1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR JUDGMENT S.B. Criminal Revision Petition No.1455/2009 S.B. Criminal Misc. Stay Application No. 1743/2009 (Rakesh Gupta Versus State of Rajasthan & Another) Date of Judgment :: 23rd February, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Pankaj Gupta, counsel for the petitioner Mr. Javed Chaudhary, PP for the State of Rajasthan Mr. S.K. Gupta, counsel for the respondent no.2 This criminal revision has been preferred against the order dated 3rd July, 2009 rendered by the Additional Sessions Judge No.2, Bharatpur, whereby the learned Additional Sessions Judge allowed the criminal revision petition no. 12/2009 and set-aside the order dated 6th January, 2009 passed by the Chief Judicial Magistrate, Bharatpur, whereby the Chief Judicial Magistrate, Bharatpur took the cognizance of the offence under Section 58 of NDPS Act, 1985 and the offences under Sections 166, 211, 220, 342, 458 and 500 of Indian Penal Code and issued a warrant of arrest 2 against the accused non petitioner no.2 Anil Agarwal to procure his appearance in the Court. 2. Background facts, emerging in the instant case, in a nut shell, are stated thus: “That the complainant revisionist Rakesh Gupta happens to be proprietor of firm “Poddar International” and engaged in the business of purchase and sale of alopathic drugs and medicines. He obtained a license to run the business from the State Government as also an import and export code no. 1305003004 from the Government of India. It has been alleged that the accused respondent no.2 Anil Agarwal, the Drug Control Officer, Bharatpur was also running the same business in the name of his relative Umakant. The accused respondent no.2 Anil Kumar was rendering his full support to Umakant in his business. Since both the complainant revisionist and the accused respondent no.2 were involved in running the same business, a business rivalry between the two cropped up and ultimately it became personal. It is further alleged that on 17th 3 March, 2005, an inspection was carried out by both, the Drugs Inspector and the police. The police registered the First Information Report No. 66/2005 in the offences under Sections 8/22 and 8/23 of NDPS Act, whereas Drugs Inspector filed a separate complaint for the offences under Sections 27(b) (ii) and 28 of the Act. The police seized the relevant documents as also material on the spot. In order to further the action of accused respondent no.2, Raj Kamal Chhipa, Drugs Inspector filed a complaint against the revisionist and his wife Smt. Jyoti Gupta whereupon the court took the cognizance of the offences and proceeded against them. Aggrieved with this order of cognizance, the revisionist challenged the same in the High Court and the High Court having allowed the petition, quashed and set-aside the order of cognizance dated 24th May, 2005. The accused revisionist no. 2 under a hatched plot planned an inspection of the business premises to be taken by the police on account of personal animosity and the police illegally seized 4 the relevant documents and drugs, illegally detained his wife Smt. Jyoti Gupta, abused his official position, instituted a false criminal proceeding against him and his wife with an intent to cause injury to them. Not only that, these proceedings were totally unjust and unlawful but they were illegally sent for trial also to the Court. Shri Cheepa filed a private complaint under section 200 of Cr.P.C. before the Court of Chief Judicial Magistrate, Bharatpur, who having recorded the statements of the complainant revisionist and other witnesses, took cognizance of the offences under Section 58 of NDPS Act, Section 166, 211, 220, 342, 458, and 500 of Indian Penal Code and issued a warrant of arrest to procure the appearance of accused non revisionist no. 2 Anil Kumar Agarwal. Aggrieved with the order of taking cognizance of the aforesaid offences, accused respondent no.2 filed a criminal revision petition no. 12/2009, which was allowed by the Additional Sessions Judge No.2, Bharatpur. Additional Sessions Judge No.2, Bharatpur also quashed and set-aside the 5 impugned order dated 6th January, 2009, whereby the Chief Judicial Magistrate took the cognizance of the aforesaid offences and issued a warrant of arrest against Anil Kumar Agarwal.” 3. Aggrieved with the impugned order dated 3rd July, 2009 rendered by the Additional Sessions Judge No.2, Bharatpur, complainant revisionist Rakesh Gupta has filed this second criminal revision petition no. 1455/2009 in the High Court, which is pending for its adjudication before me. 4. Heard learned counsel for the parties and carefully perused the relevant material on record. 5. Mr. Pankaj Gupta, the learned counsel for the revisionist canvassed that undeniably and un-disputably a search was arranged by accused respondent no.2 Anil Agarwal- Drug Inspector with the assistance of police and during this search many relevant documents, drugs and other material were seized and his wife was wrongfully confined. Anil Agarwal got this search carried out on account of 6 business rivalry, which later-on converted into personal animosity. Since the accused Anil Agarwal was himself carrying on the business of purchase and sale of drugs and medicines in the name of his relative Umakant, who out of business vendetta managed the search of revisionist's business premises to injure his reputation. Anil Agarwal was served with a charge-sheet for this misconduct by the Department and enquiry of this case was transferred to another Drug Inspector Raj Kamal Chhipa. Anil Agarwal challenged the charge sheet right upto Supreme Court, where the SLP was also dismissed on 20th January, 2008. The learned Chief Judicial Magistrate, Bharatpur having considered all the facts, circumstances and evidence on record, rightly took the cognizance of the aforesaid offences and issued a warrant of arrest against accused Anil Agarwal. The revisional court – Additional Sessions Judge No.2, Bharatpur decided the criminal revision petition in a manner as if the case was being finally decided. At the stage of taking cognizance of offence, 7 the court is required to consider only the averments made in the complaint. The Court is not required to sift and appreciate the evidence at this stage. The learned Additional Sessions Judge No.2, Bharatpur appreciated the entire evidence in detail and wrongly set-aside the order of taking cognizance dated 6th January, 2009 rendered by the Chief Judicial Magistrate, Bharatpur. 6. He further canvassed that the protection of prosecution sanction under Section 197 Cr.P.C. was not available to the accused respondent no.2 as he managed the search of his premises with personal vendetta as he had already nurtured personal animosity on account of business rivalry with the complainant revisionist. The act of accused respondent no.2 Anil Agarwal cannot be said to be an act in the discharge of his official duty. Hence, no prosecution sanction was required to be obtained under Section 197 of Cr.P.C. and learned Additional Sessions Judge wrongly held that the sanction was required and thus, arbitrarily set-aside the order 8 dated 6th January, 2009 passed by the Chief Judicial Magistrate, Bharatpur. He has cited umpteen pronouncements of Hon'ble Apex Court and this Court in support of his arguments. 7. E Contra Mr. S.K. Gupta, learned counsel for the accused non revisionist No.2 as also the learned PP appearing for the State vehemently rebutted the submissions made by the learned counsel for the revisionist and contended that second revision was not maintainable under the provisions of Criminal Procedure code, 1973. 8. Learned counsel Mr. S.K. Gupta further defended the impugned order dated 3rd July, 2009 rendered by the Additional Sessions Judge No.2, Bharatpur and stated the same to be just and proper based on cogent reasoning. He further contended that so far as the inspection or the search conducted by the accused non revisionist no.2 Anil Agarwal with the aid of police is concerned, it was an act in the discharge of his official duty and no allegation such as of business rivalry or 9 personal animosity could be ascribed to him. Learned Additional Sessions Judge No.2, Bharatpur rightly observed that the protection of prosecution sanction under Section 197 of Cr.P.C. was available to him and the learned CJM without there being prosecution sanction of the State Government arbitrarily took cognizance of the aforesaid offences and issued a warrant of arrest against him. The instant criminal revision petition being the second criminal revision petition filed under Section 397 of Cr.P.C. is not maintainable and the same deserves to be dismissed on this legal ground alone, albeit the second criminal revision petition is also found to be totally devoid of substance and deserves to be dismissed on merits also. 9. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the fist criminal revision petition no. 12/2009 was preferred against the impugned order dated 6th January, 2009 rendered by the Chief 10 Judicial Magistrate, Bharatpur, whereby he took the cognizance of the aforesaid offences and issued a warrant of arrest against accused non revisionist no.2 Anil Agarwal. This is the second revision, which has been preferred by the revisionist Rakesh Gupta. 10. Chapter XXX of Cr.P.C., 1973 deals with reference and revision. The High Court and the Sessions Judge have concurrent jurisdiction to decide a criminal revision. Section 397 of Cr.P.C. reads thus: “397. Calling for records to exercise powers of revision.-(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or other be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.-All Magistrates, whether Executive or Judicial, and 11 whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” 11. A bare reading of above Section 397 reveals that while conferring concurrent revisional jurisdiction on the High Court and the court of Sessions, the right of a person to invoke the revisional jurisdiction of the High Court has been taken away in case he has already approached the Sessions Judge in revision. The reason for such a restriction is that Section 399 confers on the Sessions Judge all the powers, which the High Court can exercise. It will be noticed that sub- section (3) of Section 397 prohibits a person from invoking the revisional jurisdiction of more than one court. Apart 12 from this, the second criminal revision at hand is not found to have stood on merits too. 12. I have gone through the private complaint filed by the complainant revisionist Rakesh Gupta against accused non revisionist no. 2 Anil Agarwal. The facts mentioned in the private complaint are said to have been supported by the statements of Rakesh Gupta and his wife Jyoti. A bare perusal of the facts of the complaint reveals that the allegations levelled against Anil Agarwal therein are totally omnibus in nature and not specific at all. The statement of Rakesh Gupta has been supported by his wife Jyoti, who was an accused in a case, which was lodged against her by the police. The facts of the complaint tangibly suggest that this complaint was filed on account of there being personal animosity between the parties. The learned counsel for the revisionist has himself conceded frankly in the Court that the accused non revisionist no.2 maneuvered a search and seizure of the place of his business on 13 account of business rivalry. There is not even a shred of evidence emerging on record, which could reflect that the search of the place of business of revisionist was maneuvered by Anil Agarwal, Drug Control Inspector. At the time of search of the place of business of the revisionist, the senior officers of Police Department including CO & Additional SP and the Drugs Control Inspector were present there. There is no evidence on record, on the basis of which it could be gathered that Jyoti Gupta was wrongfully detained in custody. She was arrested by police and detained in custody by the orders of the Judicial Magistrate. If she remained in confinement for 27 days, it was not pursuant to any order passed by accused non revisionist no. 2, rather she remained in custody pursuant to the orders of the competent court. The private complaint against the revisionist and his wife is also found to have been filed by Raj Kamal Cheepa, Drugs Inspector and not by the accused Anil Kumar Agarwal. FIR was also not lodged by him in Police 14 Station, Kotwali, Bharatpur. There is not even a whisper on record, which could suggest that Anil Agarwal in one way or the other way abused his official position and committed an act, which was not a part of his official duty. The question of sanction does not arise only when the act complained of is an offence, but if the act has been committed by a public servant in the discharge of his official duty, the court is barred from taking cognizance of such an offence except with the previous sanction of the State Government or the Central Government, as the case may be. 13. A mere fact of there being a personal animosity between the two parties cannot lead this Court to infer that a public servant committed an act which was not a part of his official duty and thus, he committed offence. From no stretch of imagination, it can be observed that the wife of revisionist Jyoti was illegally detained in custody by the accused non revisionist no. 2 Anil Agarwal and the search at the place of the business of the revisionist was conducted by him that too 15 with an intention to injure his reputation. The learned Chief Judicial Magistrate, Bharatpur sans there being any evidence on record took cognizance of the offence under Section 58 of NDPS Act and the offence under Section 166, 211, 220, 342, 458, 500 of IPC and the learned Additional Sessions Judge No.2, Bharatpur is found to have rightly set-aside the order of taking cognizance of the aforesaid offences and issuing the process against Anil Agarwal. The order dated 6th January, 2009 rendered by the Chief Judicial Magistrate, Bharatpur per-se seems to be illegal as he is found to have taken cognizance of the offences against non revisionist no. 2 Anil Agarwal. 14. This Court has consistently come across with the orders, whereby the learned Judicial Magistrate took cognizance of the offences against accused. It is very relevant to record here that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not of the offender. Once 16 he takes cognizance of an offence, it is his duty to find out as to who the offenders really are. Thus, the Judicial Magistrate is required to take cognizance of the offences and not of the offenders. 15. The learned Chief Judicial Magistrate is found to have taken cognizance of the offences against accused. Thus, both, in language and the style, an order of taking cognizance is found to be legally defective. Nevertheless, the learned Additional Sessions Judge No.2, Bharatpur has rightly set-aside the order dated 6th January, 2009 passed by the Chief Judicial Magistrate, Bharatpur. The impugned order is found to be just and proper and the same suffers from no infirmity. I am in full unison with the observations and the finding arrived at by the learned Additional Sessions Judge No.2, Bharatpur, whereby the order dated 6th January, 2009 taking cognizance and issuing the process has been quashed and set-aside and thus, the impugned order dated 3rd July, 2009 rendered by the Additional Sessions Judge 17 No.2, Bharatpur warrants no intervention. 16. The judgments cited by the learned counsel for the revisionists have no bearing in the facts and circumstances of the case at hand. 17. For the reasons stated above, the second criminal revision petition filed by Rakesh Gupta being bereft of any merit deserves to be dismissed and the same stands dismissed accordingly. 18. Consequent upon the dismissal of criminal revision petition, the stay application. filed therewith, does not survive and the same also stands disposed of. (MAHESH BHAGWATI), J. DK/-