# Dev Narain Dev v. State of U.P. and others

- **Citation:** (2000) 3 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dev-narain-dev-v-state-of-u-p-and-others-39467
- **Pages:** 6

## Text

3All] Dev Narain Dev V. State of U.P. and others 215

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By the Court

1. In this petition under section 482
Cr.P.C., the petitioner has assailed the
order of the learned Sessions Judge,
Bulandshahr passed in Criminal Revision
No. 81 of 1996 whereby he set aside the
order of the learned Chief Judicial
Magistrate taking cognizance of the
offence under section 397 I.P.C. in
complaint case no.551 of 1996.

2. The complainant, petitioner
herein, filed the aforesaid complaint
alleging that on 30.5.1996 at about 2 P.M.
the opposite parties (hereinafter referred
to as 'the accused persons) being armed
with this came to his house, dismantled
the roof and removed the rafters and other
materials. He lodged a report to the
police, but as no case was registered on
such report, he complained to the
Superintendent of Police. Even thereafter
when no action was taken, he approached
the
court
by
filing
the
aforesaid
complaint.
Learned
Magistrate
after
having recorded the statement of the
complainant
conducted
inquiry
as
onvisaged in section 202 Cr.P.C. in
course of which he recorded the evidence
of
witnesses
as
produced
by
the
complainant. Thereupon, on scrutiny of
the evidence he was satisfied that there is
a prima facie case under section 397
I.P.C. and accordingly took cognizance of
the said offence and issued process
against the accused persons for their
appearance.
Aggrieved
thereby,
the
accused persons preferred revision and
the learned Sessions Judge by the
impugned order set aside the order of the
learned Magistrate and dismissed the
complaint. The legality and propriety of
the said order of the revision court is
under challenge in the present proceeding.

3. Learned counsel appearing for the
complainant strenuously urged that the
revision court exceeded its jurisdiction
permitting the accused persons to lead
some
documentary
evidence
in
consideration whereof it came to hold that
since there was serious dispute with
regard to title and possession of the house
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

216
in question between the parties, the
criminal case was not maintainable and
this
finding
being
contrary
to
the
materials on record, the impugned order
requires interference of this court in
exercise of inherent power conferred by
section 482 Cr.P.C. He further urged that
the order of the learned Magistrate taking
cognizance
of
the
offence
being
interlocutory one, revision could not have
been entertained by the learned Sessions
Judge, in view of the bar created by
section 397 (2) Cr.P.C.

4. On the other hand, learned
counsel appearing for the accused persons
would urge that it is the settled position of
law that when criminal law is put to
motion, it is the bounden duty of the court
to scrutinize carefully the allegations
made in the complaint as also the
statement of the witnesses examined if
any, with a view to prevent a person
arrayed as the accused from being called
upon to face a false and frivol us charge.
If that is not done, criminal justice system
would be used as an arm to harass an
innocent person in order to wreck
personal vengeance. In the present case
since
the
accused
persons
had
no
opportunity to place all materials before
the learned Magistrate to show that
possession of the house in question which
was allegedly damaged on the date of
occurrence was not with the complainant
they produced the relevant documents
before the Sessions Judge who on
consideration thereof was satisfied that
offence under section 397 I.P.C. was not
made out and having held us, passed the
order dismissing the complaint. In the
circumstances, therefore, the impugned
order cannot be held to be bad in law
requiring interference of this court.

5. In view of the aforesaid
submissions, at the outset I would like to
deal with the question as to whether the
order of the learned Magistrate taking
cognizance of the offence is interlocutory
one against which no revision lies. Under
the code of Criminal Procedure, 1898
there was no bar for preferring revision
against interlocutory orders. In absence of
any
provision
revision
was
being
entertained against interlocutory interim
order and in certain cases order was
passed staying the criminal proceeding.
Experience showed that revision remained
undecided for long years and the stay
order continued to operate. In the long run
it was noticed that the order staying the
proceeding
prejudicially
effected
the
prosecution inasmuch as, when the trial
commenced either the material witnesses
were not available for their examination
or they were found to be dead, as a result
the accused involved in heinous crime
was being acquitted. It was in this
background that the Legislature brought
out an amendment in the code of Criminal
Procedure, 1973 (2) that no revision
would lie against an interlocutory order.
However, while providing such a bar the
Legislature did not define the meaning of
the
expression
'interlocutory
order'
leaving the same to be interpreted by the
court in the facts and circumstances of
each case.

6.

According
to
Black
Law
Dictionary
the
word
'interlocutory'
means, 'provisional, temporary, not final,
something
intervening
between
the
commencement and the end of a suit
which decided some point or matter but is
not a final decision of the whole
controversy.'
3All] Dev Narain Dev V. State of U.P. and others 217

7. The meaning of the word
'interlocutory' according to Webster's
Dictionary is 'pronounced and arising
during legal procedure not final.'

8. In the Halsbury's Laws of
England, the expression 'interlocutory
order'
has
been
interpreted
in the
following terms :

"a judgment and order may be final for
one
purpose
and
interlocutory
for
another, or final as to part and
interlocutory as to part. The meaning of
the
two
words
must
therefore
be
considered separately in relation to the
particular purpose for which it is
required.'

9. The meaning of the expression
'interlocutory
order'
came
to
be
interpreted by the Apex Court in the case
of Amar Nath and others vs. State of
Haryana and others AIR 1977 SC 2185.
The order of issuance of summons to the
appellants in the said case was subject
matter of challenge in a revision before
the High Court under section 397 read
with section 482 Cr.P.C. In the police
report, the appellants were not arrayed as
accused since no clear evidence of their
participation in the incident was made
out. The said report was accepted by the
Magistrate.
Aggrieved
thereby,
the
complainant moved in a revision to the
Sessions Judge, Karnal who accepted the
revision and remanded the case to the
Magistrate for further enquiry. On receipt
of
the
remand
order,
the
learned
Magistrate straight-away issued summons
to the appellants and it was against that
order of the learned Magistrate the
appellants moved the High Court in
revision.
The
court
held
that
the
impugned order of issuance of summons
was
an
'interlocutory
order'
and,
therefore,
the
revision
was
not
maintainable in view of the bar created by
section 397 (2) Cr.P.C. The order of the
High Court came to be challenged in the
Supreme Court. In order to find whether
the order of the learned Magistrate is an
'interlocutory order' or a final order, their
Lordships made reference to the statement
of 'Objects and Reasons' in enacting subsection (2) of Section 397 Cr.P.C. as also
various judicial pronouncements and held
thus:

"Any order which substantially effects the
rights of the accused or decides certain
rights of the parties cannot be said to be
an interlocutory order so as to bar a
revision to the High Court against that
order, because that would be against the
very object which forms the basis for
insertion of this particular provision under
section 397 of the 1973 Code. Thus, for
instance orders summoning witnesses,
adoring cases, passing orders for bail,
calling for reports and such other steps in
aid of the pending proceedings, may no
doubt amount to interlocutory order
against which no revision would lie under
section 397 (2) of the 1973 Code. The
orders which are matters of movement
and which effects or adjudicates the rights
of the accused or a particular aspects of
the trial cannot be said to be interlocutory
order so as to be outside the purview of
the revision jurisdiction of the High
Court."

10. The view taken in Amar Nath
(supra) has been reaffirmed by a three
Judge Bench decision in the case of
Madhu
Limaye
vs.
The
state
of
Maharasthra 1977 SCC 551. And also in a
latest decision in the case of Rajendra
Kumar Sita Ram Pandey v. Uttam and
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

218
another 1999 (38) ACC 438. On a reading
of the authoritative pronouncements of
the Supreme Court and keeping in mind
the legislative intentior behind section
397 (2) Cr.P.C. in putting an embargo
upon the exercise of the revision power of
the Court, I would hold that an order of
taking cognizance of the offence which is
no doubt a matter of moment, is a final
order since it effects the rights of the
accused, inasmuch as, on account of
initiation of the criminal proceeding, the
accused apprehends that the sword of
Damocles hanging over his head may fail
at any moment and his personal liberty
may be curtailed and therefore, in order to
further the ends of justice the higher court
if approached would be well within its
jurisdiction to bring the whole proceeding
to a halt by quashing the said order in
exercise of revision power.

11. Next question that crops up for
consideration is whether the learned
Sessions Judge was justified in setting
aside the order of the learned Magistrate
by
taking
into
consideration
the
documents produced before him by the
accused persons. Section 190(1) (a) of the
Cr.P.C. empowers a Magistrate to take
cognizance of any offence upon receiving
a complaint of facts which constitute such
offence. While taking cognizance it is
obligatory for him to resort to section 200
and examine the complainant and his
witnesses
present
if
any.
After
considering
the
statements
of
the
complainant and the witnesses if he is
satisfied that there is sufficient ground for
proceeding in the case, then he shall issue
process for attendance of the accused. On
the other hand, if he is of the opinion that
no ground is made out for proceeding, he
shall
dismiss
the
complaint
after
recording brief reasons thereof. A reading
of sections 203 and 204 Cr.P.C. would
indicate that when the Magistrate issues
the process under section 204 Cr.P.C.
after taking cognizance of the offence he
is not required to give detailed reasons of
his satisfaction about the offence having
been made out from the materials on
record.
His
required
satisfaction
is
implicit in the issue of process itself. But
when he decides to dismiss the complaint
under section 203 Cr.P.C., it is the
statutory requirement that he shall briefly
record the reasons thereof. In the present
case, a reading of the order at Annexure-5
would show that the learned Magistrate
by applying his judicial mind to the
statements of the complainant and the
witnesses was prima facie satisfied that a
case under section 397 I.P.C. was made
out and accordingly took cognizance of
the said offence and issued process
against the accused persons. It is well
settled by a long catena of decisions of the
Supreme Court that at the stage of
issuance of process, the Magistrate is
mainly concerned with the allegations
made in the complaint and the evidence
led in support thereof for his prima facie
satisfaction, as to whether there are
sufficient grounds for proceeding against
the accused. It is not the province of the
Magistrate to enter into a detailed
discussion of the merits or demerits of the
case nor can the High Court go into this
matter in its revision jurisdiction, which is
a very limited one.

12. In that view of the matter, no
fault can be found with the learned
Magistrate taking cognizance of the
offence under section 379 I.P.C. and
issuing process against the accused
persons.
3All] Dev Narain Dev V. State of U.P. and others 219

13. It need not be emphasized that
the scope of power of revision of the
Sessions Judge, as provided in sections
397 and 399 of the Cr.P.C. is limited.
Section 397 postulates that the Sessions
Judge can interfere with the order of the
inferior court when he finds that there has
been illegality, irregularity or impropriety
in the order. Therefore an order of the
Magistrate taking cognizance of the
offence being a final order can be
challenged in revision by the aggrieved
party, but then interference by the
revisional Court is permissible if any of
the tests as laid down by the Supreme
Court in the case of Smt. Nagawwa vs.
Veeranna Shivalingappa Konjalagi AIR
1976 S.C. 1947 are satisfied.

(1) Where the allegations made in the
complaint
or
the
statement
of
the
witnesses recorded in support of the same
taken at their face value make out
absolutely no case against the accused or
the complaint does disclose the essential
ingredients of an offence which is alleged
against the accused.

(2) Where the allegations made in the
complaint
are
patently
absurd
and
inherently improbable so that no prudent
person can ever reach a conclusion that
there is sufficient ground for proceeding
against the accused.

(3) Where the discretion exercised by
the Magistrate in issuing process is
capricious and arbitrary having been
based either on no evidence or on
materials which are wholly irrelevant or
inadmissible and

(4) Where the complaint suffers from
fundamental legal defects, such as, want
of sanction, or absence of a complaint by
legally competent authority and the like".

14. Applying the aforesaid tests to
the present case I would hold that none of
those
circumstances
existed
for
the
learned Sessions Judge to upturn the order
of the learned Magistrate and put an end
to the criminal proceeding. To my mind,
he
over-stepped
his
jurisdiction
by
allowing the accused persons to bring on
record certain documents in support of
their defence plea and relying upon those
documents in support of their defence
plea and relying upon those documents he
appreciated the evidence as if he was
exercising power of the appellate court. It
may be stated, when an order of
cognizance is challenged in revision, it is
impermissible for the Sessions Judge in
each and every case to look into the
documents produced by the accused in
support of his defence plea and quash the
order
being
influenced
by
those
documents notwithstanding the statements
of the complaint and his witnesses who
supported the case as narrated in the
complaint.
In
certain
circumstances,
however, the Revision Court would be
justified to have a glimpse over the
documents produced by the accused for
arriving at a finding that the criminal
proceeding has been initiated on a
distorted version to wreck vengeance.

15.

Resultantly,
the
criminal
miscellaneous application is allowed. The
impugned order of the learned Sessions
Judge is set aside and that of the learned
Magistrate taking cognizance of the
offence is restored.
Application Allowed.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

220
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By the Court

1. This revision has been filed under
Article
227
of
the
Constitution
challenging the order dated 15.7.2000
passed in Misc. Appeal by the lower
appellate court. The stamp reporter has
reported that court fee paid in the revision
is Rs. 100/-. He has mentioned in his
report that the revision is not maintainable
in view of full bench decision in AIR
1979 All.218.

2. Prima facie the report appears to
be correct. But the learned counsel for the
revisionist Sri J.J. Munir has challenged
the report and has relied on four single
judge decisions of this court and has
urged that the revision is maintainable
under Article 227 of the Constitution. The
learned counsel urged that he did not file
the revision under section 115 of the civil
procedure code, therefore, the full bench
decision referred in the report was not
attracted.

3. A full bench of this court in M/s
Jupiter Chit Fund (Pvt.) Ltd. v. Dwarika
Diesh Dayal AIR 1979 All.(FB) 218 after
considering the state amendment has held
that a decision in appeal or revision by the
civil court arising out of suits or other
proceedings is not amenable to revisional
jurisdiction of high court under section
115 C.P.C. In another full bench decision
of this court in Ganga Saran vs. Civil
Judge Hapur Ghaziabad and others AIR
1991 All.(FB) 114 it has been held that a
writ under Article 226 against such order
is not maintainable and no mandamus can
be issued to a private individual. Both
these full bench decisions were examined
by the learned single judge in Matthan
Singh vs. IInd Additional District Judge,
Meerut 1996 (1) ARC 117 and it was held