Vijay Bishnoi, J. - (1.) THIS criminal misc. petition has been filed by the petitioners against the order dated 27.8.2014 whereby the Chief Judicial Magistrate, Banswara took cognizance against the petitioners for the offences punishable under Sections 498A, 406 and 323 I.P.C.
(2.) LEARNED Public Prosecutor has raised a preliminary objection to the effect that as per the judgment passed by this Court in Natwar Lal vs. State reported in : 2008 (1) Cr.L.R. (Raj.) page 617, this criminal misc. petition under Section 482 Cr.P.C. cannot be entertained as the petitioners have filed this criminal misc. petition directly before this Court without approaching the District and Sessions Court by way of filing revision petition while challenging the order passed by the Chief Judicial Magistrate of taking cognizance. This Court in Natwar Lal's case (supra) has held as under: - "16. In view of the above discussion, the approach taken by the Bombay High Court in Padmanabh Keshav Kamat's case (supra), which is based on the judgment of the Hon'ble Supreme Court in Pranab Kumar Mitra's case (supra) is a correct proposition of law with regard to the scope and ambit of Section 397 of the Code and on the basis of this, I have no hesitation in coming to the conclusion that when the two forums are available, then certainly it is a matter of propriety for the party to first approach the lower forum, except in rare and special circumstances. By doing this, the party getting order from Magistrate will get double remedy, firstly he will approach the court of Sessions in revision, which is a highest court of criminal trial and after examining the legality, propriety and correctness of the order of sentence, the Sessions Court comes to the conclusion that the order requires no interference under Section 397 of the Code, then the party has still second remedy to approach the High Court under Section 482 Cr.P.C. if both the courts below have passed such orders which either cannot give effect to the orders in this Code or results in abuse of the process of law or otherwise does not secure the ends of justice. Thus, the scope of Section 397 and 482 of the Code are all together different. However, these two remedies cannot be availed simultaneously or one after the other in the High Court. Party filing a petition under Section 397 before High Court cannot invoke the jurisdiction under Section 482 of the Code. Power under Section 482 of the Code is sparingly used and that too under the above referred circumstances. It will be relevant to refer the cases cited in this regard. 17. In Madhu Limaye vs. State of Maharashtra, reported in : AIR 1978 SC 47, it has been held that Section 397 sub -section (2) cannot lower the scope of Section 482 of the Code but such cases should be few and far between while exercising the jurisdiction of the High Court very sparingly. 18. In Dharampal vs. Ramshri, reported in : 1993 Cri.L.J., 1049, the Hon'ble Supreme Court held that necessary powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. In that case the High Court entertained the second revision as a petition under Section 482 of the Code. This was the case of attachment of property in a proceeding under Section 145 of the Code and on the merits, the High Court was not right in questioning the orders by taking different view. 19. In Ganesh Narayan Hegde vs. S. Bangarappa, reported in : 1995 SCC 441, it has been held that: "While it is true that availing of the remedy of the revision to the Sessions Judge under Section 397 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a Second Revisional court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the compliant is allowed to proceeded with, it would amount to abuse of process of court or that the interests of justice otherwise call for quashing of the charges." 20. From the above discussion, the contention of the learned counsel for the petitioners that after invoking jurisdiction of the Sessions Judge under Section 397 of the Code, there is bar of petition under Section 482 of the Code is devoid of force as it is always open to the High Court to correct the impugned order passed at any stage i.e. right from filing complaint or FIR till judgment in any inquiry, investigation & trial in any of the three circumstances discussed above namely, (i) when it is necessary to give effect to the order under this Court or (ii) to prevent abuse of the process of the court or (iii) to secure the ends of justice, whereas, barring interlocutory order under sub -section (2) of Section 397, the revisional court can call for the record of any inferior court to look into the correctness, legality or propriety of the order or sentence including regularity of proceedings under Section 397 of the Code. Thus, this court cannot interfere in the above revision petitions, which have been filed against the order of Magistrates without first approaching to the next higher court i.e. the court of Sessions under Section 397 of the Code as no special and exceptional reasons have been assigned for filing the revision petition directly in this court. 21. Consequently, these revision petitions are dismissed. However, the parties are at liberty to file fresh revision petition before the learned Sessions Judge and in that event the period taken during these revision petitions will not come in the way for the purpose of limitation."
(3.) IN view of the aforesaid judgment, this criminal misc. petition is dismissed while granting liberty to the petitioners to file revision petition before the District & Sessions Court. The stay petition is also dismissed.;