Order issued by court with no jurisdiction becomes null and void in the eyes of the law if revision application is not maintainable in Revisional Court: Chhattisgarh High Court
An order issued by a court with no jurisdiction is void in the eyes of the law if a revision application is not maintainable before the Revisional Court. As a result, the Revisional Court’s order sustaining the learned Magistrate First Class’s order of complaint registration is likely to be nullified is upheld by the High Court of Chhattisgarh through the learned bench led by Hon’ble Shri Justice Narendra Kumar Vyas in the case of Sanjay Kumar Vaid Vs. Champa Lal Vaid (CRMP 566 of 2017) Brief facts of the case: The petitioner has filed the Cr.M.P. under Section 482 of the Cr.P.C., challenging the order of the Additional Sessions Judge (F.T.C.) Kabirdham. The petitioner is the nephew of respondent, Champa Lal Vaid and the son of Late Kamla Bai Vaid. It is claimed that the petitioner’s mother and respondent jointly owned property in Kawardha, and that Municipal Council Kawardha acquired a part of that property for the purpose of road widening. An sum of Rs. 3,52,460.00 was paid to respondent after deducting the amount of TDS of Rs. 40,472/- for the same. In 2012, the respondent filed a complaint with the Station House Officer alleging that the petitioner had illegally withdrawn an amount of T.D.S. by committing a cheating offence under Section 420 IPC that is refund of TDS was neither received by respondent nor Kamla Bai. The police submitted a report stating that the complaint was not deemed cognizable, and on February 25, 2013, respondent filed a complaint case under Section 200 of the Cr.P.C. before Chief Judicial Magistrate, Kawardha for the offence punishable under Sections 420, 467, 468, and 471 of the IPC. By order dated 13.05.2016, the learned Magistrate summoned a report from the concerned police station and, without reviewing the police report, recorded the complaint for the offence under Section 420 IPC. The petitioner filed a criminal revision with the Sessions Court, which was dismissed by the learned Revisional Court on January 28, 2017. Petitioner argue that the amount of refund from the income tax department is only payable to the PAN Card holder. No offence of cheating is possible as the Magistrate dismissed the petitioner’s revision without carefully considering the subject matter of the complaint, the documents on record.  The Magistrate made an error of law by dismissing the petitioner’s revision without carefully considering the subject matter of the complaint and the documents on record. Learned State counsel has also filed a return in which it claims that the order of the Judicial Magistrate First Class registering the complaint under Section 420 IPC against the petitioner is legal and justified because the petitioner has withdrawn the money through Pan No. and thus the petitioner has committed an offence under Section 420 IPC. In light of the judgement of the Court in Amarnath Agrawal Vs. Jai Singh Agrawal And Ors. (WP(Cr.) No. 116 of 2013) decided on February 10, 2015, the registration of the complaint cannot be questioned before the learned Revisional Court. It is apparent that a revision application under Section 397 Cr.P.C. contesting the registration of a complaint is not admissible and the Revisional Court dismissed the revision on the merits in this case. Thus, enough evidence against the petitioner to file a cheating case under Section 420 of the IPC (Cheating is defined in Section 415 of the IPC, and it is punished in Section 420 of the IPC). Further, the petitioner has argued that if the complainant records the material relating to the payment of money into the petitioner’s account, only a case of cheating can be made out against the petitioner, and that this case cannot be considered in light of the Supreme Court’s decision in Kaptan Singh v. State of Uttar Pradesh and Others. The Revisional Court’s order is not maintainable, and the documents on record support the conclusion that there is no basis for interfering with the registration of a complaint. As a result, the Cr.M.P. is liable to be dismissed, and is hereby dismissed. Additionally, For the purpose of adjudication of the current Criminal Miscellaneous Petition, the facts have been evaluated. The trial court is ordered to continue in conformity with the law, without being influenced by any of the observations made by the Court in deciding this Criminal Miscellaneous Petition, and to determine the case within two years of the parties’ first appearance.
1NAFRHIGH COURT OF CHHATTISGARH BILASPUR Reserved on 24 09 2021Pronounced on 07 12 2021CRMP No. 5617Sanjay Kumar Vaid S o Late Hukmichand Vaid Aged About 49 YearsR o Near Rishabhdev Chowk Bilaspur Road Kawardha TahsilKawardha District Kabirdham Chhattisgarh. Petitioner Versus 1.Champa Lal Vaid S o Nagraj Vaid Aged About 78 Years R o NearRishabhdev Chowk Bilaspur Road Kawardha Tahsil Kawardha District Kabirdham Chhattisgarh. 2.State Of Chhattisgarh Through The District Magistrate Kabirdham District Kabirdham Chhattisgarh. Respondents For petitioner: Shri Raj Kumar Pali AdvocateFor Respondent No. 1: Shri K.A. Ansari Sr. Advocate with Shri Aman Ansari AdvocateFor State: Shri Hariom Rai Panel Lawyer Hon ble Shri Justice Narendra Kumar VyasC.A.V. ORDER1.The petitioner has filed the present Cr.M.P. under Section 482 of theCr.P.C. challenging the order passed by the Additional SessionsJudgeKabirdham in Criminal Revision No. 24 2016 wherebylearned Revisional Court while dismissing the petition of thepetitioner has affirmed the order of the registration of criminal caseagainst the petitioner vide order dated 13.05.2016 passed by theChief Judicial Magistrate Kawardha District Kabirdham passed inCriminal Case No. 452 2016.2.The brief facts projected by the petitioner are that the petitioner is sonof Late Kamla Bai Vaid and nephew of respondent No. 1 Champa LalVaid. It is submitted that mother of the petitioner and respondent No.1 jointly owned property at Kawardha and some portion of the saidproperty was acquired by Municipal Council Kawardha for thepurpose of widening of the road. An amount of Rs. 3 52 460.00 was 2paid to respondent No. 1 and Kamla Bai jointly on 21.05.2008 afterdeducting the amount of TDS of Rs. 40 472 .3.The respondent has made complaint before the Station House Officerin the year 2012 that the petitioner has illegally withdrawn amount ofT.D.S. by committing offence of cheating under Section 420 IPC. Ithas been alleged that refund of TDS was neither received byrespondent No. 1 nor Kamla Bai. The police submitted its reportmentioning therein that the complaint is not found cognizable.Thereafter respondent No.1 filed a complaint case under Section 200of the Cr.P.C. on 25.02.2013 before Chief Judicial Magistrate Kawardha for the offence punishable under Sections 420 467 468and 471 of IPC. The learned Magistrate called report from theconcerned police station and without considering the report submittedby the police registered the complaint for the offence under Section420 IPC vide order dated 13.05.2016. The petitioner preferredcriminal revision before the Sessions Court and learned RevisionalCourt dismissed the criminal revision vide its order dated 28.01.2017.4.The learned counsel for the petitioner would submit that theMagistrate has committed error of law by dismissing the revision filedby the petitioner without considering the subject matter of thecomplaint minutely and documents placed on record. He wouldfurther submit that the amount of refund from the income taxdepartment is only payable to the PAN Card holder no offence ofcheating is possible. He would further submit that Kamla Bai washaving the Pan Card and the refund amount by cheque has alsobeen paid to her therefore the order passed by the Revisional Courton 28.01.2017 and registration of complaint by the Judicial Magistratemay kindly be set aside. 5.On the other hand learned State counsel has also filed return inwhich the State has said that the order passed by the JudicialMagistrate First Class registering the complaint under Section 420IPC against the petitioner is legal justified as the petitioner haswithdrawn the amount through Pan No. AGRPB2219H which belongsto the petitioner. Therefore the petitioner has committed offenceunder Section 420 IPC. Learned Judicial Magistrate rightly registeredthe complaint against which revision petition filed by the petitioner 3has also been rejected. Respondent No. 1 has not filed return andwould support the order of the revisional Court. 6.I have heard the learned counsel for the parties and perused therecord.7.This Court vide its order dated 13.07.2017 has called the record ofthe Court below. Before adverting to the legal submission raised bythe parties this Court has to examine whether the registration of thecomplaint by the Judicial Magistrate is revisable before the RevisionalCourt by way of revision under Section 397 of the Cr.P.C. or not It isnecessary to extract Section 397 of the Cr.P.C.: “Section 397 in The Code Of Criminal Procedure 1973 Callingfor records to exercise powers of revision.(1) The High Court or any Sessions Judge may call for andexamine the record of any proceeding before any inferiorCriminal Court situate within its or his local jurisdiction for thepurpose of satisfying itself or himself as to the correctness legality or propriety of any finding sentence or order recordedor passed and as to the regularity of any proceedings of suchinferior Court and may when calling for such record direct thatthe execution of any sentence or order be suspended and ifthe accused is in confinement that he be released on bail or onhis own bond pending the examination of the record.Explanation. All Magistrates whether Executive or Judicial andwhether exercising original or appellate jurisdiction shall bedeemed to be inferior to the Sessions Judge for the purposesof this sub section and of section 398.(2) The powers of revision conferred by sub sectionshall notbe exercised in relation to any interlocutory order passed in anyappeal inquiry trial or other proceeding.(3) If an application under this section has been made by anyperson either to the High Court or to the Sessions Judge nofurther application by the same person shall be entertained bythe other of them.” 8.The registration of complaint cannot be questionable before thelearned Revisional Court in view of the judgment passed by thecoordinate Bench of this Court in WP(Cr.) No. 1113(Amarnath Agrawal Vs. Jai Singh Agrawal And Ors.) decided on10th February 2015. The coordinate Bench of this Court consideringthe law on the subject has held in paragraphs 16 17 and 21 asunder: “16. The moot question is if a revision application against mere 4registration of FIR by the police is not maintainable whethersuch revision would be held maintainable when the Magistrateonly directs registration of FIR. In the opinion of this Court theanswer is an emphatic No. Exercise of revisory powerconferred by the Court under Section 397 read with Section401 of the Code would occasion when there is an order passedby the competent court which is not interlocutory in nature however the said power cannot be exercised to quash the FIRor investigation because such power can be exercised only bythe High Court under section 482 of the code or under Article226 227 of the Constitution of India. If the revision application isconsidered to be maintainable before the Sessions Courtagainst an order passed by the Magistrate under Section 156(3) and if such revision is allowed it would have effect ofquashing the FIR therefore if the Sessions Court has no suchpowers otherwise it cannot do so by entertaining a revisionagainst an order passed by the Magistrate under Section 156(3) of the Code. 17. Referring to its earlier decisions in DevarapalliLakshminarayana Reddy and Others v. V. Narayana Reddyand Others3 SCC 252) and Tula Ram and Others v.Kishore Singh4 SCC 459) the Supreme Court inSrinivas Gundluri and Others v. Sepco Electric PowerConstruction Corporation and Others8 SCC 206) hasheld that when a Magistrate orders investigation under Section156of the Code without examining merits of the claim theMagistrate does not bring into motion the machinery of ChapterXV of the Code therefore the Magistrate has not takencognizance of the matter and as such when such direction forinvestigation is made the Magistrate does not commit anyillegality. Even after receipt of such report the Magistrate undersection 190 of the code may or may not take cognizance of theoffence. Thus at the stage of directing investigation theMagistrate having not applied its mind as it has not takencognizance of the matter there is no order of the Magistratewhich can be revised under Section 397 read with Section401 of the Code. What is revisable under section 397 of thecode is the correctness legality or propriety of any finding sentence or order recorded or passed and as to the regularityof any proceeding of such inferior court against whose orderthe revision application has been preferred. When there is nofinding sentence or order against the accused the same is notrevisable under section 397 of the code. 21. The legal position which would emerge from the abovereferred judgments of the Supreme Court is as follows: Investigation into a cognizable offence by Inchargeof jurisdictional police station is a statutory power. Oncean information is sent to the jurisdictional policeregarding commission of a cognizable offence it is thestatutory duty of the said police to investigate offence.{Lalita KumariSri Bhagwan SamardhaSreepada Vallabha Venkata Vishwanandha Maharaj(supra) and Rajesh Gandhiof the Cr.P.C. Magistrate isconferred limited power to ensure that the policeinvestigate all cognizable offences and do not refuse todo so by abusing the right granted for certain limitedcases of not proceeding with the investigation of theoffence {Dharmeshbhai Vasudevbhaiis at the pre cognizance stage. Such exercise isdone by the Magistrate when the concerned police officerfails to investigate the matter as is obligatory upon him. To exercise revisory power under Section 397 theCourt whose order is sought to be revised must haverecorded some finding order or sentence or have drawna proceeding which is ex facie illegal or withoutjurisdiction. While directing the police officer toinvestigate the matter the Magistrate neither records anyfinding nor passes any order or sentence against theaccused because at that stage the registration of FIR isonly against the prospective accused. If it is held that an order under Section 156ofthe Code is revisable the same would amount to clothingthe Sessions Court with the power of quashing the FIR orinvestigation. Such power is conferred only on the HighCourt under section 482 of the code or under Article226 227 of the Constitution of India.”9.From the afore stated legal position it is quite clear that revisionapplication under Section 397 Cr.P.C. challenging the registration ofcomplaint is not maintainable though in the present case theRevisional Court has dismissed the revision on merits which isagainst the law. As once revision application itself is not maintainablebefore the Revisional Court then order passed by Court having nojurisdiction is nullity in the eye of law. As such the order of theRevisional Court affirming the order of registration of the complaint bythe learned Magistrate First Class is liable to be quashed. 10.Since the petitioner has also challenged the registration of complainton the count that Kamla Bai was having pan card and the amountwas also paid to Kamla Bai through cheque as cheque has been 6deposited in the account of Kamla Bai. The learned Court below failedto consider report submitted by the police where after recording of thestatement of Kamla Bai they submitted that no offence is made outfor registration of complaint still the Judicial Magistrate First Classhas registered the complaint which is nothing but an abuse of processof law to create pressure on the petitioner with ulterior motive.Therefore the learned counsel for the petitioner would submit that thepetition under Section 482 of the Cr.P.C. be allowed and order ofregistration of complaint on 13.05.2016 be kindly quashed 11.For better understanding of the facts of the case it is expedient toextract relevant paragraphs of the complaint which are as below: “5. g fd ifjoknh us viuk isu uEcj fn k gS u gh mDr jkf k fudkyus dksLohd`fr fn k gS ds ckn Hkh mDr jkf k vfHk qDr }kjk fudky fy k x k gSA6 g fd ifjoknh vk dj dh jkf k gsrq jktukanxkao vkfQl x k o irk fd k rksvkWfQl esa mDr Vh0 Mh0 l0 dh jde fudky ysuk crk k x k oa vfHk qDr}kjk gh fudkyuk crk k x kA7] g fd mDr jde dks fudkyus dk vf kdkj vfHk qDr dh eka deykckbZ dks kifjoknh dks Fkk ij nksuksa us jde ugha fudkys o vfHk qDr us NyiqoZd mDrjkf k fudkyk gSA8 g fd uxj ikfydk do kkZ fcuk tkap fd s oa fcuk fdlh vf kdkj dstkucw>dj vk dj nkrk dks jde nsuk crk k gS tcfd u rks ifjoknh viukisu uEcj fn k gS u ghs vfHk qDr dhs eka deykckbZ dk isu uEcj gS] vfHk qDrNy dj viuk isu uEcj dk mi ksx dj ifjoknh ls Ny fd k oa Ny djjde fudky fy k gSA10 g fd uxj ikfydk do kkZ }kjk deykckbZ oa ifjoknh ds lq qDr uke lsVh0Mh0 l0 lfVZfQdsV tkjh fd k x k gS ijUrq mlds isu uEcj nksuksa esa lsfdlh dk Hkh mYysf[kr ughs gS] ifjoknh }kjk laidZ fd s tkus ijvk0vkbZ0Vh0 ds varxZr fnukad 28@11@2011 dks uxj ikfydk }kjk crk kx k fd djnkrk }kjk miyC k djk x isu uEcj 22194 Vh Mh l dh jkf kdk Hkqxrku fd k x k gS tcfd g isu nksuksa TokbZUV ilZu dk ugha gS rFkkvk dj foHkkx }kjk isu dkMZ tks b w fd k tkrk gS mlesa isudkMZ kkjh dkuke] firk dk uke] isu uacj rFkk tUe frfFk vafdr jgrk gSA bl izdkj uxjikfydk }kjk xyr isu uEcj dk mi ksx dj Vh Mh l xyr dkmUV essatek fd k x kA13 g fd vfHk qDr dks dksbZ vf kdkj ugha Fkk fd og Vh Mh l dh jkf k izkIrdj lds fdarq rRdkyhu eq[ uxj ikfydk vf kdkjh ls feyhHkxr djvfHk qDr us ifjoknh oa vU ds uke ls vkcafVr eqvkotk jkf k ds fo:) Vh Mh l dh jkf k QthZ isu dkMZ ds ek e ls 40]472@& :i s QthZ vkgj.kfd k gSA rFkk vk dj vf kdkjh jktukanxkao ls ifjoknh us iqNrkN fd k rctkudkjh gqbZ fd ifjoknh oa deykckbZ cSn ds uke ij LFkkbZ ys[kkla[ k w Dlihch 2940 p oa vkbZdsih 3428 vkj ntZ Fkk vkSj Vh Mh l jkf k 40]472 :i s dk izek.k i= izk:i&16 uxj ikfydk ifj"kn ds rRdkyhueq[ uxj ikfydkf kdkjh us vfHk qDr ds uke ls tkjh fd k gS tks djfu kkZj.k o"kZ 2009&10 foRrh o"kZ 2008&09 ds fy tkjh fd k x k gS vkSjvk dj vf kdkjh egksn us g Hkh crk k fd nksuksa nkosnkj }kjk vk djfooj.kh nkf[ky ugha fd k x k gS vkSj u gh nkosnkjh izLrqr dh Fkh blfy 7nksuks nkosnkjksa dks vk dj foHkkx }kjk fjQ.M tkjh djus dk iz u mifLFkrugha gksrkA bl rjg g Li"V Fkk fd ifjoknh us Vh Mh l jkf k fjQ.M dsfy s dksbZ vkosnu izLrqr ugha fd k vkSj u gh mls jkf k izkIr gqbZ gS]vfHk qDr us ifjoknh dk dwVjfpr isu dkMZ uEcj rS kj dj ifjoknh ds ukels tek jkf k Vh Mh l dh jkf k 40]472@& :i s NyiwoZd csbekuh ls izkIrfd k gS tks kkjk 420 Hkk na fo 467] 468] 471 Hkk na fo ds rgr~ naMuh vijk k gSA”12.From bare perusal of the above mentioned paragraphs of thecomplaint it is clear that prima facie sufficient material is availableagainst the petitioner for registration of complaint for cheating underSection 420 IPC. Section 415 of the IPC which defines cheating andSection 420 IPC which provides the punishment for cheating areextracted below : “Section 415 of the IPC Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived todeliver any property to any person or to consent that anyperson shall retain any property or intentionally induces theperson so deceived to do or omit to do anything which hewould not do or omit if he were not so deceived and which actor omission causes or is likely to cause damage or harm to thatperson in body mind reputation or property is said to "cheat".Section 420 of the IPC Cheating and dishonestly inducingdelivery of property.—Whoever cheats and thereby dishonestlyinduces the person deceived to deliver any property to anyperson or to make alter or destroy the whole or any part of avaluable security or anything which is signed or sealed andwhich is capable of being converted into a valuable security shall be punished with imprisonment of either description for aterm which may extend to seven years and shall also be liableto fine.”13.The petitioner has raised grounds that the complainant should placeon record the material with regard to payment of amount in thepetitioner’s account then only offence of cheating can be made outagainst the petitioner. This is his defence which has been taken bythe petitioner and it cannot be considered in the light of the judgmentof Hon ble Supreme Court in case of Kaptan Singh v. State of UttarPradesh and others1. Relevant part of the judgment is extractedbelow: “9.2 In the case of Dhruvaram Murlidhar Sonarafterconsidering the decisions of this Court in Bhajan Lalitis held by this Court that exercise of powers under Section 482Cr.P.C. to quash the proceedings is an exception and not a1AIR 2021 SC 3931 8rule. It is further observed that inherent jurisdiction underSection 482 Cr.P.C. though wide is to be exercised sparingly carefully and with caution only when such exercise is justifiedby tests specifically laid down in section itself. It is furtherobserved that appreciation of evidence is not permissible at thestage of quashing of proceedings in exercise of powers underSection 482 Cr.P.C. Similar view has been expressed by thisCourt in the case of Arvind KhannaManagipetreferred to hereinabove. 9.3 Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand we are of theopinion that the High Court has exceeded its jurisdiction inquashing the criminal proceedings in exercise of powers underSection 482 Cr.P.C.”14.In view of the fact that the order of the Revisional Court is notmaintainable and considering the materials available on record I amof the view that no ground for interference with the registration ofcomplaint is made out. Therefore the Cr.M.P. liable to be and ishereby dismissed.15.With the aforesaid observations and directions the present Cr.M.P.is dismissed. 16.It is made clear that this Court has not expressed anything on themerits of the case. The facts have been considered for adjudicationof the present Criminal Miscellaneous Petition. The trial Court isdirected to proceed further in accordance with law without beinginfluenced by any of the observations made by this Court whiledeciding this Criminal Miscellaneous Petition and decide the casewithin an outer limit of 2 years from the date of appearance of theparties. The complainant and accused are directed to appear beforethe learned Judicial Magistrate First Class on 04.01.2022. Therecords of the trial Court be sent back forthwith. Sd Judge kishore 