Mahesh Bhagwati - (1.) 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 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 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 allopathic drugs and medicines. He obtained a licence to run the business from the State Government as also and 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 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 the relevant documents and drugs, illegally detained his wife Smt. Jyoti Gupta, abused his official position, instituted a false criminal proceeding against him and 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, Sections 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 offence, 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 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." 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. Heard learned counsel for the parties and carefully perused the relevant material on record. Mr. Pankanj Gupta, the learned counsel for the revisionist canvassed that undeniably and undisputably 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 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 Chippa. 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 manner as if the case was being finally decided. At the state of taking cognizance of offence, 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, Bhartpur 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 Bhartpur. He further canvassed that the protection of prosecution sanction under Section 197 Cr.P.C. was not available to accused respondent No.2 as the 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 complainant 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 6th January, 2009 passed by the Chief Judicial Magistrate, Bhartpur. He has cited umpteen pronouncements of Hon'ble Apex Court and this Court in support of his arguments.
(3.) E Conta 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. Learned counsel Mr. S.K. Gupta further defended the impugned order dated 3rd July, 2009 rendered by the Additional Sessions Judge No.2 Bhartpur had stated the same to be just and proper based on cogent reasoning. He further contended that so far as the inspection or 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 personal animosity could be ascribed to him. Learned Additional Session Judge No.2, Bharatpur rightly observed that the protection of prosecution sanction under Section 197 of CrPC 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 CrPC 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. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the first criminal revision petition No. 12/ 2009 was preferred against the impugned order dated 6th January, 2009 rendered by the Chief Judicial Magistrate, Bhartpur, 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. ;