names of aforesaid four accused persons while committing them to the court of Sessions to stand their trial .

5. Learned counsel appearing for the appellant made a two-fold submission to assail the judgment of the High Court. Firstly, he contended that as the earlier revision petition filed by the accused persons under Section 397 of the Code had been rejected by the High Court vide order dated 13.7.1990 (Annexure P-6), they had no right to file the petition under Section 482 of the Code with prayer for quashing the same order. Secondly, it is submitted that the High Court committed a mistake of law by directing the Magistrate to follow the procedure as prescribed under Section 203 of the Code.

6. The order of the High Court dated 13.7.1990 shows that 13 respondents-accused persons had filed the revision petition challenging the order of the Magistrate taking cognizance for the offence under Section 395 IPC and for impleading respondents 10 to 13 as accused persons. After the commitment, the Magistrate as well as the Sessions Judge had issued non-bailable warrants against the accused persons. When the High Court directed accused persons to appear before the trial court and furnish their bai

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2001 Supreme(SC) 1310

Cases Referred (3)