IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
O R D E R
Sanjay Bhandari Vs. State of Rajasthan (1) S.B.CRIMINAL MISC.PETITION NO.289/2006 P.I.Industries Ltd. Vs. State of Rajasthan (2) S.B.CRIMINAL MISC.PETITION NO.41/2008 UNDER SECTION 482 OF
THE CRIMINAL PROCEDURE CODE, 1973.
Date of Order: Feb.05, 2009 P R E S E N T
HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Sandeep Mehta )
Mr.Suresh Kumbhat) for petitioners. Mr.V.R.Mehta, Public Prosecutor.
REPORTABLE BY THE COURT :
1. Before entering into the merits of both these Misc. Petitions filed against the order of 2
taking cognizance by the respective Magistrates, it will be appropriate to first discuss the anomaly as to whether extra-ordinary or inherent powers of this Court by way of judicial review provided for under Section 482 of the Criminal Procedure Code, 1973 in short `the Code', and also the power of superintendence over the courts of judicial magistrates for expeditious and proper disposal of cases under Section 483 of the Code, can be exercised by this Court against those orders, which have attained finality or are not interlocutory orders and the remedy for redressal of grievance to the aggrieved party is available by way of a revision petition under Section 397 of the Code.
2. Since both these Misc. Petitions filed under Section 482 of the Code relates to challenge to the order of taking cognizance and issuing process, therefore, they are being disposed-of 3
by this common order.
3. In Criminal Misc. Petition No.289/2006 filed by Sanjay Bhandari, learned Judicial Magistrate, Bhinder, Udaipur, took cognizance against him for the offences u/ss.420 read with 120B IPC on 9.1.2006 on the basis of chargesheet filed by the SHO, P.S., Bhinder, Distt.Udaipur on the ground that the accused petitioner Sanjay Bhandari obtained a hotel Rajmahal at Bhinder from the complainant side on 9.11.2000 by way of an agreement for a period of five years on rent. In the name of this hotel business, the accused petitioner purchased number of valuable cars from foreign Companies but never used those cars for the hotel and sold the same to other persons, thereby he obtained tax relief on one hand in the name of tourism business, without being performed and on the other hand, committed theft of custom duty. The rent of the 4
hotel was also not paid after some time and committed cheating. The police after due investigation, submitted chargesheet against the accused petitioner and on the basis of which the learned Magistrate has taken cognizance against the petitioner. Hence this Misc. Petition.
4. In Criminal Misc. Petition No.41/2008, a complaint under Section 29(1) of the Insecticides Act, 1968 was filed by the Assistant Director of Agriculture (Extension) & Insecticides Inspector, Hanumangarh Junction, on 17.3.2006 alleging therein that the insecticide product "Imidachloprid 17.8% SL Batch No.2003-J-01 was misbranded. The sample of the aforesaid insecticide was drawn and sent to the Laboratory, which was found to be misbranded. The learned Judicial Magistrate, Pilibanga, Distt. Hanumangarh took cognizance on the basis of this complaint as averred in para `H' of the 5
petition, though copy not filed. Petitioner Company has challenged this order of taking cognizance as well as the whole proceedings by way of this petition under Section 482 CrPC alleging therein that the second sample was not sent to the Central Insecticide Laboratory and the sanction for prosecution was obtained in a mechanical manner just before four weeks from the expiry date of sample.
5. Learned counsel appearing on behalf of the petitioners, while citing various pronouncements of the Hon'ble Supreme Court on the scope & ambit of Section 482 and 397 of the Code, argued that there is no bar in filing direct petition under Section 482 of the Code before this Court despite there being alternative remedy of filing revision petition under Section 397 CrPC, as according to them, even on merits if the allegations are looked into, no case is 6
made out at its face value. According to the learned counsel for the petitioner Sanjay Bhandari in Cr.Misc. Petition No.289/06, the case is purely of civil nature and in Cr.Misc. Petition No.41/08, the criminal proceedings are void ab initio. According to the learned counsel, if the investigation is unfair or cognizance has been taken in disregard to the established principles of law, this Court in exercise of its inherent powers, can quash the proceedings, even though the party has not preferred to choose the remedy of revision available to him. It is further argued that by virtue of sub- sections(2) and (3) of Section 397 of the Code, the revision petition is barred which is against the interlocutory order or further application by the same person respectively. In support of their contention, they have relied upon various pronouncements, which are hereinafter referred. 7
6. Before dealing with the ambit of both the Sections i.e. S.397 & S.482 of the Code, it would be worthwhile to reproduce them for the purpose of their applicability.
7. Section 397 of the Code reads as under: "397. 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 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 bail or on his own bond pending the examination of the record.
(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 8
application by the same person shall be entertained by the other of them."
8. Sections 482 & 483 of the Code reads thus: "482. Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates.- Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates."
9. A bare reading of Section 397(1) of the Code speaks that record of any proceeding of any inferior court can be examined by the High Court or the Sessions Judge with regard to its correctness, legality or propriety of any finding, 9
sentence or order, recorded or passed and also its regularity. Under sub-section (2), a bar has been imposed for exercise of such power in relation to interlocutory order passed in any appeal, inquiry, trial or other proceeding and sub-section (3) bars further revision by the same person. Thus, on a cumulative reading of these three sub-sections, it is clear that except in interlocutory orders or second revision by the same person, the correctness, legality and propriety of the impugned sentences or orders may be examined either by the High Court or by the Sessions Judge, whereas under Section 482 of the Code, while exercising inherent powers, the High Court may make such orders, as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though, on broad reading of both the Sections, it can be said that exercise of powers 10
under Sec.397 and Section 482 of the Code are by and large similar in granting relief to the aggrieved party, except that of interlocutory order and of second revision by the same party. If the order is of such a nature as contemplated under sub-sections (2) and (3) of Section 397 of the Code, then the only remedy available to the aggrieved party is by way of a petition under Section 482 of the Code within its four corners. But, if these two Sections are looked into in the light of the words used, Section 397 is confined to the extent of examining the correctness, legality or propriety of the order, whereas inherent powers can be exercised to give effect to any order given under this Code or to prevent abuse of the process of any Court or to secure the ends of justice.
10. It is noticed rather shocking that in many of the cases, aggrieved parties are trying to 11
approach the High Court in similarly situated cases either under Section 397 or under Section 482 of the Code as advised or both the remedies simultaneously through one or other party of the same case. For instance, this Court came with a situation when in a same case of framing charges on 22.8.06 against three accused u/ss.420, 467, 468 read with 120B IPC, one of the accused Niranjan Kumar preferred a Misc. Petition u/s.482 of the Code & another accused Avadh Bihari filed revision being S.B.Cr.Revision No.1025/07 under Section 397 of the Code in this Court, which, on being noticed, have been tagged together. Likewise, in Cr.Misc.Petition No.736/99, accused, who was a Pradhan of Panchayat Samiti, Dungla, on one hand, challenged FIR for its quashing u/s.482 of the Code, which was stayed by the High Court and on the other hand, challenged the order of Judicial Magistrate, who took cognizance u/s.509 12
IPC on the same facts in this Court u/s.397 of the Code by way of filing Cr.Revision No.742/1999, resulting in its dismissal in the light of Natwarlal vs. State reported in 2008(1) CrLR (Raj) 617. During pendency of this petition, the accused was acquitted and the Misc. Petition was dismissed as having become infructuous at the request of learned counsel for the petitioner. Certain more examples may be noticed of the like nature in this Court and other High Courts as well. Whether the High Court has some check to control this dual process, which can be termed as riding on two horses by the parties to the litigation or abuse of the process by the Courts itself? Answer to this lies by declaring a definite law based on logical conclusion to give proper effect to the provisions of this Code as embodied u/ss.397 and 482 of the Code. Certain judgments of the Hon'ble Apex Court are of wide importance to determine the ratio in this regard, 13
which will be discussed hereinafter.
11. Broadly speaking, Section 397 of the Code operates when the order is final because there is a bar in filing revision under Section 397(2) with regard to interlocutory order or u/s.397(3) in second revision. Against such interlocutory orders or second revisions, if they cover under any of the three contingencies, provided-for under Section 482 of the Code and as referred- to above, the aggrieved party can approach the High Court under Section 482 of the Code. The order is said to be final under this Code, when either the criminal proceedings are terminated or they are commenced. Chapter XVI of the Code deals with the commencement of proceedings and Chapter XVII onwards of the Code deals with the charge. Proceedings are said to have commenced when a complaint is not dismissed under Section 203 of the Code and the process 14
is issued against the accused under Section 204 of the Code and the trial is commenced when the charge is framed under Chapter XVII of the Code. Section 203 of the Code is limited to the extent that if there are no sufficient grounds for proceeding, the magistrate shall dismiss the complaint and after issue of the process or when the accused is brought before the court through police investigation, he is discharged, when the charge is groundless either under Section 239 of the Code or under Section 245 of the Code, from evidence, no case is made out, if unrebutted, would warrant his conviction or no sufficient grounds are made out under Section 227 of the Code. This commencement of proceeding or putting a person to face trial and discharge of the accused i.e. termination of proceedings of trial is termed as final order. Rest are said to be interlocutory orders. This view has been reiterated by the Hon'ble Supreme Court in 15
Amarnath vs. State of Haryana reported in AIR 1977 SC 2185 in the following terms: "...It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised by the High Court under sub-sections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded, was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistrate in passing an order prima facie in sheer mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and which did involve a decision regarding the rights of the appellants. If the appellants were not summoned, then they could not have faced the trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial."
12. In the present petitions, both the petitioners have challenged the order of taking cognizance i.e. initiation of proceedings being a 16
matter of moment for putting them on trial, which is not an interlocutory order but a final order, by way of these petitions filed u/s.482 CrPC. In this regard, if the law is looked into, the leading case on this subject is of the larger Bench of the Hon'ble Supreme Court in Madhu Limaye vs. State of Maharashtra reported in AIR 1978 SC 47. While discussing the scope of Section 482 and 397(2) of the Code, the Hon'ble Supreme Court laid down the following principles with regard to exercise of inherent powers by the High Court:
"8. xxx At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions: (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of 17
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
13. In the said decision, the Hon'ble Supreme Court has also gone into the scope of interlocutory order and has held that the order under challenge was not an interlocutory one so as to attract the bar of sub-section(2) of Section 397 of the Code. In this case, appellant Shri Madhu Limaye was put to trial for the offence u/s.500 IPC before the Court of Sessions Judge, Greater Bombay, in pursuance to the sanction issued by the State Govt. under Sec.199 of the Code for making defamatory press note against the then Law Minister of Maharashtra Shri A.R.Antulay. Learned Sessions Judge took cognizance and process was issued upon the said complaint. The Chief Secretary to the Govt. of Maharashtra was to be examined as a witness 18
to prove the sanction but the appellant Shri Madhu Limaye filed an application before the learned Sessions Judge to challenge the legality of the trial. The learned Sessions Judge rejected the application and framed charge u/s.500 IPC. The appellant thereafter challenged the order by way of revision in the High Court u/s.397 of the Code. The High Court dismissed the revision without entering into the merits of the case by holding that the order being interlocutory in nature, it was not maintainable in view of the provisions contained in sub-sec.(2) of Section 397 of the Code. Against this, the appeal was preferred. While discussing the scope of interlocutory order, the Hon'ble Supreme Court observed in para 13 as under:
"...On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation, it appears to us that the real intention of the 19
legislature was not to equate the expressing "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (AIR 1949 FC 1) (supra), but, yet it may not be an interlocutory order - pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-s.(2) fo S.397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Art.134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of S.397(2). It is neither advisable, nor possible to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-sec.(2) of S.397. In our opinion, it must be taken to be an order of the type falling in the middle course."
14. In para 17 of the said judgment, the Hon'ble Supreme Court lastly observed as under: 20
"Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test laid down in Kuppuswami Rao's case (AIR 1949 FC 1) and in holding that an order of the kind under consideration being not a final order must necessarily be an interlocutory one. If a complaint is dismissed under S.203 or under S.204(4) or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make S.398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the face of it? The legislature left the power to order further inquiry intact in S.398. Is it not then in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding? The answer must be given in favour of the just and reasonable view expressed by us above."
Accordingly, the Hon'ble Supreme Court allowed the appeal and remanded the case back to the High Court for disposal on merits in the light of the above judgment.
15. Apart from laying down the three principles as referred-to above with regard to exercise of inherent powers u/s.482 of the Code, the Hon'ble Supreme Court also relied upon its earlier judgment in R.P.Kapur v. The State of Punjab reported in AIR 1960 SC 866, wherein the Hon'ble Gajendragadkar J., as he then was, laid down three categories of cases, wherein inherent powers u/s.561A of the old Code corresponding to Section 482 of the Code, can be exercised. Firstly, where the institution or commencement of the criminal proceeding is against the legal bar; secondly from the bare reading of the FIR or the complaint at the face value, no offence is made out; and thirdly, there is no legal evidence in support of the case but while exercising the powers u/s.561A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. Even if the order is not final by way of 22
termination of proceedings and the continuance of proceedings in a criminal court manifestly shows that there is a legal bar against the institution or continuance of the criminal proceeding or the court exercised jurisdiction, which was not vested in it, the High Court would be justified in quashing the proceedings.
16. Thus, from the above judgment of Madhu Limaye's case (supra), it can be gathered that the order of taking cognizance and framing charge cannot be termed as an interlocutory order and the revision is maintainable against this order and when there is a specific provision for redress of the grievance of an aggrieved party, the inherent powers u/s.482 CrPC cannot be exercised.
17. In the other rulings of regular Benches cited by learned counsel for the petitioner namely (1) 23
State of Haryana v. Bhajanlal reported in AIR 1992 SC 604; (2) M/s Pepsi Foods Ltd. v. Special Judicial Magistrate reported in 1998 Cr.L.R.(SC) 18; (3) K. Ramakrishna Vs. State of Bihar, reported in 2000 (4) Crimes 113 (SC), (4) S.W.Palanitkar v. State of Bihar reported in 2001 Cr.L.R. (SC) 751; (5) N.K.Sharma v. Abhimanyu reported in (2006) 2 SCC (Cri) 135; and (6) Bholu Ram v. State of Punjab reported in (2008) 3 SCC (Cri) 710, wherein the scope and ambit of only Section 482 of the Code, has been discussed as is provided for in the Section itself, without there being any reference to Section 397 of the Code as has been discussed in the Larger Bench's decision of the Hon'ble Supreme Court in Madhu Limaye's case (supra).
18. In Adalat Prasad Vs. Rooplal Jindal & Ors., reported in 2004 Cr.L.R. (SC) 800, the Larger Bench of the Hon'ble Supreme Court while 24
confirming the order of the High Court held that recalling summons issued by the Magistrate under Section 204 of the Code will be a review of its earlier order, which is not warranted under the Code as the process is issued under Section 204 of the Code when complaint is not dismissed under Section 203 of the Code. Opposite earlier view taken by the three Judges Larger Bench in K. K. Mathew Vs. State of Kerala & Anr., reported in (1992) 1 SCC 217 was held not to be a correct law by holding that in the absence of any review power or inherent power with the subordinate courts, the remedies lie in invoking Section 482 of the Code. Issue relating to scope of Section 397 of the Code was also not involved in this cited case as well.
19. On the applicability of Section 482 of the Code despite there being alternative remedy under Section 397 of the Code, leaned counsel 25
for the petitioner has cited the latest decision of Dhariwal Tobaco Products Ltd. v. State of Maharashtra decided by the Hon'ble Supreme Court on 17.12.08 in Criminal Appeal No.2055 of 2007 (Arising out of SLP (Cri.) No.2272 of 2007). This was a case under the Prevention of Food Adulteration Rules, 1955, wherein a criminal complaint against a Company was filed, which was dealing in the manufacturing of the `Gutkha' having multiple Units. The learned Magistrate took cognizance and issued summons against which they filed a petition in the High Court u/s.482 of the Code, which was dismissed against which the appeal was filed in the Hon'ble Supreme Court, wherein, at Para 10 it has been held as under:
"10. Inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could 26
also be availed of. (See Krishnan and Anr. v. Krishnaveni and Anr. MANU/SC/0223/ 1997). In fact in Adalat Prasad v. Rooplal Jindal and Ors. MANU/SC/0688/2004 to which reference has been made by the learned Single Judge of the Bombay High Court in V.K. Jain and Ors. (supra) this Court has clearly opined that when a process is issued, the provisions of Section 482 of the Code can be resorted to."
20. In the said decision of Dhariwal's case (supra), though the scope of Section 482 of the Code has been discussed in the light of Art.227 of the Constitution but it has been observed while relying upon the decision of the Hon'ble Supreme Court in C.B.I. v. Ravi Shankar Srivastava, MANU/SC/8405/2006 that inherent powers under this Section, though wide, has to be exercised sparingly, carefully and with caution and it is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The ratio of the said case is that such powers can be exercised, when there is an abuse 27
of the process of law of any court or to secure the ends of justice. While allowing the appeal, the case was remitted back to the High Court for fresh decision on merits. In the said case also, the earlier judgment of the larger Bench of the Hon'ble Supreme Court in Madhu Limaye's case (supra) has not been referred-to.
21. Thus, taking guidelines on the law laid down by the larger Bench in Madhu Limaye's case (supra) on the basis of the doctrine of star decisis, which is a strong rule of precedent, I am fortified with the view that when the petitioners, who are aggrieved by the order of taking cognizance, have a specific provision under the Code for redressal of their grievances by way of filing revision under Section 397 of the Code, they cannot invoke the inherent powers of this Court under Section 482 CrPC because the order of taking cognizance is final one, not being an 28
interlocutory order. The revision can very well be maintained before the learned Sessions Judge as held by this Court in Natwarlal vs. State reported in 2008(1) CrLR (Raj) 617.
22. This Court could have exercised the power under Section 482 of the Code, had there been a case from the perusal of the complaint that the action of taking cognizance is without jurisdiction or barred by law, which has resulted in abuse of the process of law or is necessary to secure the ends of justice, specially when affected party for one or the other reason could not resort to the remedy available u/s.397 of the Code. The legality or correctness of the order in appreciating evidence for the purpose of taking cognizance and charge is purely a subject matter of examination under Section 397 of the Code.
23. Likewise, the duty of superintendence under 29
Section 483 of the Code is confined only to the extent of expeditious and proper disposal of cases. Duty cast upon the High Court under this Section is alike of an administrative nature, which can be read with the inherent powers under Section 482 of the Code, being a saving provision where there is no other power to interfere.
24. From the facts as stated above and the statements recorded by the police during investigation in Sanjay Bhandari's petition, petitioner took the hotel by way of agreement on rental basis but he had neither run the hotel nor licence fee was deposited and on the contrary, he purchased valuable cars from the foreign Company in the name of tourism and thereby alleged to have committed an act of cheating. These allegations cannot be termed as purely of civil nature, but is an offence u/s.420 IPC. 30
25. In Misc. Petition filed by P.I.Industries Ltd., petitioner was charged for having misbranded the insecticide product. Objections with regard to not sending of second sample or consent etc. could have been raised even during the course of trial or by way of filing revision before the learned Sessions Judge.
26. From the face value of both the complaints, neither the magistrate while taking cognizance, has abused the process of law nor the cases are of such nature, which bars his jurisdiction or which comes under the category of civil nature so as to attract the provisions of Section 482 CrPC. The appropriate remedy available to the petitioners is to approach the revisional court under Section 397 of the Code, if they so desire and in that event, the period consumed in the petition shall not come in the way for the purpose of limitation.
27. Consequently, both these Misc. Petitions are dismissed with the above observations. (DEO NARAYAN THANVI), J.
RANKAWAT JK, PS