Uttarakhand High Court
Shri Raghav Chaudhary vs State Of Uttarakhand And Another on 16 July, 2025
2025:UHC:6768
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
CRIMINAL MISC. APPLICATION No. 245 of 2024
Shri Raghav Chaudhary ......Applicant
Versus
State of Uttarakhand and Another .....Respondents
Presence:
Ms. Divya Jain, learned counsel for the Applicant.
Mr. N.S. Kanyal, learned A.G.A. for State.
Mr. Akshay Pardhan, learned counsel for the Respondent no. 2
Hon'ble Ashish Naithani, J.
1. The present Criminal Miscellaneous Application under Section
528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has been
filed by the Applicant, seeking quashing of the order dated 26.07.2024
passed by the learned Additional Sessions Judge-I, Dehradun in
Criminal Revision No. 245 of 2019. By the said impugned order, the
Revisional Court set aside the order dated 02.08.2019 passed by the
learned Chief Judicial Magistrate, Dehradun in Misc. Criminal Case
No. 655 of 2019, and remanded the matter to the Magistrate with a
direction to pass an order afresh "in light of the observations" made in
the revisional judgment.
2. The short question that arises for consideration is whether such a
direction issued by the Revisional Court, which virtually commands the
subordinate Magistrate to take a particular view, is legally sustainable
within the contours of revisional jurisdiction conferred under Section
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Criminal Misc. Application No. 245 of 2024-----Raghav Chaudhary vs State of Uttarakhand & Another
Ashish Naithani J.
2025:UHC:6768
397 of the Code of Criminal Procedure, 1973 (now Section 484 of
BNSS).
3. The brief facts leading to the present application are that
Respondent No. 2, an NRI presently residing in Kenya, entered into an
Allotment Agreement dated 26.02.2016 with M/s Vyasa Infra
Developers (of which the Applicant is a partner) for purchase of a 3
BHK flat in a proposed housing project "Symphony" at Dehradun for a
total consideration of Rs. 1.30 crore. It is alleged that despite receiving
approximately Rs. 1.27 crore, the builder failed to complete the
construction or execute the sale deed.
4. Upon a title search, it was discovered that the property had been
sold by the builder to a third party without disclosing the prior
allotment. Respondent No. 2 lodged a police complaint, and, upon
inaction, filed an application under Section 156(3) CrPC before the
learned Chief Judicial Magistrate, Dehradun, seeking direction for
registration of FIR against the Applicant and others for offences under
Sections 420, 467, 468, 471, 406, and 120B IPC.
5. The Magistrate, vide a detailed order dated 02.08.2019, rejected
the application holding that the dispute was essentially civil in nature,
arising from alleged breach of contractual obligations, and no prima
facie case of cognizable offence was made out.
6. The Complainant assailed the rejection of the application under
Section 156(3) CrPC by the Magistrate, as recorded in the order dated
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Criminal Misc. Application No. 245 of 2024-----Raghav Chaudhary vs State of Uttarakhand & Another
Ashish Naithani J.
2025:UHC:6768
02.08.2019, by filing Criminal Revision No. 245 of 2019. The
Revisional Court, vide order dated 26.07.2024, allowed the revision
and remanded the matter to the Magistrate with a direction to
reconsider the application and to pass a fresh order in accordance with
law, keeping in view the observations made in the body of the
revisional judgment.
7. The contention of the Applicant before this Court is that the
Revisional Court, while purporting to remand the matter, has, in
substance, prejudged the issue and left no discretion to the Magistrate.
It is argued that such an order is not a lawful remand but a disguised
direction to allow the Section 156(3) application.
8. Learned Counsel for the Applicant has placed reliance on the
decisions of the Hon'ble Supreme Court in Sanjay Kumar Rai v. State
of U.P., (2021) 9 SCC 762, and Amar Nath v. State of Haryana, (1977)
4 SCC 137, to contend that the revisional jurisdiction does not permit
substitution of the judicial discretion exercised by the Magistrate with
that of the Sessions Court.
9. Per contra, Respondent No. 2 supports the impugned order,
contending that the Magistrate's dismissal was mechanical and failed to
appreciate the fraudulent conduct of the Applicant. It is further
submitted that sufficient material was placed on record to disclose
cognizable offences which warranted investigation.
10. Heard learned Counsel for the Parties and perused the records.
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11. The foundational principle in the exercise of revisional
jurisdiction is that the revisional court does not act as an appellate
authority. It does not re-appreciate evidence but intervenes only where
there is glaring illegality, procedural irregularity, or patent perversity.
12. In the present case, the learned Magistrate, after perusal of the
complaint, annexures, and police report, held that the dispute was civil
in nature and did not disclose the commission of any cognizable
offence. This is a plausible view. Whether or not another view is
possible is not the test in revision.
13. The Revisional Court, while disagreeing with the Magistrate,
ought to have confined itself to identifying any patent illegality or
failure to apply the judicial mind. Instead, it issued a direction to pass
an order "in light of the observations" in its judgment, which amounts
to a binding instruction.
14. The law is settled that when a higher court remands a matter to a
subordinate court, the latter must have the freedom to assess the case
independently. Any direction that constrains or predetermines the
outcome amounts to an excess of jurisdiction.
15. The Hon'ble Supreme Court in SanjaysinhRamrao Chavan v.
Dattatray Gulabrao Phalke & Ors., 2015 AIR SCW 784, held that an
order passed by the Magistrate can be interfered with in revisional
jurisdiction only if it is perverse or suffers from glaring illegalities.
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Criminal Misc. Application No. 245 of 2024-----Raghav Chaudhary vs State of Uttarakhand & Another
Ashish Naithani J.
2025:UHC:6768
16. The Court therein held that revisional courts are not supposed to
act as appellate courts. They only have to satisfy themselves regarding
the correctness, legality and propriety of the findings of the lower court
which are under challenge.
17. Under the revisional powers, the courts are empowered to call for
records of any inferior or subordinate criminal court to test the
correctness, legality or propriety of any proceeding of such inferior or
subordinate criminal court.
18. The powers of revision are limited and cannot be invoked lightly.
The object behind exercising the revisional powers is to set right an
error or illegality in the orders passed by the lower courts.
19. The revisional powers under Section 397 r/w 401 of the Cr.P.C.
are discretionary, and the same shall be exercised to ensure that justice
is done and the lower courts do not exceed and abuse the powers vested
in them.
20. Interference with the orders of lower courts is warranted only if
findings in such orders are illegal, improper, perverse, contrary to the
material on record or are grossly erroneous.
21. Further, the revisional power may be exercised only to set right a
patent defect to an error of law or jurisdiction.
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Criminal Misc. Application No. 245 of 2024-----Raghav Chaudhary vs State of Uttarakhand & Another
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22. The impugned revisional order in the present case has, in effect,
compelled the Magistrate to act in a predetermined manner. Such
judicial direction, couched as a remand, is antithetical to the doctrine of
independent judicial application of mind.
23. While this Court does not express any opinion on whether the
application under Section 156(3) CrPC deserves to be allowed or not,
the Magistrate cannot be asked to mechanically implement another
court's opinion unless the statute so requires.
24. Consequently, this Court is of the considered view that the order
dated 26.07.2024 passed by the learned Additional Sessions Judge-I,
Dehradun, in Criminal Revision No. 245 of 2019 is legally
unsustainable, insofar as it directs the Magistrate to pass an order in the
light of the Revisional Court's observations.
25. It is clarified that this Court has not expressed any opinion on the
merits of the complaint, and the learned Magistrate shall be free to
decide the matter in accordance with law and judicial conscience.
ORDER
The impugned order dated 26.07.2024 passed by the learned
Additional Sessions Judge-I, Dehradun, in Criminal Revision No. 245
of 2019 is hereby quashed and set aside. The matter is remitted to the
learned Chief Judicial Magistrate, Dehradun, who shall reconsider the
application under Section 156(3) CrPC independently, without being
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Criminal Misc. Application No. 245 of 2024—–Raghav Chaudhary vs State of Uttarakhand & Another
Ashish Naithani J.
2025:UHC:6768
influenced by any of the observations or directions contained in the said
revisional order.
The Criminal Miscellaneous Application stands allowed
accordingly.
Let a copy of this order be sent to the concerned court forthwith.
Ashish Naithani, J.
16.07.2025
Arti
ARTI SINGH Digitally signed by ARTI SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbee418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4A7B2E734BE2521F982, cn=ARTI SINGH
Date: 2025.08.01 11:51:16 +05’30’
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Criminal Misc. Application No. 245 of 2024—–Raghav Chaudhary vs State of Uttarakhand & Another
Ashish Naithani J.