Criminal revision petition under Section 397 CrPC against order framing charge under Section 302 IPC
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
0 of 42 blanks filled
IN THE COURT OF THE DISTRICT & SESSIONS JUDGE, GAUTAM BUDH NAGAR, NOIDA
CRL. REVISION PETITION No. Revision petition number OF 2017
IN THE MATTER OF:
Revisionist's nameREVISIONIST
VERSUS
Respondent's nameRESPONDENT
FIR No. FIR number/2015
U/S: 379 IPC
P.S.: Police station
INDEX
S.No.PARTICULARS
1.MEMO OF PARTIES.
2.CRIMINAL REVISION PETITION UNDER SECTION 397 OF Cr.P.C. ALONGWITH AFFIDAVIT.
3.Exhibit number for order copy P-1 — COPY OF ORDER DATED Date of impugned trial court order PASSED BY THE LEARNED TRIAL COURT.
4.Exhibit number for FIR copy P-2 — COPY OF FIR No. FIR number/2015 UNDER SECTION 379 IPC, P.S. Police station.
5.Exhibit number for FDR copy P-3 — COPY OF F.D.R.
6.Exhibit number for RC copy P-4 — COPY OF RC No. RC number.
7.Exhibit number for superdari application copy P-5 — COPY OF SUPERDARI APPLICATION FILED BEFORE THE LEARNED TRIAL COURT.
8.Exhibit number for superdari order copy P-6 — COPY OF ORDER DATED Date of superdari order (day).Date of superdari order (month).2015 PASSED BY THE LEARNED TRIAL COURT ON THE SUPERDARI APPLICATION.
9.Exhibit number for Section 451 application copy P-7 — COPY OF APPLICATION UNDER SECTION 451 Cr.P.C. FILED BY THE PETITIONER SEEKING PERMISSION TO SELL THE CAR.
10.VAKALATNAMA.
DELHIREVISIONIST
THROUGH:
Advocate's nameADVOCATE FOR THE REVISIONIST
DATED:
IN THE COURT OF THE DISTRICT & SESSIONS JUDGE, GAUTAM BUDH NAGAR, NOIDA
CRL. REVISION PETITION No. Revision petition number OF 2017
IN THE MATTER OF:
Revisionist's nameREVISIONIST
VERSUS
Respondent's nameRESPONDENT
FIR No. FIR number/2015
U/S: 379 IPC
P.S.: Police station
MEMO OF PARTIES
Revisionist's addressREVISIONIST
VERSUS
Respondent's addressRESPONDENT
DELHIFILED BY
DATED:
Advocate's nameADVOCATE FOR THE REVISIONIST
The matter is pending before the learned Trial Court of Sh. Name of trial court judge, learned Chief Judicial Magistrate, Trial court location, in FIR No. FIR number/2015 under Section 379 of the IPC registered at Police Station Police station, in the case titled State v. Unknown, which is fixed for Date fixed for next hearing.
IN THE COURT OF THE DISTRICT & SESSIONS JUDGE, GAUTAM BUDH NAGAR, NOIDA
CRL. REVISION PETITION No. Revision petition number OF 2017
IN THE MATTER OF:
Revisionist's nameREVISIONIST
VERSUS
Respondent's nameRESPONDENT
FIR No. FIR number/2015
U/S: 379 IPC
P.S.: Police station
REVISION PETITION UNDER SECTIONS 397/399/401 OF THE CODE OF CRIMINAL PROCEDURE AGAINST THE IMPUGNED ORDER DATED Date of impugned order (2017).2017 PASSED BY THE LEARNED TRIAL COURT OF SH. Name of trial court judge, LEARNED CHIEF JUDICIAL MAGISTRATE, Trial court location, WHEREBY THE LEARNED TRIAL COURT WAS PLEASED TO DISMISS THE APPLICATION UNDER SECTION 451 Cr.P.C. FILED BY THE PETITIONER.
MOST RESPECTFULLY SHOWETH:
1.That the revisionist is a law-abiding citizen and has full faith in the administration of justice. That the revisionist has sought to invoke the extraordinary jurisdiction of this Hon'ble Court under Section 482 of the Code of Criminal Procedure.
2.That the revisionist has been constrained to file the present revision petition seeking setting aside of the order dated Date of impugned order (2017).2017 passed by the learned Trial Court of Sh. Name of trial court judge, learned Chief Judicial Magistrate, Trial court location, in FIR No. FIR number/2015 under Section 379 of the IPC registered at Police Station Police station, in the case titled State v. Unknown, whereby the learned Trial Court was pleased to dismiss the application under Section 451 Cr.P.C. filed by the petitioner seeking permission to sell the car; hence the said order is impugned in this petition.
3.That the question of law arising in the present revision petition is whether the learned Trial Court failed to appreciate that the revisionist ought to have been discharged in view of the contradictory statements made by the complainant in FIR No. FIR number (2016)/2016, and further, whether the allegations levelled by the complainant do not attract the commission of the offences with which the revisionist stands charged.
4.That the present revision has been filed by the revisionist, and the brief facts of the case necessary for the disposal of the present revision may be summarised as under:
A.It has been stated that:
1.That the captioned FIR bearing No. FIR number of 2015 was registered at the instance of the applicant/owner at Police Station Police station under Section 379 of the IPC on Date of FIR registration (day).Date of FIR registration (month).2015 in relation to the theft of the Honda Civic car bearing No. Car registration number.
2.That during the course of investigation, the officials of Police Station Police station recovered the said car, and consequently the applicant moved an application before this Hon'ble Court for release of the aforesaid car on superdari, and this Hon'ble Court, vide order dated Date of superdari order (day).Date of superdari order (month).2015, allowed the application.
3.In pursuance thereof, the applicant furnished all relevant documents and surety in the amount of ₹Surety amount (₹)/- for release of the car on superdari, as per the satisfaction of this Hon'ble Court, while taking the said car on superdari.
4.It is most humbly submitted that the said car bearing No. Car registration number is almost ten years old, requires repeated maintenance and repair, and its market value is fast depreciating.
5.That the captioned matter is still at a preliminary stage and will take considerable time for its conclusion. In view thereof, the applicant, who is the owner of the said car, would suffer immensely on account of the said delay. Pertinently, all the requirements for release of the said car on superdari stand completed to the satisfaction of this Hon'ble Court, and if permission to sell the said car is granted to the applicant, it would cause no prejudice to the prosecution.
6.Furthermore, in view of the judgment in Sunderbhai Ambalal Desai v. State of Gujarat, AIR 2003 Supreme Court 638, it is submitted that the vehicle can be allowed to be sold without any condition of superdari. The Hon'ble Supreme Court in the said case has further held that photographs of the vehicle can be used as secondary evidence during trial and there is no requirement of physical production of the vehicle.
7.That the applicant is willing to place photographs of the said car on record so that they may be used in evidence instead of production of the said car before this Hon'ble Court during the trial.
8.It is submitted that with age, the said vehicle has lost its roadworthiness, and if permission to sell the said car is not granted, the applicant would suffer grave loss, as the car would have to be kept in a stationary condition.
9.In view of the aforesaid facts and circumstances, coupled with the judgment passed by the Hon'ble Supreme Court of India, the car may be released to its rightful owner (the applicant), and at the time of release, photographs of the said vehicle may be taken so that during the course of trial, actual production of the vehicle is not insisted upon, and the photographs suffice for the purposes of evidence during the stage of evidence.
B.That it has been further stated by the complainant that:
C.That thereafter, upon hearing arguments, the learned Trial Court was pleased to frame charge against the revisionist under Section 302 of the IPC, and accordingly the charge was framed on Date of framing of charge (2016).2016, and the order framing charge against the revisionist is impugned in this petition.
5.That the order of the learned Trial Court framing charge against the revisionist is erroneous, inasmuch as the learned Trial Court failed to consider that there is no legally admissible evidence against the revisionist connecting him even prima facie with the commission of the alleged offence; besides, the complaint has been filed only to exert pressure upon the revisionist.
6.That the Learned Trial Court erred in framing the charge against the Revisionist inasmuch as it failed to consider that there is a catena of judgments rendered by the Hon'ble Supreme Court of India and various other High Courts wherein it has been categorically held that before a person can be held liable for any act, there must be some material on record against him.
7.That aggrieved by the aforesaid order on charge framed by the Learned Trial Court, the Revisionist has preferred the present revision petition on the following, amongst other, grounds:-
- : G R O U N D S : -
I.That the Learned Trial Court failed to consider the contention of the Revisionist that at the stage of framing of charge, the court is required to apply its judicial mind to determine whether or not there is a ground for presuming the commission of the offence by the accused, and since the framing of charge affects a person's liberty, the need for proper consideration of the material warranting such an order cannot be over-emphasised. It is difficult to discern any element of deception in the entire case.
II.That the Learned Trial Court erred in framing the charge against the Revisionist inasmuch as it failed to appreciate the facts involved in the case and did not apply its judicial mind while framing the charge. The Learned Trial Court was required to evaluate the material on record and determine whether the ingredients of the offence charged were made out.
III.That the Learned Trial Court erred in framing the charge against the Revisionist inasmuch as it failed to appreciate the facts in the light of the decisions pronounced by the Hon'ble Supreme Court in cases where proceedings were instituted mala fide to harass the accused without substantiating the allegations, and where the Hon'ble Supreme Court quashed the FIR. The case of the Revisionist is well covered by the said case law, which is reproduced hereunder:-
“The Supreme Court in the case of State of Bihar and Anr. etc. v. Shri P.P. Sharma and Anr. etc. Mr. Mathur drew our attention to the guidelines laid down by the Supreme Court for quashing an FIR in the case of State of Haryana and Ors. v. Chaudhary Bhajan Lal and Ors.
Paragraph 107 of the said judgment itemises the guidelines as follows:-
1.Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.
2.Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code, except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3.Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4.Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, and no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5.Where the allegations made in the FIR or complaint are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6.Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which the criminal proceeding is instituted) to the institution and continuance of the proceedings, and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.
7.Where a criminal proceeding is manifestly attended with mala fides, and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to a private and personal grudge.
In the present case, guidelines Nos. 5 and 7 are material for the purpose of discharging the Revisionist.”
IV.That the Learned Trial Court erred in framing the charge against the Revisionist inasmuch as it failed to appreciate that the complaint was not spontaneous. A long-drawn complaint can only be deliberate, calculated and fabricated, and no action can be taken on the basis thereof, as has been held by the Hon'ble Supreme Court in the cases of Datar Singh v. The State of Punjab as well as Kans Raj v. State of Punjab and Ors.
V.That the Learned Trial Court erred in framing the charges inasmuch as it failed to appreciate that there is no prima facie case against the present Revisionist and that the prosecution has miserably failed to place on record any incriminating evidence against the Revisionist sufficient to rope him within the four corners of Section 302 IPC. In the facts and circumstances of this case, the Learned Trial Court ought not to have accepted the statements of the prosecution as gospel truth.
VI.That the Learned Trial Court erred in framing the charge against the Revisionist inasmuch as it failed to appreciate that the prosecution has miserably failed to place on record any evidence making out a case under Section 302 IPC against the Revisionist, and the Revisionist was entitled to discharge at the stage of framing of the charge itself.
VII.That it is respectfully submitted that there are no specific allegations against the Revisionist, and no case under Section 302 IPC is made out against him even if the allegations are taken to be true verbatim.
VIII.That, as such, in the absence of allegations constituting the essential ingredients of the offence under the aforesaid section, the accused cannot be charged with the aforesaid offence.
IX.That in the facts and circumstances of this case, there are no prospects of conviction of the Revisionist, and consequently, the Learned Trial Court erred in framing the charge against him. The Learned Trial Court failed to appreciate that the evidence collected by the prosecution is not such that, if left unrebutted, it could result in the conviction of the Revisionist, and on this count also the Revisionist was entitled to discharge. It was held in the case reported as JT 1996 (7) SC, Satish Mehra v. Delhi, that where the court is almost certain that there is no prospect of the case ending in conviction, it is advisable to truncate or snip the proceedings at the stage of Section 227 Cr.P.C.
X.That it would be against the fundamental principles of the legal system if an innocent person were implicated in a false case in this manner. Evidence can be sifted and weighed for the limited purpose of considering the matter of charge; the impugned order does not even indicate that such an approach was followed.
XI.That the outcome of the investigation casts doubt over the veracity of the complainant, and as such, the aforesaid charge framed against the Revisionist is liable to be quashed. Upon scrutiny, even the basic allegations making out a case thereunder are not contained in the FIR. In such a situation, the continuance of criminal proceedings against the Revisionist would be an abuse of the process of the court.
XII.That it is in the interest of justice that, if the allegations levelled by the complainant do not constitute any offence under Section 302 IPC, the charge is liable to be dismissed on this ground alone.
XIII.That the Learned Trial Court failed to appreciate that the case of the Revisionist is well covered by the law settled by the Hon'ble High Court of Delhi in a case titled State Versus Someshwar, that the onus is upon the prosecution to prove the charges and that, in the absence of any evidence, the charge cannot stand. Without admitting anything, the Revisionist submits that, in view of the settled law set out above, the impugned order is liable to be quashed.
XIV. That the Revisionist has no other alternative remedy except to approach this Hon'ble Court by way of the present petition.
XV.That the Ld. Trial Court committed a serious illegality in framing the charge against the Revisionist under Section 302 of IPC, as there is not even a whisper of any allegation against the Revisionist attracting the said Section 302 of IPC.
XVI. That the Ld. Trial Court failed to appreciate that the Revisionist has been named by the prosecution with mala fide intentions.
XVII. That the Ld. Trial Court committed a serious illegality in framing the charge against the Revisionist on the basis of vague and general allegations made by the prosecution against the present Revisionist.
XVIII. That the outcome of the investigation casts doubt over the veracity of the complainant, and as such the charge framed against the Revisionist, as aforesaid, is liable to be quashed.
8.That the legal position is well settled that the process of the Court cannot be utilised for any oblique purpose, and where, in the opinion of the Court, the chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may discharge the revisionists, even though the same may be at a preliminary stage.
9.That there is nothing on record to connect the present Revisionist with the commission of the alleged offences. The allegations made are blatantly absurd and inherently improbable, such that no prudent person could reach a conclusion that there are sufficient grounds for proceeding against the Revisionist.
10.That the criminal proceeding is manifestly attended with mala fides and has been instituted with an ulterior motive of wreaking vengeance upon the Revisionist and with a view to spite the Revisionist due to a private and personal grudge.
11.That where the allegations made in the First Information Report or the complaint, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, the law thereon has been laid down by the Hon'ble High Courts and the Hon'ble Apex Court. In the present case, no allegations constitute any offence under the aforesaid Sections of the Indian Penal Code.
12.That in the present case, the criminal proceedings are manifestly attended with mala fides and/or the proceedings have been maliciously instituted with an ulterior motive of wreaking vengeance upon the Revisionist and with a view to spite the Revisionist due to a private and personal grudge.
13.That the Revisionist has no other alternative remedy except to approach this Hon'ble Court under its Extraordinary Jurisdiction.
14.That the aforesaid case has been registered falling within the territorial and supervisory jurisdiction of this Hon'ble Court, and as such the present revision is maintainable in its present form.
15.That the Revisionist craves leave of this Hon'ble Court to raise such other and further grounds as may be available at the time of hearing of the present petition.
16.That the Revisionist has not filed any similar Criminal Revision Petition in the above-noted matter, either before this Hon'ble Court or before any other Court or the Hon'ble Supreme Court of India, against the order dated Date of order not challenged elsewhere (2016).2016 passed by the Ld. Trial Court.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the order dated Date of framing of charge order (2016).2016 passed by the Ld. Trial Court of Sh. Name of trial court judge, Ld. Special Judge/NDPS/ASJ/NE, Trial court and its place, whereby the Ld. Trial Court was pleased to frame the charge against the Revisionist for the offence under Section 302 of the Indian Penal Code in FIR No. FIR number (2016)/2016 under Section 302 of IPC registered at Police Station Police station in the case titled as State Vs. Accused's name in case title, and further to discharge the Revisionist from the above-noted case, in the facts and circumstances narrated hereinabove, in the interest of justice.
Pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.
It is prayed accordingly.
Place of signing of petitionREVISIONIST
THROUGH
DATED
ADVOCATES
IN THE COURT OF DISTRICT & SESSIONS JUDGE, Court's district and place
CRL. REVISION PETITION No. Revision petition number OF 2017.
IN THE MATTER OF :-
Revisionist's name: REVISIONIST
V E R S U S
Respondent's name: RESPONDENT
AFFIDAVIT
Affidavit of Mr. Deponent's name, aged about Deponent's age years, S/o Sh. Deponent's father's name, R/o Deponent's address, do hereby solemnly affirm and declare as under :-
1.That I am the Revisionist in the above-mentioned case, and as such I am conversant with the facts and circumstances of the case and am competent to swear this Affidavit.
2.That the contents of the accompanying Revision Petition under Section 397 of Cr.P.C. have been read over and explained to me in the vernacular language, and having understood the same, I state that the facts stated therein are true to the best of my knowledge and belief and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION :-
Verified at Place of verification on this Date of verification day of Month and year of verification. The contents of the above Affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.
DEPONENT