ANAND KUMAR Vs. CHANDRA KUMAR PARAKH

JUDGEMENT

(1.) This Miscellaneous Criminal Case has been filed under Section 482 of Cr.P.C. for re-appraisal of the order dated 22.08.2016 passed by this court in criminal revision No. 2037/2015, whereby this court has affirmed the order passed by VIII Additional Sessions Judge, Bhopal in criminal revision No. 371/2014 in which 8th Additional Sessions Judge allowed the revision presented by the respondents accused and set-aside the order dated 02.07.2014 passed by the Judicial Magistrate First Class, Bhopal in which Judicial Magistrate First Class, Bhopal took cognizance against the respondents-accused no. 1 and 2 under Section 181 , 193 , 195 , 211 & 120-B of IPC.

(2.) Facts of the case are that respondent no. 2 Subhash Chandra Lalwani filed a private complaint under Sections 466, 467, 468, 420 read with 120-B of IPC against the present petitioner Anand Kumar and others in the court of Judicial Magistrate First Class, Bhopal which was registered as R.T. No. 4798/2012. Present petitioner preferred a revision under Section 397 of Code of Criminal Procedure in the court of 5th Additional Sessions Judge, Bhopal. Revision was dismissed by order dated 15.01.2013, thereafter petitioner filed M.Cr.C. No. 4998/2013 under Section 482 of Cr.P. C. before this court which was allowed and consequently the complaint was quashed in M.Cr.C. No. 4998/2013, thereafter, this order was confirmed by the Apex Court by order dated 21.02.2014. This Court also gave the finding that respondent no. 2 had concocted the civil case in the garb of a criminal complaint only to pressurize petitioner and respondent no. 1 did not tell the truth, thereafter petitioner filed an application under Section 340 of Code of Criminal Procedure against respondents no. 1 and 2 for perjury in the same court of Judicial Magistrate Firxt Class, Bhopal. Statement of petitioner and witnesses were recorded. Learned Judicial Magistrate after scrutinizing the documents and statement of witnesses, found substantial prima facie case to take cognizance against the respondents no. 1 and 2, thereafter criminal complaint was registered as R.T. No. 6304/2014 against respondent no. 1 and 2 under Sections 181 , 193 , 195 , 211 & 120-B of I.P.C. Respondents no. 1 and 2 filed revision against this order under Section 397 of Cr.P.C. 1973, which was registered as criminal revision No. 371/2014 in the Court of 8th Additional Sessions Judge Bhopal which was allowed and the order passed by Judicial Magistrate First Class dated 02.07.2014 was set-aside. Thereafter, petitioner filed revision under Section 397 of Cr.P.C. before this Court. This revision was registered as Criminal Revision No. 2037/2015 which was dismissed vide order dated 22.08.2016.

(3.) Learned counsel for the petitioner submits that petitioner filed an application in the court of learned Judicial Magistrate First Class under Section 340 of Cr.P.C. 1973. Learned Judicial Magistrate First Class recorded statement of petitioner and witness Smt. Mohna Lalwani, Ashok Kumar Parakh under Section 200 and 202 of Cr.P.C. Learned Judicial Magistrate First Class by order dated 02.07.2014 registered case under Sections 181 , 193 , 195 , 211 & 120-B of I.P.C. against respondents no. 1 and 2. He further submits that even if it presumed that the procedure adopted by learned Judicial Magistrate First Class was erroneous, still the proceeding could not be vitiated but only rectified as per Section 460(e) and 465 of the Cr.P.C. Learned court has not given any finding that proceedings before learned Judicial Magistrate First Class has resulted in a failure of justice. Learned court has erred in their judgment by quashing the case on mere technical grounds rather than remanding back the case to the learned lower court with instruction to proceed with the procedure laid down in the Code of Criminal Procedure 1973. Learned counsel for petitioner further submits that even if it is to be assumed that Judicial Magistrate First Class committed an inadvertent irregularity in taking cognizance upon the complaint filed by the petitioner instead of holding a preliminary inquiry in terms of Section 340 of Cr.P.C. still the same was not an illegality but a mere irregularity which is curable under Section 460 of Cr.P.C. In fact the order passed is per se unsustainable, as this court appears to have glossed over the fact that an exception has been carved out by virtue of Section 460 of Cr.P.C. even in respect of an erroneous order passed under Section 190(1) (a) (b). A bare perusal of clause (e) of Section 460 of Cr.P.C. would demonstrate that it is mandated under law that no proceeding would be set-aside merely on the ground of a Magistrate not being empowered to take cognizance of an offence. That being the undisputed proposition of law. The impugned orders dated 22.08.2016 and 15.07.2015 assailed under this application have become otiose and a complete nullity in law and consequently are liable to the set-aside. Under these exceptional circumstances this court should exercise its inherent powers bestowed under Section 482 of Cr.P.C. to prevent abuse of judicial procedures and secure the ends of justice and set- aside the orders dated 22.08.2016 and 15.07.2015, so that the trial court may proceed with the case on merits rather than setting aside the order due to a procedural irregularity which was not committed by the petitioner. Actually respondents-accused no. 2 has mislead the court by giving a false and ambiguous statement with a criminal intent to show that his living mother Smt. Mohna Lalwani as dead. Smt. Mohna Lalwani was alive. Respondent no.1 has also given false finding before the trial Judge so impugned order dated 15.07.2015 passed by the 8th Additional Sessions Judge, Bhopal be set-aside and also this Court should do re-appraisal of the order dated 22.08.2016 passed in Criminal Revision 2037/2015.