This clearly shows that the impugned order was based on the sole statement of the counsel and not on merits of the case. Since the Revision Petition before the Addl. Sessions Judge was not disposed on merits, hence this petition is maintainable.
DELHI HIGH COURT
SINGLE BENCH
( Before : Usha Mehra, J )
SMT. DARSHAN KUMAR AND OTHERS — Appellant
Vs.
STATE AND OTHERS — Respondent
Criminal M. (M) No. 1724 of 1995
Decided on : 22-01-1996
Penal Code, 1860 (IPC) — Section — 420,. 406 — Criminal Procedure Code, 1973 (CrPC) — Section — 482 — Revision petition
Cases Referred
Deepti alias Arati Rai Vs. Akhil Rai and Others, (1995) 3 Crimes 818 : (1995) 7 JT 175 : (1995) 5 SCALE 328 : (1995) 5 SCC 751
Counsel for Appearing Parties
R.K. Kapoor, for the Appellant; R.D. Jolly and Rajender Kumar, for the Respondent
ORDER
1. This Revision petition is directed against the order passed by the Additional Sessions Judge, dated 22nd May, 1995, thereby dropping the charge framed by the Metropolitan Magistrate under Sections 420/120B against the accused persons.
2. The impugned order has been challenged, inter alia, on the ground that the Addl. Sessions Judge, without the consent of the petitioners on the basis of counsel’s statement could not have dropped the charges and thus disposed of the Revision petition.
3. To appreciate the challenge made by the petitioner the facts are important and necessary. Brief facts are that the complaint was lodged by Smt. Kusum respondent No. 3 herein against the petitioners and one Sh. Chaman Lal, Petitioner No. 1 got married with respondent No. 2. It was her case that she was thrown out from the matrimonial home on 3rd March, 1987, by respondent No. 2. Complainant/respondent No. 3 is the sister-in-law (Jethani) of petitioner No. 1. Petitioner No. 1 alleges that after having been beaten and thrown out from the matrimonial home, relations between the parties became strained and, Therefore, to harass the petitioner respondent No. 3 lodged the complaint against her and others including Chaman Lal. Respondent No. 3 in her complaint alleged that on 20th January, 1989, petitioners along with Chaman Lal came to the residence of the complainant to invite her and her father-in-law and sons on the marriage of petitioner No. 1’s younger brother Prakash Chand. After greetings the petitioner induced the complainant to get her gold ornaments prepared from petitioner No. 1’s brother and father. Complainant also wanted to get jewellery prepared because her daughter was to get married. Since the complainant was in need of money and intended to get prepared two sets of gold ornaments, she agreed and handed over 22 tolas of gold in the shape of two gold bars to petitioners 1 to 3 and accused Chaman Lal. It is further the case of prosecution that petitioners herein along with Chaman Lal represented that out of 22 tolas of gold bars they would prepare two gold ornaments sets weighing about ten tolas and for the balance gold they would pay her the market price. But neither the gold ornaments, nor the gold bars nor any money has been returned by the petitioners in spite of the repeated reminders given by the complainant. When the petitioners and Chaman Lal did not return 22 tolas of gold nor the cost for the same complainant lodged this complaint pursuance to which police registered the case u/s 420/120B read with Section 406/120B, IPC. Charge was framed by the Metropolitan Magistrate against the petitioners as well as against Chaman Lal. The petitioners challenged the order of framing the charge by filing a revision before the Sessions Judge. Matter was listed before the Addl. Sessions Judge, Delhi, on 22nd May, 1995 for arguments. That while the arguments were being heard the counsel for the petitioners made a statement. The counsel vide the said statement stated that he would not press the Revision provided charge u/s 420, IPC, was deleted and the learned Metropolitan Magistrate be directed to properly frame the charge u/s 120B, IPC, and the proceedings u/s 406 may continue against the accused persons. On the basis of this statement of the counsel, which statements was made without the authority of the petitioners Addl. Sessions Judge dropped the charge u/s 420/120B, IPC.
4. It is against this dropping of the charge u/s 420/120B that the petitioners have felt aggrieved. According to petitioners that counsel had no authority on behalf of the petitioners to make such a statement. The said statement was made by the counsel without any instructions from the petitioners. Under criminal procedure there is no provision to drop a charge on a counsel’s statement. Petitioners ought to have been appraised of the same before the Addl. Sessions Judge acted on counsel’s statement. No instructions were given to counsel to concede for the charge under Sections 120B and 406, IPC, and for dropping the charge u/s 420, IPC only. By doing so irreparable injury has been caused to petitioners.
5. Mr. R. D. Jolly, appearing for the State took preliminary objection that this being a second revision petition is not maintainable. The first Revision petition having been disposed of by the Addl. Sessions Judge this being second revision petition is not maintainable. In this regard he has placed reliance on the decision of the Supreme Court in the case of Deepti alias Arati Rai Vs. Akhil Rai and Others, .
6. Admittedly, there cannot be any quarrel with the proposition that second revision petition is not maintainable. This power cannot be invoked as against the order passed by the Sessions Judge, it being a Court of co-ordinate jurisdiction with same powers. But the point for consideration in this case is whether the impugned order is on merits or not ? If it is on merits then the present revision petition is barred, but if it is not then admittedly this Court would be within its right to exercise the jurisdiction be that under Article 227 of the Constitution or u/s 482, Cr.P.C.
7. In order to appreciate as to whether the impugned order is on merits or not the same is reproduced as under :-
“ORDER
In view of the above statement made by the Ld. counsel for the petitioners, as well as learned A.P.P. for the State, I order the deletion of charge framed u/s 420, IPC read with Section 120B, IPC and secondly on 24-8-92 by the Ld. M.M. Even otherwise from the material on record, there is no prima facie case for framing of charge u/s 420, IPC read with Section 120B against the accused. The charge criminal conspiracy framed by the learned M.M. is not complete. The learned M.M. is Therefore, directed to reframe the said charge properly specifically writing the section of the IPC under which the charge of criminal conspiracy is punishable. The Trial shall now proceed in the Court of the MM for the charges u/s 120B, IPC and 406, IPC only. As the case is quite old, I direct the Ld.M.M. to dispose of this case as expeditiously as possible. Revision petition stands disposed of accordingly. Revision petition be consigned and trial Court record be sent back immediately with a copy of this order. Petitioners will appear in the trial Court on the date already fixed there.”
8. Bare reading of this order shows that the order for deleting the charge u/s 420/120B, IPC, was passed by the Court on the basis of the statement made by the counsel for the petitioners. Had it not been so he would have discussed about the other charges like under Sections 406 and 120-B, IPC, which was also challenged by the petitioners in the Revision Petition. On the basis of the statement of the counsel for the petitioners he ordered for dropping of the charge under Sections 420/120B, IPC, and further directed that proper charge be framed u/s 120B which ground was even not taken in the Revision Petition. This clearly shows that the impugned order was based on the sole statement of the counsel and not on merits of the case. Since the Revision Petition before the Addl. Sessions Judge was not disposed on merits, hence this petition is maintainable. By no stretch of imagination it can be called a second revision petition because reading of the order as a whole does not indicate that it was a decision on merits. Therefore the judgment cited by Mr. Jolly is of no help to him.
9. For the reasons stated above I accept this petition and set aside the impugned order, remand the case to the Court of Addl. Sessions Judge, to try and dispose of the revision petition of petitioners on merits.
10. Petition allowed.
(1996) CriLJ 2930