The Allahabad High Court has said that there is specific provision with respect to limitation for filing of revision against decree or order or sentence and, thus, the same cannot be overlooked while entertaining any revision or passing any order thereon.
So far as revision is concerned, prior to deciding the issue of delay and laches, the issuance of notice may not be a compulsory requirement.
A Single Bench of Justice Shree Prakash Singh passed this order, while hearing an application under Section 482 filed by Roshan Lal.
The application has been filed by the applicant, assailing the order dated June 30, 2016 passed by the Additional District and Sessions Judge, District Balrampur.
He further challenged the entire proceeding of complaint case pending before the Judicial Magistrate-I, District Balrampur.
The facts of the case are that the respondent no 2 had filed an application under Section 156 (3) of CrPC before the Judicial Magistrate-I, District Balrampur.
The respondent no 2 levelled allegation therein that the applicant executed registered agreement to sale on September 27, 2013 with respect to Gata no 465 having area 0.202 hectare and Gata no 628 having an area 0.142 hectare situated at Village Mathura, Police Station Lalia, District Balrampur.
The respondent no 2 has further made allegation that the sale consideration was fixed as Rs 2,40,000/- out of which Rs 2,00,000/- was allegedly given in cash at the time of execution of the said agreement and the remaining amount was allegedly agreed to be paid at the time of execution of the sale deed. The allegation is that after the aforesaid agreement, the said plot was sold out to one Shaheena and Kamruddin.
Further allegation is that when the complainant/revisionist went to the house of the applicant on 10th of April 2014, the applicant, who was sitting with the other accused persons, started abusing and beating her.
The order dated 22nd of May 2014, the Magistrate treated the aforesaid application as a complaint case and listed it for recording the statement of respondent no 2 under Section 200 of the CrPC.
The opposite party no 2 got her statement recorded under Section 200 of the CrPC. Further the statements of other two witnesses were recorded under Section 202 of the CrPC by the Magistrate.
After recording the statement of the complainant as well as the witnesses, the Judicial Magistrate-I, vide his order dated 25th of July 2014, issued process under Section 204 of the CrPC and summoned the applicant under Sections 323, 504, 506 of the Indian Penal Code.
A categorical finding was also recorded by the Magistrate that as per the version of the complaint and the statements made under Sections 200 and 202 CrPC, the case is made out only under Sections 323, 504 and 506 IPC and so far as the allegation with regard to breach of the agreement and execution of the sale deed is concerned, the same was a civil dispute and no criminal offence is made out in that regard.
Being aggrieved by the summoning order dated 25th of July 2014, the opposite party no 2 filed a criminal revision before the Additional District and Sessions Judge, District Balrampur.
Counsel for the applicant submitted that the revisional court has passed the order on 30th of June 2016, in most mechanical manner and, while passing the aforesaid order, no finding was recorded with regard to incorrectness or unlawfulness of the order passed by the Magistrate. He also added that the application submitted by the respondent no 2 under Section 156 (3) CrPC which was registered as a complaint case, is an abuse of process of law. He further added that no offence is made out against the applicant.
Adding his arguments, he submitted that in fact the applicant had already instituted a suit being Civil Original Suit for cancellation of the agreement to sale dated 27.9.2013 before the Civil Judge (Junior Division), Balrampur. The opposite party no 2 had also filed a suit being Civil Original Suit, for cancellation of sale deed executed on 9th of April 2014 in favour of the other accused, namely, Ms Saheena, before the Civil Judge (Junior Division), Balrampur. Both the suits are still pending consideration.
Referring to the aforesaid arguments, he submitted that in fact the dispute between the parties is purely of civil nature and prima facie, no offence is made out against the applicant.
He further submitted that the Apex Court and the High Courts have held that if the dispute is of civil nature then criminal proceeding is nothing but an abuse of process of law.
He also submitted that since the land in question belongs to the applicant and he had duly executed the sale deed, as such, no question arises with regard to committing cheating or fraud by the applicant and, as such, the finding recorded by the revisional court is perverse and assails illegality.
On the other hand, Counsel for the State has very vehemently opposed the contention aforesaid and submitted that in fact the applicant cannot be said to be prospective accused as the order dated 25th July 2014 passed by the Magistrate has been set aside by the Additional Sessions Judge in Revision order dated 30th June 2016.
He further submitted that since no process is in existence against the applicant, as such, he is not a prospective accused and, in such view of the matter, the applicant has no locus to assail, the order passed by the revisional court.
Prabhat Kumar, counsel for the opposite party no 2, has controverted the contention of the counsel for the applicant and submitted that it is wrong to say that the opposite party no 2 while filing the revision did not file the application for condonation of delay under Section 5 of the Limitation Act 1963.
The Court considered the rival submissions made by the counsel for the parties and have also gone through the records available before the Court. The issue, which emerges for consideration before the Court, is that while exercising power under Chapter XXX of CrPC, can the revisional Court proceed without condoning the delay of such revision and further without reducing the reasons in writing?
The Court said from the bare perusal of the aforequoted provision, it was evident that for filing revision, there was a 90-day limitation period from the date of decree or the order or sentence, which was sought to be revised.
This Court was of the considered view that there was no deeming provision for condonation of delay and delay could be condoned only when it is pleaded and prayed by the person concerned or the court taking cognizance of the relevant provision of Limitation Act 1963, decides the issue.
So far as the contention of the counsel for the opposite party no 2 with respect to the fact that since the revisional court can exercise the revisional power suo motu and, therefore, in such conditions, the application for condonation of delay or condoning the delay is not mandatory provision.
When the Court examined this contention, it became evident that suo motu cognisance does not mean that the court is at liberty to ignore the statutory provision and settled proposition of law. It is well settled law that if a statute provides a specific mode or action of law, the same has to be followed in the manner prescribed.
The Court is also not unmindful that the criminal law is strict law and, there are far-reaching and serious consequences of the same. This Court finds that there is specific provision with respect to limitation for filing of revision against decree or order or sentence and, thus, the same cannot be overlooked while entertaining any revision or passing any order thereon. So far as revision is concerned, prior to deciding the issue of delay and laches, the issuance of notice may not be a compulsory requirement.
With respect to the application for condonation of delay in filing the revision, counsel for both the parties have submitted that it is an admitted fact that there was delay of nine months but there is no single whisper in all over the finding or order passed by the revisional court, which is impugned with the application, the Court further said.
“Further examining the revisional order dated 30.6.2016, it is evident that the revisional court while remitting back the matter, has erroneously directed the applicant to appear before the court of Magistrate though the order passed by the Magistrate on July 25, 2014 was set aside. After setting aside the July 25 order, the applicant is neither accused nor prospective accused and, as such, he could not have directed to appear before the Magistrate unless any process is issued and, thus, this Court is of considered opinion that the order dated June 30, 2016 passed by the revisional court is erroneous, unlawful and against the settled proposition of law,” the Court observed while allowing the application.
“In view of the aforesaid submissions and discussions, the order dated June 30, 2016 passed by the Additional District and Sessions Judge is hereby set aside,” the Court ordered.