Deepak Jain v. State of U.P. and others) and modify the order dated

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the impugned order dated 04.09.2024 passed by the learned Additional Sessions Joudge, Court No. 2, Firozabad, in Criminal Revision No. 28 of 2021, (Deepak Jain Vs. State of U.P. and others) and modify the order dated 26.02.2021 passed by the learned Civil Judge (Jr. Div.)/ Judicial Magistrate, Firozabad, in Complaint Case No. 1277/2019 (Deepak Jain Vs. Devendra Pratap and others), under Section 323, 504, 506 I.P.C., Police Station- Toondla, District- Firozabad, by summoning the accused-persons also under Section 406 I.P.C. It is further prayed that this Hon'ble court may graciously be pleased to direct the learned Civil Judge (Jr. Div.)/Judicial Magistrate, Firozabad to summon the accused-opposite party nos. 2, 3 and 4 also under Section 406 of Indian Penal Code along with Sections 323, 504, 506 I.P.C., Police Station- Toondla, District- Firozabad, as there is dispute of money transaction also involved and try the case in accordance with the law."

3. It is submitted by learned counsel for the applicant that applicant has filed an application under Section 156(3) CrPC, alleging that he has lended an amount of Rs.1,05,000/- to Devendra Pratap but the same was not returned back and that on

02.03.2019 the opposite party nos.2 to 4 have abused and assaulted him. The said application under Section 156(3) CrPC was registered as a complaint case and said Devendra Pratap was summoned for offences under Sections 323, 504, 506 IPC. Learned counsel submitted that there is documentary evidence of concerned bank to show that applicant has transferred the said amount to the daughter of Devendra Pratap but despite that he was not summoned under Section 406 IPC. Further, the opposite party nos.2 to 4 have not been summoned, whereas a prima facie case is made out against them. The applicant has preferred a criminal revision against order dated 26.02.2021 but the revision was also dismissed. It was submitted that both the impugned orders against facts and law and thus, liable to be set aside.

4. Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned proceedings.

5. I have considered the rival submissions and perused the record.

6. Perusal of record shows that applicant has filed complaint against Devendra Pratap and opposite party nos.2 to 4 and in that complaint Devendra Pratap was summoned for offences under Sections 323, 504, 506 IPC vide order dated 26.02.2021. The applicant (complainant) has preferred a criminal revision against aforesaid order dated 26.02.2021, which has been dismissed by the Session Court vide impugned order dated 04.09.2024. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.

7. In Deepti aliasArati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, the Apex Court held that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, the Court held: "3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."

8. Similarly, in the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon'ble Supreme Court held that- " .... Section 397(3) bars a second revision application by the same party. It is now well- settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. On this short ground itself, the impugned order of the High Court can be set aside."

9. In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Court held as follows:- "In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.''

10. Thus, it is clear that availing of remedy of revision before Sessions Judge under section 399 Cr.P.C. does not bar a person from invoking power of High Court under Section 482 Cr.P.C. but High Court can not act as a second Revisional Court under garb of exercising inherent powers.

11. It is well settled that at the stage of summoning the Magistrate has to carefully scrutinise the evidence brought on record in order to consider whether a prima facie case is made out or not. The Magistrate is not bound to summon the proposed accused persons under all the sections mentioned in the complaint, rather it is to be considered as to what specific offences are made out. Keeping in view the aforesaid legal position, in the instant case, it is apparent that the main allegation was made against Devendra Pratap, who was summoned for offences under Sections 323, 504, 506 IPC. Merely because the amount lended by the applicant to said Devendra Pratap was not returned, it cannot be said that a prima facie case under Section 406 of IPC is made out. Similarly, there are no specific allegations against the opposite party nos.2 to 4. Learned Magistrate has considered facts of the matter and passed order dated 26.02.2021. Similarly the revisional court has considered the entire facts and law and dismissed the revision. No patent illegality or perversity could be shown in the impugned orders. As criminal revision against the summoning order dated

26.02.2021 has already been dismissed by the revisional court, in such situation the interference under Section 482 CrPC can only be made when there is grave miscarriage of justice or abuse of the process of the court or the required statutory procedure has not been complied with or there is failure of justice. Applying the principles set out in the judgments referred above to the case on hand, no case for invoking powers under Section 482 CrPC is made out. Therefore, this application under section 482 Cr.P.C. deserves to be dismissed.

12. The application u/s 482 Cr.P.C. is hereby dismissed. Order Date :- 29.4.2025/ Rama Kant

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the impugned order dated 04.09.2024 passed by the learned Additional Sessions Joudge, Court No. 2, Firozabad, in Criminal Revision No. 28 of 2021, (Deepak Jain Vs. State of U.P. and others) and modify the order dated 26.02.2021 passed by the learned Civil Judge (Jr. Div.)/ Judicial Magistrate, Firozabad, in Complaint Case No. 1277/2019 (Deepak Jain Vs. Devendra Pratap and others), under Section 323, 504, 506 I.P.C., Police Station- Toondla, District- Firozabad, by summoning the accused-persons also under Section 406 I.P.C. It is further prayed that this Hon'ble court may graciously be pleased to direct the learned Civil Judge (Jr. Div.)/Judicial Magistrate, Firozabad to summon the accused-opposite party nos. 2, 3 and 4 also under Section 406 of Indian Penal Code along with Sections 323, 504, 506 I.P.C., Police Station- Toondla, District- Firozabad, as there is dispute of money transaction also involved and try the case in accordance with the law."

3. It is submitted by learned counsel for the applicant that applicant has filed an application under Section 156(3) CrPC, alleging that he has lended an amount of Rs.1,05,000/- to Devendra Pratap but the same was not returned back and that on

02.03.2019 the opposite party nos.2 to 4 have abused and assaulted him. The said application under Section 156(3) CrPC was registered as a complaint case and said Devendra Pratap was summoned for offences under Sections 323, 504, 506 IPC. Learned counsel submitted that there is documentary evidence of concerned bank to show that applicant has transferred the said amount to the daughter of Devendra Pratap but despite that he was not summoned under Section 406 IPC. Further, the opposite party nos.2 to 4 have not been summoned, whereas a prima facie case is made out against them. The applicant has preferred a criminal revision against order dated 26.02.2021 but the revision was also dismissed. It was submitted that both the impugned orders against facts and law and thus, liable to be set aside.

4. Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned proceedings.

5. I have considered the rival submissions and perused the record.

6. Perusal of record shows that applicant has filed complaint against Devendra Pratap and opposite party nos.2 to 4 and in that complaint Devendra Pratap was summoned for offences under Sections 323, 504, 506 IPC vide order dated 26.02.2021. The applicant (complainant) has preferred a criminal revision against aforesaid order dated 26.02.2021, which has been dismissed by the Session Court vide impugned order dated 04.09.2024. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.

7. In Deepti aliasArati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, the Apex Court held that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, the Court held: "3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."

8. Similarly, in the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon'ble Supreme Court held that- " .... Section 397(3) bars a second revision application by the same party. It is now well- settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. On this short ground itself, the impugned order of the High Court can be set aside."

9. In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Court held as follows:- "In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.''

10. Thus, it is clear that availing of remedy of revision before Sessions Judge under section 399 Cr.P.C. does not bar a person from invoking power of High Court under Section 482 Cr.P.C. but High Court can not act as a second Revisional Court under garb of exercising inherent powers.

11. It is well settled that at the stage of summoning the Magistrate has to carefully scrutinise the evidence brought on record in order to consider whether a prima facie case is made out or not. The Magistrate is not bound to summon the proposed accused persons under all the sections mentioned in the complaint, rather it is to be considered as to what specific offences are made out. Keeping in view the aforesaid legal position, in the instant case, it is apparent that the main allegation was made against Devendra Pratap, who was summoned for offences under Sections 323, 504, 506 IPC. Merely because the amount lended by the applicant to said Devendra Pratap was not returned, it cannot be said that a prima facie case under Section 406 of IPC is made out. Similarly, there are no specific allegations against the opposite party nos.2 to 4. Learned Magistrate has considered facts of the matter and passed order dated 26.02.2021. Similarly the revisional court has considered the entire facts and law and dismissed the revision. No patent illegality or perversity could be shown in the impugned orders. As criminal revision against the summoning order dated

26.02.2021 has already been dismissed by the revisional court, in such situation the interference under Section 482 CrPC can only be made when there is grave miscarriage of justice or abuse of the process of the court or the required statutory procedure has not been complied with or there is failure of justice. Applying the principles set out in the judgments referred above to the case on hand, no case for invoking powers under Section 482 CrPC is made out. Therefore, this application under section 482 Cr.P.C. deserves to be dismissed.

12. The application u/s 482 Cr.P.C. is hereby dismissed. Order Date :- 29.4.2025/ Rama Kant