The Allahabad High Court has held that on exercising revisional power, the Sessions Court cannot quash the cognizance and summoning order passed by the Magistrate, its jurisdiction is very limited and the Sessions Court can only examine the illegality, irregularity and impropriety of the order passed by the Magistrate.
A single-judge bench of Justice Shamim Ahmed heard this petition filed by Prabhakar Pandey.
The revision is directed against the order dated 26.07.2001 passed by the District and Sessions Judge, Kannauj by which he has accepted the final report submitted by the Investigating Officer and set aside the order dated 25.04.2001 passed by the Judicial Magistrate, Chhibramau by which he has summoned the respondent under Section 379 IPC.
The facts of the case are that the revisionist has constructed a house in the property in dispute and also there are 32 Mango trees and one Neem tree. On 06.09.2000, the respondents along with some anti-social elements broke the lock of the house and took possession of the same and took away goods worth Rs 8000.
The revisionist tried to lodge FIR by approaching the concerned Police Station and by sending a Fax message to the Superintendent of Police, but no FIR has been lodged. Thereafter, revisionist filed an application under Section 156 (3) CrPC before the Judicial Magistrate on 02.12.2000 and on the application of the revisionist on the same day, the Judicial Magistrate, First Class has passed an order directing the Police Station of concerned Police to lodge an FIR and inform the Court.
Pursuant to the order passed by the Judicial Magistrate, an FIR was lodged by the police on 07.12.2000, under Sections 147, 504, 506, 427, 448, 379 IPC and the same was registered as case and after investigation, the Investigating Officer in a mechanical manner submitted final report in favour of the respondent without considering the evidence on record.
The revisionist has again approached the Police Authority for re-investigation and also filed a protest petition before the Judicial Magistrate and on the protest petition of the revisionist, the Magistrate order dated 25.04.2001 have issued summons to the respondent under Section 379 IPC.
Feeling aggrieved by the order dated 25.04.2001, the respondent filed a criminal revision before the District and Sessions Judge, Kannauj and the revisional court order dated 26.07.2021 set aside the summoning order dated 25.04.2001 and also accepted the final report without considering the evidence on record.
After hearing the counsel for the revisionist and AGA for the State and on perusal of the record, it was reveal that the FIR was registered by the revisionist against respondent under Sections 147, 504, 506, 427, 448, 379 IPC and after investigating final report was submitted by the Investigating Officer in a mechanical manner. Thereafter, the Magistrate after considering the protest petition and perusing the record summoned the accused under Section 379 CrPC order dated 25.04.2001, expressing his judicial power, the Court observed.
“In the case, after submission of final report under Section 173 CrPC against respondent, the Magistrate after considering the protest petition rejected the final report and arrived at conclusion that case is made out against opposite party under Sections 379 IPC and cognizance order was also passed on 25.04.2001 and summoned the accused/opposite party.
Contention of the counsel for the revisionist is perfectly correct that the Magistrate has power straightway disagreeing with the conclusion arrived at by the Investigating Officer.
Being aggrieved with the order dated 25.04.2001, respondent filed revision in the court of District and Sessions Judge, Kannau. Sessions Court considered the plea of alibi of the accused only on the basis of affidavit submitted by opposite party and quashed the order of cognizance passed by Magistrate against the opposite party under Sections 379 I.P.C order dated 26.07.2001 and accepted the final report submitted by investigating officer. Revisional Sessions Court has allowed the revision of respondent on the basis of plea of alibi filed on affidavit of witness.
But it is a settled principle of law that a plea of alibi must not be looked at the stage of investigation and inquiry. Plea of alibi of accused shall be examined only during the trial at the stage of defence. Order of the Revisional Sessions Court is totally based on plea of alibi of accused-opposite parties on the basis of affidavit submitted by witness before the Sessions Court. So, the order of the lower revisional court is not sustainable in the eyes of law. On exercising the revisional power, Sessions Court cannot quash the cognizance and summoning order passed by the Magistrate, in exercising its revisional power, jurisdiction of Sessions Court is very limited and the Sessions Court can only examine the illegality, irregularity and impropriety of the order passed by the Magistrate. If the Sessions Court finds any illegality, irregularity or jurisdictional error then the Sessions Court cannot quash the proceedings but the revisional court has only power to issue direction by pointing out the error regarding the order passed by the Magistrate. Therefore, the order of the Sessions Court, is wholly erroneous and against the set principles of law,” the Court further observed while allowing the revision.
“In view of the aforesaid discussion the Court is of the view the revision of revisionist is liable to be allowed and the order dated 26.07.2001 passed by the District and Session Judge, Kannauj is hereby quashed.
The District and Session Judge, Kannauj is directed to pass a fresh order in accordance with law in view of the observation of the Court after hearing the aggrieved parties,” the order reads.