Judgment delivered on 27th April v. Mr. Sudershan Rajan

Masjid. Thereafter, a case was registered vide FIR No.438/96 on the complaint of Dr.Fasihuddin Kamil (petitioner). Post investigation by the police, persons namely Basit Ali, Anwar Ahmed, Ali Hasan, Crl.Rev.P.No.317/2005 Badruddin, Shamim Ahmed and Neaz Ahmed were challaned under Section 147, 148, 149, 323, 427, 109, 114 IPC and sent for trial, while the name of Sh.Q.D. Qureshi was placed in coloumn no.2 of the chargesheet. 5 As per the petition, statements of Dr.Fasihuddin Kamil, PW-1 and his wife Smt. Afshan Qureshi were recorded in the court wherein they narrated the whole incident and specifically stated the role of Sh.Q.D. Qureshi. Subsequently, an application under section 319, Code of Criminal Procedure, 1973 (hereinafter referred to as, ―Cr.P.C.‖) was made by the complainant (Dr.Fasihuddin Kamil) before the trial court, that Sh.Q.D. Qureshi (respondent no.2, herein) be summoned as an accused, and upon which the learned Metropolitan Magistrate passed an order on 12.12.2002 whereby Sh.Q.D. Qureshi was summoned as an accused as his name figured in the original complaint as well as the witnesses had deposed against him. Subsequently, Sh.Q.D. Qureshi filed an application in the court of learned Metropolitan Magistrate for recalling of the order summoning him and sought his discharge from the case as an accused. The learned Metropolitan Magistrate after hearing the arguments came to the conclusion that the witnesses had categorically deposed in the court that a huge mob was led by Sh.Q.D. Qureshi, who attacked his house badly with stones, damaged and looted their property including the boutique being run by his wife. Thus learned Metropolitan Magistrate dismissed the application holding that the order passed under section 319 Cr.P.C. was in consonance with law. Sh.Q.D. Qureshi filed a revision petition against the order of the learned Crl.Rev.P.No.317/2005 Metropolitan Magistrate in the court of Additional Sessions Judge, Delhi under sections 397/399 Cr.P.C and the learned Judge vide order dated 12.04.2005 allowed the revision petition and set aside the order of the learned Metropolitan Magistrate 6 Learned counsel for the petitioner submits that the impugned order dated 12.04.2005 passed by the learned Additional Sessions Judge is perverse and he has failed to apply his mind to the facts of the case and law. It is contended that the learned Additional Sessions Judge has wrongly considered the evidence and the plea of alibi of Q.D Qureshi, that he was working with MMTC and a certificate was produced from the General Manager, MMTC, to show that the respondent had attended office on the said date. It is contended that the plea of alibi can only be decided during the course of trial and only after a finding is returned in favour of respondent no.2 that he may derive any benefit of the said plea. It is the case of the petitioner that the plea of alibi could only have been appreciated at the time of trial. To buttress his argument counsel also relies upon in the case of Y.S. Saraba Reddy Vs. Puthur Rami Reddy and Another, reported at (2007) 4 SCC

773. 7 Learned counsel has further relied upon the case of Rakesh And Another Vs. State of Haryana reported at (2001) 6 SCC 248, to show that the Court does not even have to wait for an opportunity to cross-examination of the witnesses and once the statement has been made by the witness, even at this stage Section 319 of the Cr.P.C. would be available and maintainable. Counsel has laid stress on the fact that, at this stage, the Court is only concerned Crl.Rev.P.No.317/2005 with the evidence which comes before the Court on the basis of which the Court can prima facie conclude that the person arraigned before it is involved in the commission of crime. Learned counsel has also relied upon the case of Lok Ram Vs. Nihal Singh and Another reported at (2006) 10 SCC 192, in support of his argument that the Trial Court should exercise its jurisdiction under section 319, Cr.P.C. based on the evidence and on the basis of material available in the charge-sheet or the case diary. It is further submitted that the learned Additional Sessions Judge has exceeded his jurisdiction and no interference was called for as the order of the M.M. was neither capricious, nor arbitrary and learned Additional Sessions Judge had no power to appreciate the evidence in the revision. 8 Learned counsel has also raised an objection that the order dated

12.04.2005 was further not maintainable in view of the fact that the Supreme Court had over-ruled its earlier decision given in the case of K.M. Mathew Vs. State of Kerala, reported at 1992 (1) SCC 217 vide it decision in Adalat Prasad Vs. Rooplal Jindal reported at 2004 (113) DLT 356 (SC) Prasad. 9 In light of these judgments, learned counsel for the petitioner submits that the petitioner had even prior to the date of the incident made a complaint against respondent no.2 herein before the SHO, Preet Vihar, Delhi on 12.12.1996, copy of which has been filed on record. Counsel further submits that the petitioner also addressed a letter to the Commissioner of Police, which was received by the Commissioner of Police on 17.12.1996, wherein it has been categorically mentioned that at 2.00 p.m. the mob of Crl.Rev.P.No.317/2005 about 300/400 people led by respondent no.2 had attacked his house. Counsel submits that all these questions can only be decided after trial. Learned counsel for the petitioner submits that the learned Additional Sessions Judge has decided the case on merits and has exceeded his revisional jurisdiction while setting aside the impugned order. 10 Learned counsel for respondent no.2 has opposed this petition primarily on the ground that the order passed by the learned ASJ is neither perverse nor arbitrary. Learned counsel submits that in view of the fact that the plea of alibi raised by respondent no.2 is genuine and which is supported by a certificate issued by the General Manager, MMTC, no case is made out against respondent no.2. Counsel also submits that there is contradiction in the statement recorded in the Court by PW-1 and PW-2, who happens to be the wife of the petitioner. In her statement, nowhere it has been mentioned that the mob was being led by respondent no.2. In view of this, learned counsel submits that no case is made out against respondent no.2 I have heard learned counsel for the parties and gone through the record of this case. It is settled position of law that a Court exercising revisional jurisdiction cannot examine the evidence in detail and may interfere only when there is any impropriety or material irregularity in the order passed by the lower court and further that a revisional court cannot sit as a court of appeal and reappraise the evidence in detail. In the case of Jagannath Choudhary v. 11 12 Crl.Rev.P.No.317/2005 Ramayan Singh reported at (2002) 5 SCC 659, the Apex Court while reiterating the established principles with regard to revisional jurisdiction, held: justice arising from misconception of ―9. Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage law, irregularity of procedure, neglect of proper precautions of (sic or) apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. (See in this context the decision of this Court in Janata Dal v. H.S. Chowdhary1.) The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the Court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional (emphasis supplied) jurisdiction

10. While it is true and now well settled in a long catena of cases that exercise of power under Section 401 cannot but be ascribed to be discretionary — this discretion, however, as is popularly informed has to be a judicious exercise of discretion and not an arbitrary one. Judicial discretion cannot but be a discretion which stands ―informed by tradition, methodised by analogy and disciplined by system‖ — resultantly only in the event of a glaring defect in the procedural aspect or there being a manifest error on a point of law and thus a flagrant miscarriage of justice, exercise of revisional jurisdiction under this statute ought not to be called for. It is not to be lightly exercised but justice delivery system requires interference for correction of a manifest illegality or prevention of a gross miscarriage of justice. In Nosibolla2, Logendranath Jha3 and Chinnaswamy Reddy4 as also in Thakur Das v. State of M.P.5 this Court with utmost clarity and in no uncertain terms recorded the same. It is not an appellate forum wherein scrutiny of evidence is in exceptional situations where the