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Criminal Revision Application u/s 397,
CrPC, 1973 (LFD2f)
Nature of Grievance
Where
any person is aggrieved by the fact that Magistrate Court has passed an order
for Registration of FIR, on a patently frivolous complaint, such person may
prefer Revision Application challenging said Order.
Whoever
is aggrieved by any order (order not interlocutory in nature) passed by a
Magistrates Court, may challenge the said order by preferring a Revision Application
before Sessions Court or the High Court. The High Court or any Sessions Judge
in their Revisional powers, 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.
In the following instances, Criminal Revision Application may be
preferred:
1.
Where a person is aggrieved by
the Summons issued by the Magistrates Court on a Complaint filed before him, he
may prefer a Revision Application challenging the issuance of such Summons
mainly on the premise that there were no sufficient grounds to launch criminal
prosecution against him.
2.
Where an Application u/s 156(3)
filed before Magistrates Court for Registration of FIR and investigation, is
rejected, the aggrieved person may prefer a Revision u/s 397 of CrPC, 1973.
3.
Where any person is aggrieved
by the fact that Magistrate Court has passed an order for Registration of FIR,
on a patently frivolous complaint, such person may prefer Revision Application
challenging said Order.
4.
Where Summons / Warrant have
been issued against a person pursuant to a Criminal Complaint filed before the
Magistrates Court, the said aggrieved / accused person may prefer an
Application u/s 313(1)(a) of CrPC, 1973, before the same Magistrates Court, to
show palpable infirmity in the purported evidences relied upon by the
Complainant, on the basis of which, the Magistrates Court has issued summons /
warrant u/s 204 of CrPC, 1973. And therefore where the Application preferred
before the Trial Court is rejected, Revision may be preferred.
5.
Where the Complainant /
Applicant do not comply to the express mandate of law set out in Section 297(2)
of CrPC, 1973, which stipulates that whoever party is obliged to file an
Affidavit in any of the proceedings before the Court, the said Party is obliged
to specify in his said Affidavit, by reference to the numbered paragraphs of
his affidavit, such facts as the deponent is able to prove from his own
knowledge and such other facts he has reasonable ground to believe to be true;
and in the latter case, the deponent is obliged to state the grounds of such
belief.
In the absence of such compliance, a proceedings cannot be said to
be duly instituted, and is vulnerable to challenge to be dismissed. Affidavit
is required to be filed in Complaints filed u/s 200 of CrPC, 1973, and in other
proceedings initiated before the Magistrates Court, Sessions Court or before
the High Court.
And therefore where the Application preferred before the Trial
Court is rejected, Revision u/s 397 of CrPC, 1973, may be preferred.
6.
In Summons triable cases, where
the Magistrate has dismissed the complaint and acquitted the accused, due to
absence of complainant on the date of hearing, the aggrieved Complainant may
prefer Revision, saying that dismissal of Complaint is harsh / bad in law /
against the interest of justice, and on other grounds.
7.
(a) Where in cases “Charge” was
not formally framed in respect of an offence, and a finding, sentence or order
was passed by a Court of competent jurisdiction against the Applicant, in
respect of the said offence, and, in fact, serious prejudice has been caused to
the accused thereby; or
(b) Where there was error, omission or irregularity in the framing
of charges in respect of an offence, and a finding, sentence or order was
passed by a Court of competent jurisdiction against the Applicant, in respect
of the said offence, and, in fact, serious prejudice has been caused to the
accused thereby; or
(c) Where there was misjoinder of charges, in respect of certain
offences, and a finding, sentence or order was passed by a Court of competent
jurisdiction against the Applicant, in respect of those offences, and, in fact,
serious prejudice has been caused to the accused thereby; or
(d) Where it is alleged that there was error, omission or
irregularity in the complaint, summons, warrant, proclamation, order, judgment
or other proceedings before or during trial or in any inquiry or other
proceedings under this Code, or any error, or irregularity in any sanction for
the prosecution, and failure of justice has in fact been occasioned thereby; or
(e) Where, having regards to the facts of the case and having
regard to certain facts stands proved, no valid charge could be framed against
the Applicant herein,
the aggrieved person may prefer a Revision Application u/s 397 /
401 of CrPC, 1973, before Sessions Court / High Court.
BEFORE THE HON’BLE
SESSIONS COURT / IN THE HIGH COURT OF JUDICATURE AT __________
AT
CRIMINAL REVISION
APPLICATION NO. OF 20__
IN
…………. / / …………
(1)________________)
__________________)
__________________)
__________________)
__________________)
(2)________________)
__________________)
__________________)
__________________) ....
Applicants
(Original
Accused / Complainants)
Versus
(1)The
State of _____)
__________________)
__________________)
__________________)
__________________)
(2)________________)
__________________)
__________________)
__________________) ....
Respondents
(Respondent
No.2 being the Original Accused / Complainants)
In the matter of Revision Application u/s
397 / 401 of CrPC in respect of impugned Order dated ____ passed in _____ by Ld.
Magistrate of Court
at………….
THE HUMBLE REVISION
APPLICATION OF THE
APPLICANT ABOVENAMED
1. The brief facts of the case which are
germane to the present controversy, are –
(a)
(b)
(c)
(d)
1. Being aggrieved by the aforesaid impugned
Order / judgment dated _______ Applicant begs to prefer this Revision
Application on the grounds set out hereinafter.
2. Infirmities
in the impugned Order:
(The Applicant needs to deal with the observations made in the impugned order,
and the findings recorded in pursuant thereto, and assailing those observations
and findings, either on facts or on law or on both.
3.
Where in case it is argued
that the allegations made in the Application 156(3) do not constitute any
offence, then, with the aid of table of offence stated hereinafter, it may be
demonstrated that the acts and omissions attributed towards the present
Applicants do not constitute any offence.
4.
The Applicant spells out the ingredients of the offence
and the facts of the present case in a tabular form which will demonstrate the
Non commission / commission of the offence by the Respondents:
Please find hereinbelow the table of concerned offences. In the
each of the table, the constitution of the concerned IPC offence is
disintegrated, that is to say, each of the ingredient of an offence is spelled
out, so as to facilitate comparative objective analysis of ingredient of the
offence on one side, against the respective attribution of alleged acts and
omission against the Accused person, on the other side. Whereas any criminal
liability has an implicit degree of intimidation and suppression, this tabular
analysis will facilitate the Courts to quickly arrive at a decision, (a) if the
nature of allegations made in the Application whether constitute the offence
alleged of; and / or (b) the nature and the degree of incriminating material /
evidence exist against the Accused person.
The underlying purpose of setting out ingredient of the offence in tabular
form, is to set out in clear terms in the Application that Accused has
certainly committed the offence he is charged with; or the other way, (if the
Order of criminal prosecution is challenged) the Accused would be in a position
to assert that, no offence is made out against him, or that, there are bare
allegations, wanting in any substantive factual assertion of acts and omissions
constituting the offence, or that, there are no evidence / material being
placed on record against the accused, so as to launch criminal prosecution
against him.
Therefore, the Applicant may set out in the table, against each of
the ingredient, the relevant portion of his pleading, which would satisfy the
requirement of respective ingredient of the offence, or in the alternative, the
Applicant may mention the Para number of his Application wherein the concerned
ingredient of the offence is set out. This would facilitate the Courts to
quickly appreciate the material and evidences which are being produced by the
Applicant in support of his allegation of commission of a particular crime
against the person.
Depending upon the nature of acts and omissions attributed and
alleged against the persons accused, the applicable section may be invoked
against them and the applicable table be appended to in the Application /
Complaint.
Find hereinbelow (at the
end of the Draft) the list of offences, that is, the offences against
human body and mind; offences in relation to properties; offences by Public
Servants; offences of making false Claims in the Court of law; and offences of
making false Complaints, false evidence / statements, for which the Complaint
can be preferred.
5. GROUNDS
FOR RELIEF (as may be
applicable to the facts of the case)
a)
The allegations made in 156(3)
Application, 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 Applicant;
b)
The allegations made in 156(3) Application and other
materials, accompanying the said Application do not disclose a cognizable
offence, justifying an investigation by police;
c)
The allegations made in 156(3) Application
and the evidences furnished in support of the same, do not disclose the
commission of any offence and do not make out a case against the Applicant;
d)
The allegations made in 156(3) Application
do not constitute a cognizable offence but constitute only a non-cognizable
offence, where no investigation is permitted by a police officer without an
order of a Magistrate as contemplated under Section 155(2) of the Code;
e)
Complaint contains “bare allegation”
without attributing “acts or omission” on the part of the accused person,
towards the commission of the offences, that is to say, there is not an iota of
any incriminating material against the accused;
f)
There are unimpeachable evidence to show
that the offence could not have been committed by the accused person as
alleged, and otherwise, the accused would be needlessly harassed of the
inevitable agony of criminal trials.
g)
The allegations made in 156(3) Application
are so absurd and inherently improbable on the basis of which no prudent person
can ever reach a just conclusion that there is sufficient ground to call for
any investigation by the Police;
h)
There is an express legal bar engrafted in
the CrPC, 1973, or under _______ (under
which a criminal proceeding is instituted) to the institution and continuance
of the proceedings and/or there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the aggrieved
party;
i)
The criminal proceeding is manifestly
attended with mala fide and/or the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view to spite
them due to private and personal grudge.
j)
That the impugned Order / Judgment is
contrary to law and contrary to material facts and evidences which are on
record;
k)
That the Ld. Magistrate committed an error
of law in appreciating the material evidences on record;
l)
That the Ld. Magistrate failed to
appreciate the clinching material evidence on record…
m)
Any other ground as deem necessary in the
facts of the case, including the ground of jurisdiction of the Magistrates
Court to pass impugned order.
a) There could be many other grounds on which
the impugned order may said to be bad in law. Please refer (Link of Illegal /
perverse orders of the Court, grievance sr no.19).
6.
The main points to be emphasized upon:
7. Jurisdiction of the Court: A Para narrating facts that
this court has jurisdiction to entertain the present Application.
8. The Applicant states that no other Revision
Application, except the present one, has been filed against the impugned Order,
before this Hon’ble Court.
9. The Applicant craves leave to refer and
rely upon certain exhibited documents, and would rely upon authorities, in
support of Applicant’s case.
10. The
Applicant craves leave to add, amend, delete any of the foregoing Paras /
grounds, with the leave of this Hon’ble Court.
11. That
the present Revision Application has been filed within the prescribed period of
limitation.
12. Relief prayed for may not be refused
unless the Hon’ble Court records unfavourable findings: The
further respectful submission is – that Relief prayed for herein may not be
refused unless the Hon’ble Court records unfavourable finding against the
Applicant on such material facts /aspects which have arisen in this
Application.
a.
The Plaintiff / Petitioner / Complainant /
Appellant in this behalf rely on an Apex Court decision. The Apex Court in a
case before it [(2006) 9 SCC 222], have held that before subjecting a party to
the adverse decision, requisite adverse findings must be recorded against it.
b.
It was a case where the Defendant in a
Suit gave undertaking to the trial Court that Defendants will not interfere
with the possession of the Plaintiff’s land. The Suit was disposed of on the
basis of above undertaking. Thereafter, the Plaintiff moved Execution
Application under O.21 R.32 before the trial Court alleging that Defendants
have constructed some structure on the Suit land. The trial Court dismissed
said Execution Application. The Plaintiff challenged trial Court’s Order before
High Court. The High Court directed the Defendants to clear the encroachment
effected by them on the suit land. The Apex Court set aside the Order of the
High Court on the grounds that, the High Court, before directing the Defendants
to “clear the encroachment”, should
have recorded the findings that “Defendants had entered upon the suit
land and put up construction subsequent to the undertaking given to the trial
court”.
c.
With highest respect to the Hon’ble Court,
the respectful and humble submission is – if the Hon’ble Court are not inclined
to grant reliefs prayed for / claimed, then the Hon’ble Court have to record a
[prima facie / conclusive] finding that, having regard to the facts on record,
(a) ____________; and / or (b) ___________________; or (c) __________________.
d. In wealth of judgments, the Apex Court and
High Courts have insisted upon recording of reasons whilst arriving at findings
of facts and law. In a case (AIR 2011 SCW 5486) before it, the Apex Court have
observed to say that Judicial decisions must in principle be reasoned and the
quality of a judicial decision depends principally on the quality of its
reasoning, on law and facts.
e. Therefore, IF it is contempt of the Court,
if reasoned findings are not recorded, then it is regressive and aggravated
contempt, to not to record findings at all.
13. The
Applicant therefore, most humbly prays –
a)
To call for the records and proceedings of
this Case from the Ld. Magistrates Court;
b)
To quash and set aside the impugned Order
dated _____;
c)
Pending the hearing and final disposal of
the present Application, the operation of impugned Order be stayed;
d)
To pass such other and further Order and
to grant such further reliefs as this Hon’ble Court deems fit in the facts and
circumstances of the case.
____________
Applicant
___________
Advocate for the
Applicant
A quick look at the Procedure
1.
General check-list before filing /
Institution of Application
2.
Urgent Hearing of Application;
3.
Grant of Interim / Ad-Interim
Reliefs, if prayed for
4.
Issuance of Notice by Court to
Respondents;
5.
Service of copy of Application upon
Respondents;
6.
Reply of Respondents, if any;
7.
Oral Arguments before the Court /
Submission of Written Arguments;
8.
Order.
1. General
Check list before institution / filing of the Application
1.
Whether Exhibits are annexed as per the
averments made;
2.
Whether legible / readable copies of
Exhibits are annexed;
3.
Whether necessary averments are made in
respect of –
a)
Authorization to file Application, if applicable;
b)
Resolution is passed to file the
Application, if applicable;
c)
Jurisdiction of the Court;
d)
No other Application; if it is filed, the
particulars thereof;
4.
Endorsement as true copy to the Exhibits;
and name of the person /advocate declaring it to be true copy;
5.
Prefix Mr./ Mrs.? Not permitted
6.
Copy of Impugned Order annexed
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