1. Present Revision Application is filed by the applicant - original accused under Section 397 read with Section 401 of the Cr.P.C. against the judgment and order passed by the learned JMFC, Gandhidham
- Kutch dated 8.2.2007 in Criminal Case No.703 of 2005 below Exh.43 and 53, by which the learned JMFC has been pleased to reject the application preferred under Section 239 of the Cr.P.C. to discharge the applicant.
2. Learned advocate, Mr. Brahmbhatt for the applicant submitted that learned court below has committed an error of law while passing the impugned judgment and order. He also submitted that order of the learned court below is against the provisions of law and no cogent and convincing reasons are assigned and the application for discharge ought to have been granted. He also submitted that prima facie, the ingredients of Section 415 of the Indian Penal Code are not attracted. He, therefore, submitted that the order passed by the learned JMFC, Gandhidham - Kutch is required to be quashed and set aside.
3. Heard Mr. H.L.Jani, learned APP for the respondent - State. He has drawn attention of this Court to the decision of the Apex Court rendered in the case of Munna Devi Vs. State of Rajasthan, reported in AIR 2002 SC 107 and in the case of Ashish Chadha Vs. Smt. Asha Kumari & Anr, reported in AIR 2012 SC 431, and contended that the order of discharge cannot be challenged by way of Revision.
4. It is pertinent to note that no explanation is coming forth from the applicant that as to why the applicant has directly approached this Court. However, Mr. Brahmbhatt submitted that this Court is having concurrent jurisdiction and therefore, present revision application is filed before this Court as the same is maintainable.
5. I have heard learned counsel for the parties and perused the papers produced before me. In the above decisions of the Hon'ble Supreme Court in the case of Munna Devi (Supra) and in the case of Ashish Chadha (Supra) the Apex Court has observed as follows :-
"The High Court has in its revisional jurisdiction appraised the evidence which it could not have done. It is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charge against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether evidence collected by the prosecution discloses prima facie case against the accused or not. In this connection, we may usefully refer to the observations of this court in Munna Devi vs. State of Rajasthan & Anr.
"We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."
In such circumstances, the High Court should have left the final adjudication to the trial court by not quashing the charge. The High Court unnecessarily observed that the charge is vague. It overstepped its revisional jurisdiction. It is contended that the State of Himachal Pradesh had taken a stand that concerned revenue entries are genuine. In our opinion, whether concerned revenue entries are genuine or not will also have to be decided by the trial court after perusing the evidence led by the parties."
6. The above judgments are applicable to the present case and, therefore, I hold that this Court has no jurisdiction to entertain Revision Application as it is not maintainable, but just to protect the right of the present applicant, he is permitted to file fresh Special Criminal Application before the appropriate forum. Accordingly this revision application is disposed of. Rule is discharged.
7. Learned advocate for the applicant submitted that the learned trial Judge may be directed to give proper time upto filing of Special Criminal Application before this Court. Learned trial Court is directed to provide proper time for a period of one month to the applicant for filing of the Special Criminal Application.
8. Office is directed to place the matter i.e. Criminal Misc. Application No.2542 of 2007 before the appropriate Bench.
(Z. K. SAIYED, J.) ynvyas Top