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2025 DAILYLAW 3535 (HP)

Ashish Sharma v. Ashok Sharma

2025-09-23

Rakesh Kainthla

body2025
Judgment : Rakesh Kainthla, J. The petitioner has filed the present petition under Section 528 of Bhartiya Nagrik Suraksha Sanhita (BNSS) for quashing and setting aside orders dated 27thMay 2025, passed by the learned Additional Sessions Judge (Forests), Shimla (learned Revisional Court), and 5th February 2024, passed by the learned Additional Chief Judicial  Magistrate-1  (ACJM-1),  Shimla. (Parties  shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court for the commission of offences punishable under Sections 166A, 420, 406 and 120 B of the Indian Penal Code (IPC). It was asserted that he applied for information under the Right to Information Act on 23rd August 2021 on the official email ID of accused No. 2. However, the accused failed to supply the information to the complainant despite the payment of the fee, and they violated their official duties and cheated him. They provided illegal protection to the persons involved in the illegal act. Hence, it was prayed that an appropriate action be taken against them. 3. The complainant led the preliminary evidence. 4. The learned Trial Court held that the complainant had failed to prove the ingredients of the commission of the offences alleged by him. The accused did not disobey any direction of law which prohibited them from requiring the presence of any person for investigation. In fact, they were not conducting any investigation. The ingredients of section 166A of the IPC were not attracted. It was not established that the accused made any inducement to the complainant or committed any breach of trust. The accused are the officers of the State Government and are entitled to the protection of Section 197 of the Code of Criminal Procedure (CrPC). The complainant did not obtain any prosecution sanction. Hence, the complaint was dismissed. 5. Being aggrieved and dissatisfied by the order passed by the learned Trial Court, the complainant filed a revision, which was decided by the learned Sessions Judge (Forests) (learned Revisional Court). The learned Revisional Court held that the complainant had applied for certain information under the RTI Act, which was not supplied  by  the  accused  No.  1  within  30  days. 5. Being aggrieved and dissatisfied by the order passed by the learned Trial Court, the complainant filed a revision, which was decided by the learned Sessions Judge (Forests) (learned Revisional Court). The learned Revisional Court held that the complainant had applied for certain information under the RTI Act, which was not supplied  by  the  accused  No.  1  within  30  days. The complainant failed to file a second appeal under Section 19 (3) of the RTI Act. The cognisance of any issue arising out of the order made under the RTI Act is barred under Section 23 of the RTI Act. Section 166A comes into play when a public servant, knowingly disobeys any direction of law, which prohibits him from requiring the attendance of any person for investigation into an offence or any matter or knowingly disobeys to the prejudice of any person, any direction of law regulating the manner in which he is to conduct the investigation. The accused sought the information under the RTI Act; therefore, provisions of Section 166A did not apply to the present case. The complainant was not induced to deliver any property to any person. The property was not handed over to the accused in trust. There was no evidence of any criminal conspiracy. The accused were entitled to the benefit of section 197 of the CrPC. Learned Trial Court had not committed any error. Therefore, the revision was dismissed. 6. Being aggrieved by the orders passed by the learned Courts below, the complainant has filed the present petition asserting that the learned Trial Court failed to exercise its judicial discretion on the facts and circumstances of the case. The evidence clearly indicated that the accused had violated their official duties and committed the offences punishable under Sections 166A, 406, 409, 420, and 120 B of the IPC, which are  cognizable. Therefore, it was prayed that the present petition be allowed, the orders passed by the learned Courts below be set aside, an FIR be registered against the accused and compensation of Rs. 2 crores be provided to the complainant. 7. The complainant in person submitted that the learned courts below erred in passing the impugned orders. The accused committed the offences punishable under Sections 166A, 406, 420 and 120 B of the IPC by not providing the information to the complainant under the RTI Act. 2 crores be provided to the complainant. 7. The complainant in person submitted that the learned courts below erred in passing the impugned orders. The accused committed the offences punishable under Sections 166A, 406, 420 and 120 B of the IPC by not providing the information to the complainant under the RTI Act. The revisional court wrongly held that section 23 of the RTI Act applies to the present case. There is no requirement to obtain prosecution the sanction for the registration of the FIR, and learned Courts below erred in dismissing the complaint for want of prosecuton sanction. The complaint disclosed the commission of cognizable offences, and the FIR should have been registered in the present case. Hence, he prayed that the present petition be allowed and the judgments passed by the learned Courts below be set aside. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. The present petition has been filed under Section 528 of BNSS (corresponding to Section 482 of CrPC) against an order dismissing the revision petition. It was laid down by the Hon’ble Supreme Court in Krishnan v. In Krishnaveni (1997) 4 SCC 241 , that the High Court can intervene under Section 482 of CrPC (corresponding to Section 528 of BNSS) when there is a grave miscarriage of justice or abuse of the process of the Court. It was observed: “10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person — accused/complainant — cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and, in an appropriate case, even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of a criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed, and public justice can be ensured only when the trial is conducted expeditiously. 11. In Madhu Limaye v. State of Maharashtra [ (1977) 4 SCC 551 : 1978 SCC (Cri) 10], a three-judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397(2) of the Code. This Court held that the bar on the power of revision was put to facilitate expedient disposal of the cases, but in Section 482, it is provided that nothing in the Code, which would include Section 397(2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction of the said two provisions on this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. On a harmonious construction of the said two provisions on this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government decided to prosecute the appellant for an offence under Section 500 IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognisance of the commission of the offence by the appellant was taken to trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that the court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on maintainability, this Court held that the power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code. 12. In V.C. Shukla v. State through CBI [ 1980 Supp SCC 92 : 1980 SCC (Cri) 695: (1980) 2 SCR 380 ] (SCR at p. 393) a four-judge Bench per majority had held that sub-section (3) of Section 397, however, does not limit at all the inherent powers of the High Court contained in Section 482. It merely curbs the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code. In the Rajan Kumar Machananda case [ 1990 Supp SCC 132 : 1990 SCC (Cri) 537], the case related to the release of a truck from attachment, obviously on the filing of an interlocutory application. It was contended that there was a prohibition on the revision by operation of Section 397(2) of the Code. In that context, it was held that it was not revisable under Section 482 in the exercise of inherent powers by operation of sub-section (3) of Section 397. On the facts in that case, it was held that by provisions contained in Section 397(3), the revision is not maintainable. In that context, it was held that it was not revisable under Section 482 in the exercise of inherent powers by operation of sub-section (3) of Section 397. On the facts in that case, it was held that by provisions contained in Section 397(3), the revision is not maintainable. In the Dharampal case [ (1993) 1 SCC 435 : 1993 SCC (Cri) 333], which related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. On the facts, in that case, it could be said that the learned Judges would be justified in holding that it was not revisable since it was a prohibitory interim order of attachment covered under Section 397(2) of the Code but the observations of the learned Judges that the High Court had no power under Section 482 of the Code were not correct in view of the ratio of this Court in Madhu Limaye case [ (1977) 4 SCC 551 : 1978 SCC (Cri) 10] as upheld in V.C. Shukla case [ 1980 Supp SCC 92 : 1980 SCC (Cri) 695 : (1980) 2 SCR 380 ] and also in view of our observations stated earlier. The ratio in the Deepti case [ (1995) 5 SCC 751 : 1995 SCC (Cri) 1020] is also not apposite to the facts in the present case. To the contrary, in that case, an application for discharge of the accused was filed in the Court of the Magistrate for an offence under Section 498-A IPC. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under Section 498-A, the High Court, without applying its mind, had discharged the accused. On appeal, this Court, after going through the record, noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under Section 498-A IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused, leading to the miscarriage of justice. On appeal, this Court, after going through the record, noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under Section 498-A IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused, leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate. 13. The ratio of the Simrikhia case [ (1990) 2 SCC 437 : 1990 SCC (Cri) 327] has no application to the facts in this case. Therein, on a private complaint filed under Sections 452 and 323 IPC, the Judicial Magistrate, First Class, had taken cognisance of the offence. He transferred the case for inquiry under Section 202 of the Code to the Second-Class Magistrate, who, after examining the witnesses, issued a process to the accused. The High Court, exercising the power under Section 482, dismissed the revision. But subsequently, on an application filed under Section 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case. 14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for a decision on the merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. It remitted the case to the Magistrate for a decision on the merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.” 10. This position was reiterated in Rajinder Prasad v. Bashir, (2001) 8 SCC 522 , wherein it was held: “…though the power of the High Court under Section 482 of the Code is very wide, the same must be exercised sparingly and cautiously, particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been a failure of justice or misuse of judicial mechanism or procedure, a sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, “Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code.” 11. A  similar  view  was  taken  in Kailash Verma v. Punjab State Civil Supplies Corporation, (2005) 2 SCC 571 , and it was held: “5. It  may  also  be  noticed  that  this  Court in Rajathi v. C. Ganesan [ (1999) 6 SCC 326 : 1999 SCC (Cri) 1118] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. It  may  also  be  noticed  that  this  Court in Rajathi v. C. Ganesan [ (1999) 6 SCC 326 : 1999 SCC (Cri) 1118] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision  before  the  High  Court  under Section 397(1) of the Criminal Procedure Code, as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is a serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of the law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.” 12. This position was reiterated in Shakuntala Devi v. Chamru Mahto, (2009) 3 SCC 310 : (2009) 2 SCC (Cri) 8: 2009 SCC OnLine SC 292, wherein it was observed: - “24. It is well settled that the object of the introduction of sub-section (3) in Section 397 was to prevent a second revision to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases, the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482 was not subject to the prohibition under sub- section (3) of Section 397 of the Code and was capable of being invoked in appropriate cases. Mr Sanyal's contention that there was a complete bar under Section 397(3) of the Code debarring the High  Court  from  entertaining  an  application under Section 482 thereof does not, therefore, commend itself to us. 25. On the factual aspect, the Magistrate came to a finding that the appellants were entitled to possession of the disputed plot. It is true that while making such a declaration under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same. 26. 25. On the factual aspect, the Magistrate came to a finding that the appellants were entitled to possession of the disputed plot. It is true that while making such a declaration under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same. 26. The question which is now required to be considered is whether the High Court was right in quashing the order passed by the Magistrate, which was confirmed by the Sessions Judge, on the ground that the application made by the appellants under Section 145(6) of the Code was barred firstly by limitation under Article 137 of the Limitation Act and also by virtue of Section 6 of the Specific Relief Act, 1963. 13. Delhi High Court also took a similar view in Surender Kumar Jain v. State, ILR (2012) 3 Del 99 and held: — “5. The issue regarding the filing of a petition before the High Court after having availed the first revision petition before the Court of Sessions has come up before the Supreme Court and this Court  repeatedly. While  laying  that section 397(3) Cr. P.C. laid the statutory bar of the second revision petition, the courts have held that the High Court did enjoy inherent power under section 82 (sic) Cr. P.C. as well to entertain petitions even in those cases. But that power was to be exercised sparingly and with great caution, particularly  when  the  person  approaching  the High Court has already availed a remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved by the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before the Sessions Court. It all depends not only on the facts and circumstances of each case but also on whether the impugned order brought about a situation that is an abuse of the process of the court, there was a serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court in Madhu Limave v. State of Maharashtra (1977) 4 SCC 551 , State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305 : AIR 1979 SC 87 , Rai Kapoor v. State (Delhi Administration) 1980 Cri LJ 202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation (2005) 2 SCC 571 .” 14. It is apparent from the judgments that the High Court has a limited jurisdiction and it can rectify a serious miscarriage of justice or non-compliance with a mandatory provision of law while exercising its jurisdiction under Section 528 of BNS (482 of the Cr. P.C). 15. Section 23 of the Right to Information Act reads as follows: 23. No court shall entertain any suit, application, or other proceeding in respect of any order made under this Act, and no such order shall be called in question otherwise than by way of an appeal under this Act. 16. It is apparent from the bare perusal of the Section that the jurisdiction of any Court is barred regarding any order made under the Act. It was laid down by the Kerala High Court in Prabhakara Panicker v. State of Kerala, 2010 SCC OnLine Ker 4839, 2010 Cri LJ 4117: (2010) 2 KLJ 561 that no complaint can be filed in respect of a reply given under the RTI Act. It was observed at page 567: “16. The above Section has been very widely worded and does not appear to interdict proceedings before civil courts alone. The bar against entertaining any suit, application, or other proceeding in respect of any order made under the Act, places a total embargo on any juridical proceeding against any order made under the Act except by way of an appeal as provided under Sec 19 of the Act. Going by the wide language in which the Section is couched, I am not inclined to accept the contention of the 3rd respondent   that   the   words   “other proceedings” have to be read as “ejusdem generis” so as to restrict the challenge only before a Civil Court. Going by the wide language in which the Section is couched, I am not inclined to accept the contention of the 3rd respondent   that   the   words   “other proceedings” have to be read as “ejusdem generis” so as to restrict the challenge only before a Civil Court. In the first place, the word “Court” occurring in the Section cannot be understood in a restricted sense so as to include only a civil Court. Secondly, the decisions relied on in this connection by the complainant were all rendered in respect of different statutory provisions and under different contextual settings. Hence, they cannot be imported for the purpose of construing Section 23 of the R.T.I. Act. 17. It is true that the interdict against any proceeding before a Court is only in respect of any “order” made under the Act. But then, the question is whether a “reply” given by a public information officer in response to an application (request) could be treated as an “order”. The expression “information” is defined under Sec. 2(f) of the Act reads as follows:— “Information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”. 18. Thus, the “information” furnished by a Public Information Officer in response to a “request” made to him under Section 7 of the Act can be treated as an “order”. Sec 19 of the Act, providing for appeals, uses the expressions “decision” and “order” as forming the subject matter of appeals. Hence, Annexures A to C replies can be treated as “orders”. By filing a complaint before the Criminal Court alleging the commission of offences punishable under Sections 166 and 167 I.P.C., the 3rd respondent was actually challenging Annexures A to C replies (orders) to the applications filed by him under the R.T.I. Act. Those replies (orders) are immune to challenge either before the Civil Court or before the Criminal Court except by way of an appeal under Sec 19 of the R.T.I. Act. For that reason also, I am of the view that the prosecution of the petitioners for offences punishable under Sections 166 and 167 I.P.C. was misconceived. Those replies (orders) are immune to challenge either before the Civil Court or before the Criminal Court except by way of an appeal under Sec 19 of the R.T.I. Act. For that reason also, I am of the view that the prosecution of the petitioners for offences punishable under Sections 166 and 167 I.P.C. was misconceived. It will be an abuse of the process of the Court to allow the proceedings to be continued before the Court below. Accordingly, Annexure G FIR and Annexure H final report, as also the proceedings initiated as C.C. No. 248 of 2006 before the J.F.C.M. Vaikom shall stand quashed. This M.C. is allowed as above.” 17. I respectfully agree with the enunciation of law made by the Kerala High Court. 18. This Court held in Manasi Sahay Thakur v. Madan Lal Sharma, 2018 SCC OnLine HP 3428, that the appellate authorities acting under the RTI Act are entitled to protection under the Judges Protection Act. It was observed: “17. Since a person who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment, which if confirmed by some other authority, would be definitive, would include the appellate authority under R.T.I. Act and, therefore, such a person performing his duties as the appellate authority would obviously be immune from legal action.” 19. In the present case, the complainant had sought the information under the RTI Act. He claimed that the information was not supplied to him within the time provided by the RTI Act. His complaint falls within the purview of Section 23 of the RTI Act. Hence, the learned Revisional Court had rightly held that the complaint was barred by Section 23 of the RTI Act. 20. Once it is held that the cognisance of the complaint was barred by section 23 of the RTI Act, it is not necessary to go into the question whether the offences were made out or not, because even if the offences were made out, no action could have been taken in the present Complaint as per Section 23 of the RTI Act. 21. In view of the above, no case for the exercise of the inherent jurisdiction of this court is made out. Consequently, the present petition is dismissed, so also the pending application(s) if any.