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1978 Supreme(Sikk) 2
SIKKIM HIGH COURT
MAN MOHAN SINGH, GUJRAL, A. M. BHATTACHARJEE, J.
KINZANG DAHDUL
VERSUS
RANSUL KHARGA AND ANOTHER
Criminal Revn. No. 2 of 1977,
Decided On : 11 -1 -1978
The exercise of the revisional jurisdiction or granting of "a passport" to the High Court under S. 438, Cr. P. C. 1898 "is not a matter of easy insouciance but anxious advertence," failure will stultify the scheme of Criminal Revisional Jurisdiction and will flood the High Court "with cases of lesser magnitude with illegitimate entry."
Headnote:
CRIMINAL REVISION - Limitation - Delay in filing - Explanation - Maintainability - Private party - Exceptional cases - Interference with acquittal - Scope - S. 436, Cr. P. C. - Discharge of accused - Further enquiry.
Fact of the Case:
The petitioner-complainant filed a complaint against the accused-respondent alleging trespass and removal of cardamoms from his field. The District Magistrate forwarded the complaint to the police for investigation and treated it as an FIR. The accused was released on bail. The police submitted a charge-sheet under S. 447/379, IPC, but later submitted a final report stating no evidence was available for prosecution and the dispute was civil in nature. The District Magistrate discharged the accused based on the final report.
Finding of the Court:
The High Court held that the learned Sessions Judge erred in reporting the case to the High Court under S. 438, Cr. P. C. and should have declined to interfere. The Court found no manifest illegality or defect in the proceedings and held that the findings of the learned Sessions Judge that some interpolation in the record was made were not justified.
Issues: 1. Whether the criminal revision was filed within a reasonable time? 2. Whether a private party can maintain a criminal revision in a police case? 3. Whether the Sessions Judge should have forwarded the case under S. 438 or ordered further enquiry under S. 436 of the Code?
Ratio Decidendi: 1. The Court held that where the law prescribes a period of limitation for any action, a party may come to the Court at the last moment before the expiry of the period allowed under the law and need not be diligent or show his diligence during the period so allowed or prescribed. But where the law allows an action but does not prescribe any period for initiating such action, a party must initiate such action with all due diligence and reasonable promptitude. Therefore, a revisional application is to be filed within a reasonable period and ordinarily the period allowed for filing appeals may be regarded as the standard for reasonable time within which applications for revision should ordinarily be filed. 2. The Court held that the right of a private complainant to move in Criminal revision has been recognised by the Supreme Court in exceptional cases where the interest of public justice requires interference for the correction of manifest illegality or the prevention of gross miscarriage of justice. 3. The Court held that in a case which attracts the provision of S. 436 the Sessions Judge must act thereunder and not report the case under S. 438. Therefore, even assuming that the learned District Magistrate went wrong in releasing the accused and in dropping the proceeding, the learned Sessions Judge should not have reported the case to the High Court under S. 438, Cr. P. C. but should have ordered further enquiry under S. 436 of the Code.
Final Decision: The High Court declined to accept the reference made by the learned Sessions Judge.
A. M. Bhattacharjee, J. :- The learned Sessions Judge of Sikkim at Gangtok has reported this case under S.438, Cr. P. C. (1898) with recommendation that the order of the learned District Magistrate dated 5th Jan. 1977 passed in Criminal Case No. 332 of 1976 discharging the accused-respondent should be set aside and the case be sent back to some other competent Magistrate for further enquiry and trial. But after hearing the petitioner-complainant and the accused respondent and the learned Advocate-General appearing for the State and after going through the records of case and the explanation submitted by the trying Magistrate to the learned Sessions Judge, we are of opinion that the learned Sessions Judge was wrong in reporting this case to this Court under S.438 of Cr. P. C. 1898, and that we must decline to interfere in this case.
2. The case of the petitioner-complainant is that he filed a complaint against the accused-respondent before the District Magistrate, Gyalshing, alleging that the respondent had trespassed into his cardamom field and removed cardamoms therefrom and the District Magistrate forwarded the complaint to the O/C, Gyalshing Police Station for investigation after treating the complaint as the First Information Report. The accused-respondent was thereafter produced before the District Magistrate on 29-9-76 and was released on bail. The case of the petitioner is that on that very day, i. e. tion 447/379, I. P. C. was also filed against the accused-respondent and that the said fact was also noted by the District Magistrate in the order passed by him on the same day. But the petitioner alleges, that notwithstanding submission of the charge-sheet on 29-9-1976 under S.447/379 of the I. P. C. the learned District Magistrate discharged the accused-respondent on the ground that the police submitted a final report in the said case alleging that no evidence was available to justify any criminal prosecution and that the dispute between the parties as disclosed during the investigation was only of a civil nature.
3. If in a criminal case a final report is submitted the police asserting that no material could be discovered disclosing any offence, the order of the trial Magistrate discharging the accused and/or dropping the proceeding is only usual and is in no way irregular. But, as already noted, the case of the petitioner is that a charge-sheet under S.447/379 of the Indian Penal Code was in fact submitted on 29-9-1976 and the submission of the charge-sheet was duly noted by the District Magistrate in his order of the same date recorded in the order sheet and that being so, there could be no occasion for discharging the accused and dropping the proceedings on the basis of a "later final report, as alleged, and that in doing so the learned District Magistrate has committed a manifest error of law justifying intervention by this Court in revision.
4. In support of this contention, the petitioner-complainant filed before the learned Sessions Judge certified copy of the order dated 29-9-1976 which reads as hereunder:-
"Accused Ransur Kharga Chetri produced before me. Shri Indra Bahadur Basnet has moved a bail petition of the accused.
The Police have submitted a charge-sheet U/S 447/379 IPC under which Section the offence is non-bailable. The O/C Gyalshing P. S.has also submitted a report that the investigation has been completed and CS is being prepared but is skeptical about the accused's appearance in Court.
I allow the accused to go on bail of Rupees twenty thousand with one surety of like amount. The accused should appear in the Court of the D. M. on 29-10-1976."
The original order in the case-record of the same date, however, reads as under:-
"Accused Ran Sur Kharga produced before me. Shri Indra Bahadur Basnet has moved a bail petition on behalf of the accused.
The Police have submitted a report stating that charge-sheet u/s. 447/379IPC is being submitted under which sections the offence is non-bailable. The O/C Gyal
