Anil Nayyar v. M/SSHIVAMTEXTILELTD

1. RespondentfiledacomplaintunderSection200Cr.P.C.alongwithan application under Section 156(3) Cr.P.C. on which complaint after examining the authorized representative ofthe complainant and its other witnessestheteamed ACMM dismissedthecomplaintbytheorderdated4' November,2016 and declined to summon the petitioners as accused as it held that no criminal colour could be given to a transaction which was purely civil in nature.

2. Aggrieved by the order dated 4" November,2016 passed by the learned ACMM the respondent filed a revision petition before the learned Additional SessionsJudge which was decided bytheimpugned orderdated 22"''Febmary,2017whereinthelearnedASJonthebasisofevidenceledby respondent company came to the conclusion that based on the presummonmg evidence led by the complainantitcannot be said that the case was of civil nature and commission of any cognizable offence was not W.P.(CRL)979/2017 Page 1 of[5] 2019:DHC:7622 disclosed. Learned Additional Sessions Judge held thatthere were sufficient grounds to proceed against the petitioner on the allegations of use of criminalforce againstJitesh Arora employee ofthe complainantcompanyin snatching four cheques and also for having hurled abuses at him and threatening them ofdire consequences. Thus,the learned ASJ set aside the order dated 4^'* November, 2016 and partly allowing the revision petition directed summoning ofthe petitioner under Sections 355,379 and 506 IPG. Hence the presentpetition.

3. The short issue raised by leamed counsel for the petitioner is that by virtue ofSection 398 Cr.P.C.the onlyjurisdiction available with the leamed Additional Sessions Judge was that it could have directed further enquiry under Section 202 Cr.P.C. and not directed that the petitioner be summoned under Section 204 Cr.P.C. for particular offences. Contention of leamed counsel for the petitioner is liable to be negated for the jurisdiction of a Sessions Court or a High Court in revision is wide enough as contemplated under Section 397, 399 read with Section 401 Cr.P.C. and not confined to Section 398 Cr.P.C. alone.

4. Sections 397,398,399,401 Cr.P.C.read as under: "397. Callingfor records to exercisepowers ofrevision. (1) The High Court or any Sessions Judge may callfor and examine the record of any proceeding before any inferior Criminal Courtsituate within its or his localjurisdictionfor the purpose ofsatisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,recorded orpassed, and as to the regularity ofanyproceedings ofsuch inferior Court, and may, when callingfor such record, directthatthe execution ofanysentence or order besuspended, and ifthe accused is in confinement, that he be released on bail or on his own bondpending the examination ofthe record.

W.PJCRL)979/2017 Page2of[5] i Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellatejurisdiction, shall he deemed to be inferior to the Sessions Judgeforthepurposes ofthissub-section andofsection 398. (2) Thepowers ofrevision conferredbysub-section(1)shall not be exercised in relation to any interlocutory orderpassed in any appeal, inquiry, trialor otherproceeding. (3) Ifan application under this section has been made byany person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other ofthem.

398. Power to order inquiry. On examining any record under section 397or otherwise, the High Court or the Sessions Judge may direct the ChiefJudicial Magistrate by himselfor by any of the Magistrate subordinate to him to make, and the Chief Judicial Magistrate may himselfmake or directanysubordinate Magistrate to make,further inquiry into any complaint which has been dismissed under section 203 or sub- section (4) of section 204, or into the case of any person accused of an offence who has been discharged: Provided that no Court shall make any direction under this sectionfor inquiry into the case ofanyperson who has been discharged unless such person has had an opportunity of showing cause whysuch direction should not be made.

399. Sessions Judge'spowers ofrevision. (1) In the case ofany proceeding the record of which has been calledfor by himself, the Sessionsjudge may exercise all or any ofthepowers which may be exercised by the High Court undersub-section(1)ofsection 401. (2) Where any proceeding by way ofrevision is commenced before a Sessions Judge undersub-section(1), theprovisions of sub- sections (2), (3),(4)and(5)ofsection 401 shall, sofar as may be, apply to such proceeding and references in the said.sub-sections to the High Courtshall be construed as references to the Sessions Judge. W.P.(CRL)979/2017 Page3of[5] /o (3) Where any application for revision is made by or on behalfofan person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by Way of revision at the instance ofsuch person shall be entertained by the High Court or any other Court.

401. High Court'sPowers ofrevisions. (1) In the case ofany proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any ofthe powers conferred on a Court ofAppeal by sections 386, 389, 390 and 391 or on a Court ofSession by section 307and, when the Judges composing the Court ofrevision are equally divided in opinion, the case shall be disposed ofin the manner provided bysection 392. (2) No order under this section shall be made to the prejudice ofthe accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way ofrevision shall be entertained atthe instance oftheparty who could have appealed. (5) Where under this Code tan appeallies butan applicationfor revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous beliefthatno appeallies thereto and that it is necessary in the interests ofjustice"

5. A bare perusal of these four.provision reveals that in a revision petition filed under Seetion 397 Cr.P.C. while examining the correctness, legality or propriety of any finding, sentence or order. Sessions Court or High Court can direct further enquiry into any complaint which has been W.P.(CRL)979/2017 Page4of[5] dismissed under Section 203 or sub-Section(4)of Section 204 Cr.P.C. and pass any such order which a Court of Appeal exercises under Section 386, 389, 390 and 391 Cr.P.C. Thus, directing further enquiry is one of the options available under Section 398 Cr.P.C., however the jurisdiction under Section 399 read with Section 401 Cr.P.C. is wide enough to correct the illegality, impropriety or incorrectness ofany finding orjudgment or order passed by the leamed Metropolitan Magistrate.

6. There being no error in the impugned order,this Court finds no merit in the petition and the same is dismissed.

JUDGE APRIL 09,2019 ga