Criminal Revision No. 758 of 2001 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 758 of 2001 (O&M) Date of decision: July 21 ,2009 Ranjit Singh .. Petitioner v. Jugraj Singh and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R.K.S. Brar, Advocate for the petitioner. Mr. R. K. Girdhar, Advocate for the respondents. .. Rajesh Bindal J. The complainant has approached this Court challenging the dismissal of the complaint and discharge of the respondents-accused in a complaint filed by him under Sections 323/500/452/506 read with Section 34 of the Indian Penal Code. Briefly, the pleaded facts are that the complainant had borrowed loan for installation of tubewell from Malout Primary Cooperative Agricultural Development Bank Ltd., Malout and paid four instalments. No notice of demand was ever made. On 15.11.1989, the respondents along with police officials and five other persons entered the house of the complainant and started abusing in filthy language. They asked about the complainant from his sons, who told them that the complainant had gone to the fields. They took both the sons to the field and on the way met the complainant. Respondent No. 1 slapped the complainant on his left cheek and respondent No. 2 slapped the complainant on right cheek and forcibly dragged the complainant in the jeep. On asking, the respondents told that the complainant had not paid the borrowed money. On the asking of the complainant about the warrants, they started beating and abusing the complainant. On raising alarm, some persons from the village came and saw the occurrence. On their assurance that if any instalment is due, the complainant will pay, the respondents left the complainant. The respondents had beaten, insulted and Criminal Revision No. 758 of 2001 [2] humiliated the complainant for the reason that he had not paid them commission at the time of sanctioning the loan. The complainant filed applications against the respondents but no action was taken by the police. Thereafter, the complaint was filed in the Court. . After recording preliminary evidence, the learned court below finding that the material on record was not sufficient to frame charge against the respondents, dismissed the complaint by discharging the respondents. It is against this order that the petitioner-complainant is before this Court. At the very out-set, learned counsel for the respondents raised a preliminary objection that against the order of discharge, which amounts to acquittal, application for special leave to leave was required to be filed before this Court and a revision against the order of discharge is not maintainable. Once that is so, the present petition in this Court is not maintainable. Reliance was placed upon Raja Ram Trehan v. Principal, Sudarshan Singh, Malva Khalsa Higher Secondary School, Ferozepur City, 1981 Cri. L.J. 1469; Bal Ram Suraj v. Dev Raj Dhiman, 1987(1) R.C.R. (Criminal) 616 and Mander Singh and others v. Ladi, 2008(4) R.C.R. (Criminal) 388 to submit that order of discharge amounts to acquittal. In response to the preliminary submissions, learned counsel for the petitioner submitted that the case was tried as a warrant case and discharge of an accused in such a situation does not amount of acquittal. Once it is not order of acquittal, the revision before this Court would be maintainable and the petitioner is not required to file application for special leave to appeal. He further submitted that in case this Court comes to the conclusion that revision was not maintainable, the petitioner has already filed an application under Section 378(4) Cr. P.C. seeking leave to treat the revision as an appeal against the order of discharge dated 16.3.2001. Reliance was placed upon Chand Mia v. Smt. Khayernessa Bibi, 1963 (2) Cri.L.J. 480. Further referring to the merits of the case, learned counsel submitted that the impugned order of discharge of the respondents is totally contrary to the settled position of law, as at the stage of framing of charge, the learned court below could not go into the merits of the evidence led and appreciate the evidence as it is only prima facie case is to be seen. Heard learned counsel for the parties and perused the paper book. As far as preliminary objection raised by learned counsel for the respondents is concerned, I find merit in the submissions made by him. This Court in Mander Singh's case (supra) had considered the issue in detail and opined as under: Criminal Revision No. 758 of 2001 [3] 5. While considering the identical issue, a Division Bench of this Court in Municipal Committee v. Shri Labhu Ram's case (supra) opined as under: “The first point raised by learned counsel for the Committee was that all the 14 cases fell within the category of summons cases in relation to which the Code of Criminal Procedure does not envisage an order of discharge in any event and that the impugned orders were liable to be set aside on that account alone. To the first part of this contention no exception can be taken as Chapter XX of the Code, which deals with the trial of summons-cases, does not talk of an order of discharge at all. On the other hand, it is clear from the provisions thereof that the proceedings against an accused person in a summons-case can end only two ways, i.e., either in his conviction or his acquittal. The second part of the contention, however, does not commend itself to us as it is well recognized that an order of “discharge” passed in such circumstances would amount to one of acquittal and may be treated as such. The contention, therefore, does not help the Committee in any way.” 6. In Arjan Dass v. Market Committee, Hissar, 1980 Punjab Law Reporter 469, a Single Bench of this Court considering a similar proposition and relying upon a judgment of Madras High Court in Palchmi v. Paramasiva Gounder, AIR 1958 Madras 197, observed as under: “5. The main ground urged by learned counsel for the petitioner is that the orders passed by the learned Chief Judicial Magistrate, which were wrongly recorded as discharge, was as a matter of fact orders of acquittal. The second argument is that no revision was competent against that order before the learned Sessions Judge and that the learned Sessions Judge was not competent to convert the revisions into appeals. xx xx xx 7. Chapter XX which provides for the procedure for trial of summons cases, contains Sections 251 to 259. Section 251 provides that when an accused is brought before the Magistrate, the particulars of the offence of which he is Criminal Revision No. 758 of 2001 [4] accused of, shall be stated to him. After that, his plea of guilt has to be recorded and in case of examination of evidence under Section 255 of the Code, contained in this Chapter, shall acquit him if in his opinion the accused is not guilty of the offence. When a comparative study of Chapters XIX and XX is made, it makes it clear that charge has to be framed only in a warrant case and when the charge is not framed, the accused has necessarily to be discharged. This shows that the words “charge” and “discharged”, are inter-linked and inter dependent and have been used only in that procedure where the charge has to be framed that is in warrant cases. Where the law does not provide for the framing of the charge there can be no question of discharge. In summons cases, there cannot be a question of discharge as the provisions do not contain such a word. The stage of acquittal comes after the framing of the charge. Under Section 251 of the Code only substance of accusation has to be stated. Technically, it might be taken akin to the framing of the charge, but when the question of discharge is to be considered relatively with this provision, it cannot be equated with the framing of the charge. I draw support from Palchmi v. Paramasiva Gounder, in which it was held as under: “.....In a summons case there is no question of discharge. It is either acquittal or dismissal under Section 203 Criminal Procedure Code. The trial court therefore could have only either passed an order of dismissal under Section 203 or an acquittal under Section 245 in a summons case. It cannot pass an order of discharge in a summons case. If it says that it discharges the accused in law it means acquittal.” The word “discharge” has been improperly used by the learned Chief Judicial Magistrate. In reality, the effect of this discharge in such cases is that of acquittal. 8. The next question which has been mooted between the parties is as to whether a revision was competent against an order of acquittal. Section 378(4) of the Code prohibits the filing of a revision where a right of appeal accrues to a party. The revisions therefore could not be filed by party which had a Criminal Revision No. 758 of 2001 [5] right of appeal.” 7. In Bal Ram Suraj v. Dev Raj Dhiman, 1987(1) Recent Criminal Reports 616, this court relying upon earlier judgment of this Court in Raja Ram Trehan v. Principal, Sudarshan Singh, Malva Khalsa Higher Secondary School, Ferozepur City, 1981 Criminal Law Journal 1469, opined that the order of discharge has to be read as an order of acquittal deemingly to have been passed under Section 255 of the Code and on that finding no revision was competent before the Additional Sessions Judge and thus the order was declared to be illegal. 8. Keeping in view the above consistent view of this Court and applying the same in the facts and circumstances of the present case where in a summons case, the petitioners were discharged by the learned Magistrate vide order dated 12.3.2003, in legal term, it amounted to acquittal of the petitioners. Against the order of acquittal, revision was not competent before the learned Additional Sessions Judge as the order could only be challenged before this Court by filing Special Leave to Appeal under Section 378 Cr.P.C. The impugned order dated 23.9.2003 passed by the learned Additional Sessions Judge is, thus, declared illegal and set aside.” As against this, reliance on a Single Bench judgment of Tripura High Court in Chand Mia's case (supra) is totally misconceived. Accordingly, while relying upon the judgment of this Court in Mander Singh's case (supra) and for the detailed reasons recorded therein, it is held that revision before this Court against the order of discharge of the respondents is not maintainable, as the order of discharge amounted to acquittal of the accused. At this stage, it would be appropriate to deal with alternative submissions made by learned counsel for the petitioner, namely, the prayer made in Criminal Misc. No. 30992 of 2007, i.e., application under Section 378(4) Cr.P.C. The said application makes an interesting reading. Relevant parts of the application are extracted below: “Application under Section 378(4) Cr.P.C. seeking leave to treat the above said revision petition as an appeal against the order dated 16.3.2001 passed by Sub Judicial Magistrate, Malaut acquitting the respondents/accused in a complaint case. xx xx xx 3. That an application was moved under Section 482 Cr.P.C. vide Criminal Revision No. 758 of 2001 [6] Crl. Misc. No. 7558 of 2007 for converting the revision in appeal. The present application is being filed seeking leave of this Hon'ble High Court to convert the Cr. Revision 758 of 2001 into an appeal. 4. That in the interest of justice and fair play, the above mentioned Crl. Revision is required to be treated as an appeal against the judgment of acquittal, so that the justice can be done to the petitioner while deciding the litigation on merit.” There is yet another application filed by the petitioner under Section 482 Cr.P.C. bearing Criminal Misc. No. 7258 of 2007 with the prayer to treat the present petition as an appeal. Section 378(3), (4) Cr.P.C. provide that no appeal to the High Court against the order of acquittal is to be entertained except with the leave of this Court, if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant, grants special leave to appeal from the order of acquittal. Meaning thereby, against an order of acquittal passed in a complaint, appeal is not maintainable as an application for special leave to appeal is required to be filed. The petitioner initially filed revision petition. The order of discharge/acquittal was passed on 16.3.2001. The application for converting the revision petition in an appeal was filed on 5.2.2007. Prayer therein is only to treat the revision petition as an appeal. The prayer is totally misconceived, as it is only after this Court grants special leave to appeal from the order of acquittal that the complainant can present appeal before this Court. Accordingly, the application bearing No. Crl. Misc. No. 7258 of 2007, being totally misconceived and not maintainable, is dismissed. Now coming to another application (Criminal Misc. No. 30992 of 2007) filed by the petitioner under Section 378(4) Cr.P.C., a perusal of the contents thereof, which have been partly extracted above, shows that the petitioner himself considered the discharge of the respondents vide order dated 16.3.2001 as “acquittal”. The only prayer made in this application is for treating the revision petition as an appeal against the judgment of acquittal. Merely because the section, under which the application has been filed, is changed, the petitioner cannot possibly be granted any relief even in this application which was filed on 15.5.2007, i.e., more than six years after the passing of the order of discharge. The prayer in the application is not for grant of leave to appeal but to treat the revision as an appeal. Accordingly, the present application also being totally misconceived, Criminal Revision No. 758 of 2001 [7] no relief, as sought, can be granted to the petitioner even in this application. For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed. (Rajesh Bindal) Judge July 21 ,2009 mk