Kamlesh Sankhala vs State Of Rajasthan (2025:Rj-Jd:2615) on 15 January, 2025

Rajasthan High Court – Jodhpur

Kamlesh Sankhala vs State Of Rajasthan (2025:Rj-Jd:2615) on 15 January, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:2615]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                    S.B. Criminal Misc(Pet.) No. 261/2025

Kamlesh Sankhala S/o Sh. Amar Singh, Aged About 34 Years, R/
o Near Sankhala Electric Shop, Maansagar Mahamandir, Jodhpur.
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through PP
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Muktesh Maheshwari
                                   Mr. Yuvraj Singh Mertia
For Respondent(s)            :     Mr. N.S. Chandawat, Dy.G.A.



                HON'BLE MR. JUSTICE FARJAND ALI

Order

Reportable
15/01/2025

1. The instant Criminal Miscellaneous Petition has been filed

under Section 482 of the Criminal Procedure Code,1973,

challenging the impugned order dated 01.08.2024, passed

by the learned Sessions Judge, Chittorgarh, in Criminal

Revision Petition No. 64/2024 (C.I.S. No. 66/2024). The said

order dismissed the Criminal Revision Petition filed by the

petitioner against the order dated 29.08.2023, passed by the

learned Chief Judicial Magistrate, District Chittorgarh, in Case

No. 1749/2023. The petitioner contends that the learned

Trial Court has wrongfully taken cognizance against the

petitioners for offences under Sections 420 and 120B of the

IPC, Section 66D of the IT Act, and Sections 3/4 of the RPO,

1949.

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2. The facts leading to the filing of this petition are that on

12.06.2019, during a patrol at approximately 5:30 PM,

Station House Officer Shailendra Singh and his team

received information about an individual standing near a cart

in front of the Panchayat Samiti, engaged in online gambling

through his mobile phone. Acting on this tip, Constable

Pushpendra Singh, in plain clothes, approached the

individual, later identified as Petitioner No. 1, and transacted

for a game recharge using a marked 500 rupee note.

Subsequently, the petitioner was apprehended, and upon

search, several incriminating items, including mobile phones,

Ids, passwords, and a significant amount of cash, were

seized. An FIR No. 256/19 was registered at the Kotwali

Police Station, Chittorgarh. Following the investigation, a

charge sheet was filed, and the Trial Court took cognizance

on 29.08.2023. Aggrieved by this, the petitioners filed a

Revision Petition under Section 438 of Bharatiya Nagarik

Surakasha Sanhita ,2023(herein after referred as”BNSS”),

registered as No. 64/2024 (C.I.S. No. 66/2024), which was

dismissed by the learned Revision Court on technical grounds

of being time-barred, vide order dated 01.08.2024.

3. The Petitioner contended that the Trial Court, in taking

cognizance, and subsequently, the Revision Court, in

dismissing the revision petition on time-barred grounds, had

both erred. The Petitioner asserted that no illegal gambling

had occurred, and that the police action had been based on a

misinterpretation of the nature of the mobile game, which

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was merely a form of entertainment. Furthermore, the

Petitioner argued that the Revision Court had erred in

prioritizing procedural technicalities over the merits of the

case, particularly given the justification provided for the

delay in filing the revision petition. Finally, the Petitioner

invoked the principle of presumption of innocence,

emphasizing that an innocent individual should not be

subjected to punishment.

4. Heard both the counsels present for the parties and gone

through the materials available on record.

5. Before delving into the merits of the present petition, it is

pertinent to discuss the legal framework under which the

revisional jurisdiction of the Court is invoked. Section 438 of

the BNSS, 2023 (corresponding to section 397 Cr.P.C.),

outlines the powers of the High Court and Sessions Court to

call for records and revise orders passed by subordinate

Courts. This provision plays a crucial role in ensuring that

justice is not only done but is also seen to be done by

correcting any legal or procedural errors that may have

occurred in the lower Courts. To fully appreciate the scope

and application of this Section, it is essential to reproduce it

here for reference.

438.Calling for records to exercise powers of revision.

(1)The High Court or any Sessions Judge 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

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the regularity of any proceedings of such inferior Court,
and may, when calling for such record, direct that the
execution of any sentence or order be suspended, and if
the accused is in confinement, that he be released on
his own bond or bail bond pending the examination of
the record.

Explanation. – All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the
Sessions Judge for the purposes of this sub-section and
of Section 439.

(2)The powers of revision conferred by sub-section (1) shall
not be exercised in relation to any interlocutory order
passed in any appeal, inquiry, trial or other proceeding.
(3)If an application under this section has been made by
any person either to the High Court or to the Sessions
Judge, no further application by the same person shall
be entertained by the other of them.

6. The statutory power conferred upon the High Court and

Session Court under Section 438 BNSS serves the purpose of

examining the legality, correctness, and propriety of orders

passed by inferior Courts. This ensures that criminal

procedures are strictly adhered to according to the law,

preventing any deviation from legal mandates. Legality

entails the correct application and interpretation of legal

provisions. It is crucial that Courts do not misunderstand or

ignore the law, as any misinterpretation or wrongful

application can lead to significant procedural errors.

Correctness involves the proper application of facts in

accordance with the legal provisions. It is essential that

factual determinations align with the governing laws to

ensure accurate legal outcomes. Propriety addresses

situations where, despite the correct application of law and

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facts, the resulting outcome is flawed. This could occur when

the exercise of legal power is technically correct, and the

facts support the decision, but the overall outcome is

deemed improper, unfair, or unjust in the broader sense of

justice.

For example, if a husband earning ₹100,000 per month is

ordered to pay ₹2,000 as maintenance to his wife, the legal

power (legality) is exercised, and the wife’s eligibility

(correctness) is considered, but the maintenance amount is

not proper (propriety) given the husband’s income

The Court’s power in this context is supervisory and

monitoring in nature. Its objective is to ensure that

proceedings and orders adhere to the law and principles of

justice, leading to the fair disposal of cases. Courts are

established to uphold these objectives, ensuring justice is

served through lawful processes. The mode of invoking this

power can be through applications by parties, or when the

Court is made aware of potential errors through publications,

complaints, or letters. Upon receiving such information, the

Court must satisfy itself regarding the legality, correctness,

and propriety of the order in question. At this point, the

Court can also exercise suo motu power to achieve the

ultimate objective of justice.

7. In the instant case, the learned Sessions Judge, by

abdicating his responsibility to delve into the merits of the

petitioner’s contentions, has effectively rendered the

provisions of Section 438 BNSS nugatory. The High Court, as

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the ultimate guardian of justice, cannot countenance such a

cavalier approach. It is incumbent upon the Court to ensure

that the principles of justice are upheld and that the rights of

the citizens are protected.

8. The language of Section 438 of the BNSS, 2023,

unequivocally employs the term “may,” thereby vesting a

discretionary power in the Sessions Judge or the High Court

to call for and examine the records of any proceeding before

an inferior criminal Court within their jurisdiction. This

discretionary authority, often termed as revisional

jurisdiction, is exercised to satisfy the Court as to the

correctness, legality, or propriety of any finding, sentence, or

order passed by such inferior Court. It is imperative to

understand that the usage of the term “may” signifies that

this power is not obligatory but is to be exercised judiciously

as per the requirements of justice. The discretionary nature

of this power does not diminish its importance; rather, it

underscores the need for a careful and judicious approach in

its exercise.

9. The revisional jurisdiction is supervisory or monitoring in

nature, enabling the higher judiciary to ensure that the

subordinate Courts act within the bounds of law and justice.

The essence of this provision is to prevent a miscarriage of

justice by rectifying errors, irregularities, or illegalities that

might have crept into the judicial process at the subordinate

level. This supervisory role is pivotal, as it provides a

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mechanism for correcting judicial missteps, thus upholding

the integrity of the judicial process.

10. In exercising this power, the Court is guided by the

principle of ubi jus ibi remedium – where there is a right,

there must be a remedy. This maxim underscores the Court’s

duty to provide a remedy whenever there is a breach of legal

rights. The revisional power under Section 438 BNSS

embodies this principle, ensuring that justice is not thwarted

by technicalities or procedural lapses.

11. The Court’s discretion to invoke this power is absolute

in the sense that it can be exercised at any time when it

deems necessary to ensure that the ends of justice are met.

However, this discretion must be exercised in a manner that

is just, equitable, and in accordance with the principles of

natural justice. The power to call for records and revise

orders is a potent tool in the hands of the judiciary to

maintain the sanctity of legal proceedings and to prevent the

abuse of process.

12. Furthermore, while the provision grants discretion, it

implicitly demands a thorough application of judicial mind to

the facts and circumstances of each case. It is not a

mechanical or routine exercise but one that requires a

detailed and nuanced understanding of the case to ascertain

whether the subordinate Court’s order stands up to the

scrutiny of legality, correctness, and propriety.

13. The judicial discretion conferred by Section 438 BNSS

thus serves a dual purpose: it acts as a safeguard against

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judicial errors and as a corrective measure to uphold the rule

of law. The revisional Court, in exercising this discretion,

must therefore strike a delicate balance between correcting

errors and respecting the finality of judicial proceedings,

thereby ensuring that justice is served in its truest sense.

The discretionary power under Section 438 BNSS is an

indispensable aspect of the criminal justice system, enabling

higher Courts to oversee and rectify judicial processes,

thereby reinforcing the faith of the public in the legal system.

The term “may” as used in the provision signifies a

considered and judicious application of this power,

underscoring the judiciary’s role as the sentinel of justice.

14. A grave lacuna is evident in the impugned order. The

learned Sessions Judge, instead of delving into the merits of

the revision petition and adjudicating the weighty

contentions raised by the petitioner, inexplicably confined his

scrutiny to the narrow confines of the delay condonation

application. This approach, characterized by an undue

emphasis on procedural technicalities, constitutes a grave

dereliction of the judicial duty. “Nulla poena sine lege” – no

punishment without law – demands that the Courts

meticulously examine the substantive issues before arriving

at any conclusion. The learned Sessions Judge, by

prematurely dismissing the revision petition on a procedural

ground, effectively denied the petitioner a meaningful

opportunity to challenge the legality and propriety of the

impugned order of cognizance. This approach is not only

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antithetical to the principles of natural justice but also

contravenes the very essence of the judicial process, which

mandates a thorough and impartial consideration of all

relevant aspects of the case.

15. When a party approaches the Court belatedly, the Court

must determine whether the delay justifies allowing a wrong

order to stand. The mere passage of time should not permit

a wrongful order to remain uncorrected. The Court has the

responsibility to ensure that justice is not compromised due

to procedural delays. While the Court may impose costs or

monetary penalties on parties for the inconvenience caused

by delays, it must ensure that a wrong order is not

perpetuated merely because of the delay in challenging it.

The fundamental duty of the Court is to correct such errors

to uphold the integrity of the judicial process.

16. To address the issue of delay in filing the revision

petition, it is pertinent to reproduce Section 5 of the

Limitation Act, 1963, which governs the extension of the

prescribed period in certain cases by allowing condonation of

delay upon sufficient cause being shown.

Section 5 of the Limitation Act, 1963, provides the legal

framework for extending the prescribed period for any

appeal or application, barring suits, if the applicant satisfies

the Court that there was sufficient cause for the delay. The

text of Section 5 is reproduced below for reference:

5. Extension of prescribed period in certain cases.–

Any appeal or any application, other than an application under
any of the provisions of Order XXI of the Code of Civil Procedure,

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1908 (5 of 1908), may be admitted after the prescribed period if
the appellant or the applicant satisfies the court that he had
sufficient cause for not preferring the appeal or making the
application within such period.

Explanation.–The fact that the appellant or the applicant was
misled by any order, practice or judgment of the High Court in
ascertaining or computing the prescribed period may be sufficient
cause within the meaning of this section.

This provision empowers the Courts to condone delays in the

interest of justice, ensuring that technical lapses do not

impede the administration of justice. In the present case, the

petitioner’s justification for the delay should have been

meticulously examined under this provision.

In this context, it is pertinent to refer to the principles laid

down by the Hon’ble Supreme Court in Collector, Land

Acquisition, Anantnag & Ors. Vs. Mst. Katiji & Ors .,

Reported in 1987 AIR 1353 wherein the Court emphasized

a liberal approach in condonation of delay cases, considering

the broader interests of justice. The relevant paragraphs of

which are reproduced herein below –

The legislature has conferred the power to condone delay by
enacting Section 51 of the Indian Limitation Act of 1963 in order
to enable the Courts to do substantial justice to parties by
disposing of matters on ‘merits’. The expression “sufficient cause”

employed by the legislature is adequately elastic to enable the
courts to apply the law in a meaningful manner which subserves
the ends of justice–that being the life-purpose for the existence
of the institution of Courts. It is common knowledge that this
Court has been making a justifiably liberal approach in matters
instituted in this Court. But the message does not appear to have
percolated down to all the other Courts in the hierarchy. And such
a liberal approach is adopted on principle as it is realized that:-

“Any appeal or any application, other than an application under
any of the provisions of Order XXI of the Code of Civil Procedure,
1908. May be admitted after the prescribed

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Period if the appellant or the applicant satisfies the Court that he
had sufficient cause for not preferring the appeal or making the
application within such period.”

1. Ordinarily a litigant does not stand to benefit by lodging an
appeal late.

2. Refusing to condone delay can result in a meritorious matter
being thrown out at the very threshold and cause of justice being
defeated. As against this when delay is condoned the highest that
can happen is that a cause would be decided on merits after
hearing the parties.

3. “Every day’s delay must be explained”

Does not mean that a pedantic approach should be made. Why
not every hour’s delay, every second’s delay? The doctrine must
be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical Considerations are pitted
against each other, cause of substantial justice deserves to be
preferred for the other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay.

5. There is no presumption that delay Is occasioned deliberately,
or on account of culpable negligence, or on account of mala fides.
A litigant does not stand to benefit by resorting to delay. In fact
he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of
its power to legalize injustice on technical grounds but because it
is capable of removing injustice and is expected to do so

17. It is a well-established legal principle that the primary

duty of the Courts is to adjudicate matters on their merits,

ensuring justice is rendered substantively rather than being

impeded by procedural technicalities. The Latin maxim fiat

justitia ruat caelum — let justice be done though the

heavens fall — underscores the judiciary’s commitment to

substantive justice. In the instant case, the learned Sessions

Judge’s preoccupation with the procedural aspect of delay

condonation, to the exclusion of a detailed examination of

the substantive issues raised, is a regrettable oversight. The

judicial process mandates that when the legality,

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correctness, and propriety of an order taking cognizance are

under challenge, it is incumbent upon the Court to conduct a

thorough examination of the facts and circumstances

surrounding the case. A perfunctory dismissal on technical

grounds, without addressing the substantive merits, not only

undermines the purpose of judicial review but also negates

the core judicial function of ensuring justice. The approach of

the learned Sessions Judge, focusing narrowly on procedural

delay without due regard for the substantive issues,

contravenes the principles of natural justice and cannot be

countenanced. It is the considered view of this Court that a

pragmatic and judicious approach should have been adopted,

one that balances the procedural requirements with the

overarching need to deliver substantive justice. The

dismissal of the revision petition on procedural grounds,

without a detailed and meticulous examination of the

contentions raised, constitutes a miscarriage of justice.

Accordingly, the decision of the learned Sessions Judge,

which overlooks the imperative of substantive adjudication,

is not sustainable in law and warrants judicial intervention to

rectify the oversight.

18. The Sessions Judge’s order demonstrates a

fundamental flaw in its approach. By narrowly focusing on

the procedural aspect of delay condonation and summarily

dismissing the revision petition, the judge failed to address

the core issue of whether the Trial Court had erred in taking

cognizance of the offence. This approach is contrary to the

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principles of natural justice, which require a fair hearing and

a thorough examination of all relevant issues. The judge’s

decision to prioritize technicalities over substantive justice

not only undermines the petitioner’s right to a fair trial but

also casts doubt on the integrity of the judicial process. It is

imperative for Courts to strike a balance between procedural

requirements and the substantive rights of the parties

involved. In this case, the Sessions Judge’s decision to

dismiss the revision petition on the sole ground of delay,

without addressing the merits of the petitioner’s contentions,

amounts to a miscarriage of justice.

19. The Limitation Act, 1963 serves a fundamental purpose

of instilling discipline in the judicial process, ensuring that

grievances are raised within a reasonable time frame to

maintain the balance of justice. However, the objective of

this statutory limitation is not to create an insurmountable

barrier for the aggrieved parties but rather to ensure that

cases are brought forth while evidence is still fresh and

justice can be rendered effectively. It is imperative to adopt

a liberal approach when considering applications for

condonation of delay, especially in circumstances where

procedural lapses are adequately explained and justified. The

judiciary must refrain from a pedantic or overly technical

application of limitation laws, as emphasized by the maxim

actus curiae neminem gravabit, which asserts that an act of

the Court shall prejudice no one. The Courts are thus

enjoined to adopt a pragmatic approach, weighing the

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reasons for the delay against the interests of justice, rather

than dismissing matters solely on technical grounds. It is a

well-established judicial principle that procedural rules

should act as a handmaid of justice, not as its mistress.

Therefore, it is incumbent upon the Courts to prioritize the

merits of the case over procedural technicalities, thereby

safeguarding the right to a fair hearing and preventing a

miscarriage of justice.

20. The learned Sessions Judge’s approach, characterized

by an undue emphasis on procedural technicalities and a

lamentable disregard for the substantive issues, cannot be

condoned. This Court is of the view that the impugned order

suffers from a fundamental flaw and must be set aside. The

matter shall be remanded back to the learned Sessions

Judge with specific directions to address the merits of the

petitioner’s contentions and adjudicate the revision petition

in accordance with law and the principles of justice.

21. In light of the foregoing discussion, it is concluded that

the High Court or the Court of Session may exercise its

revisional powers, suo motu also ,under Section 438 of the

BNSS. This supervisory or monitoring power is exercised to

ensure that justice is administered fairly and in accordance

with the law. The exercise of this power is not contingent

solely upon an application by a party; the Court is also

empowered to act suo motu by calling for the record to

examine the legality, correctness, or propriety of orders

passed by inferior Courts. Furthermore, the Court may

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exercise its revisional power suo motu even in cases where a

party initially applied but delayed in challenging the order. In

such instances, the Court, to rectify any erroneous or unjust

order, may invoke its suo motu revisional jurisdiction to

correct the defect and uphold the principles of justice.

22. Accordingly, the instant Criminal Misc. Petition is

allowed.

23. The order dated 01.08.2024 passed by the learned

Sessions Judge, Chittorgarh in Criminal Revision Petition No.

64/2024 is hereby quashed and set aside. The matter is

remanded back to learned Session Judge to restore the

Criminal Revision Petition No.64/2024 (66/2024) to its

original number. Whereafter notice be issued to the other

parties and only after giving adequate opportunity of hearing

to the parties, the petition shall be heard and considered

afresh for the purpose of examining the legality ,correctness

and propriety.

24. The stay petition stands disposed of.

(FARJAND ALI),J
67-Ashutosh/-

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