NARENDRA SHARMA Vs. ASHOK SINGH BHADORIYA

JUDGEMENT

(1.) VIDE order dated 6.8.2009 passed by Hon'ble the Chief Justice suo motu revision has been taken by this Court against the order dated 25.6.2009 passed by the First Additional Sessions Judge/Special Judge under Prevention of Corruption Act, Gwalior (hereinafter referred to as ("Special Judge") in unregistered complaint of 2008 (Narendra Sharma Vs. Ashok Singh Bhadoriya and others).

(2.) THE brief facts of the case are that the complainant Narendra Sharma had sent various complaints to the various Ministers and Officers of the Home Department and ultimately he filed a complaint on 14.7.2008 before the Special Judge, Gwalior against the respondents No.1 and 2. Vide order dated 9.9.2008 the Special Judge Gwalior had directed the Police SPE to proceed under Section 156(3) of the Cr.P.C. The respondent No.1 Ashok Singh Bhadoriya on 15.9.2008 requested to review the order passed by the trial Court, but the application was dismissed. Ultimately that order was challenged before the High Court, but M.Cr.C.No.6593/2008 was rejected. Ultimately the petition under Section 482 of Cr.P.C. (M.Cr.C. No.8170/2008) was filed by the respondents before the High Court. In that petition on 4.2.2009 Shri Mayank Bajpai, Advocate has submitted his power on behalf of the complainant Narendra Sharma that the complainant was interested to withdraw the complaint, therefore the Single Bench of this Court at Gwalior vide order dated 28.4.2009 set aside the order dated 9.9.2008 passed by the trial Court and directed to reconsider the matter. On 8.5.2009 the complainant Narendra Sharma appeared before the trial Court and filed an application to withdraw the complaint. Shri Aditya Vallabh Tripathi, Advocate who was engaged by the complainant has opposed for withdrawal of the complaint, and therefore on 17.6.2009 the complainant filed an application that Shri Aditya Vallabh Tripathi, Advocate does not continue to be his counsel and he wants to prosecute his own case without any advocate. Thereafter the learned Special Judge passed the impugned order. After taking suo motu cognizance of the

(3.) THE Single Bench of this Court vide order dated 28.4.2009 set aside the order passed by the trial Court on 9.9.2008 by which a direction was given under Section 156(3) of Cr.P.C. and therefore it was for the trial Court to consider the entire matter again. The Single Bench of this Court at Gwalior has relied upon the various judgments passed by Hon'ble the Apex Court in the case of "Maksud Saiyed Vs. State of Gujarat" [(2008) 5 SCC 668] and in the case of "Pepsi Foods Ltd. Vs. Special Judicial Magistrate" [(1998) 5 SCC 749] in which it was led that before accepting the application under Section 156(3) of Cr.P.C. it is the duty of the Magistrate to see as to whether any prima facie case is made out or not. In the impugned order dated 25.6.2009 the learned Special Judge found that the complainant alleged about the demand of bribe by the respondents and it was alleged that the bribe was given to the respondents. However, there was no demand on record to prove that fact prima facie. The complainant did not lodge any FIR at any police station about that crime, but he sent some complaints to the Officers of the Home Department and ultimately reports were received to the Special Court that the complaint sent by the complainant was fake and it had no basis. Under such circumstances, if the trial Court has refused to accept the application under Section 156(3) of Cr.P.C. then no illegality or perversity has been done by the trial Court, because prima facie there was no evidence against the respondents to proceed under Section 156(3) of Cr.P.C.