Arvindbhai V. Patel vs State of Gujarat and Another

B.J. Shethna, J.—This petition is filed by the petitioner as a special criminal application. Though it is not stated that it is filed under article 227 of the Constitution of India, it goes without saying that the petition could only be under article 227 of the Constitution of India. In this petition the petitioner has prayed that the order passed by the learned Chief Judicial Magistrate, Vadodara below, exhibit 40, in Criminal Case No. 1327 of 1989 on June 30, 1992, and the order passed by the Additional Sessions Judge on September 1, 1992, in Criminal Revision Application No. 115 of 1992, rejecting the said revision application be quashed and set aside and the further proceedings of Criminal Case No. 1327 of 1989, pending before the court of learned Chief Judicial Magistrate be stayed in view of the provisions of section 391(6) of the Companies Act.

Once the revision application is rejected, a second revision application is not maintainable as provided u/s 399(3) of the Code of Criminal Procedure. The decision of the learned Sessions Judge in such revision application would become final. The impugned order passed by the learned Chief Judicial Magistrate below, exhibit 40, in Criminal Case No. 1327 of 1989, is confirmed by the learned Additional Sessions Judge, Vadodara, in Criminal Revision Application No. 115 of 1992. Therefore, in my view, this petition which is titled as a special criminal application would not be maintainable in the eye of law.

That apart, the request made in this petition as well as before the Sessions Court in the revision application to stay further proceedings was rejected by the learned Additional Sessions Judge. That being an interlocutory order, no revision application would lie as provided u/s 397(2) of the Criminal Procedure Code, and, therefore, also this petition is required to the dismissed. That apart, this court has, in an earlier petition ordered the learned Magistrate to proceed with the case against the accused immediately and accordingly to that order the learned Magistrate has to continue the proceedings. Therefore, on the merits also there is no case in favour of the petitioner.

Mr. Shah, the learned advocate appearing on behalf of the petitioner, has strongly relied upon the judgment of this court in In Re: Divya Vasundhara Financiers Pvt. Ltd., and submitted that this court has held that the civil as well as criminal proceedings should be stayed where the provisions of section 391(6) of the Companies Act are attracted.

First of all, the aforesaid judgment will not be applicable in the facts of this case. The petitioner is not a director but he is a manager. In the aforesaid case, this court was dealing with the case of the directors in a company application which was filed under the provisions of the Companies Act dealing with section 391(6) of the said Act. That apart, in para 11 of that very judgment this court has held that "it goes without saying that if individual directors are accused of an offence committed in their individual capacity, the matter would stand on a different footing." This court has not held that the criminal proceedings must be stayed, it has held that the proceedings can be stayed. It is not an universal rule that in all the cases where section 391(6) is applied, they must be stayed. In fact, as laid down by the Supreme Court in a number of decisions, the criminal proceedings must be given preference and ordinarily they should not be stayed.

In fact, section 483 of the Code of Criminal Procedure, provides that it is the duty of the High Court to exercise superintendence over Courts of Judicial Magistrates and every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is expeditious and proper disposal of cases by such Magistrates. The learned Magistrate as well as the learned Sessions Judge in the revision application have rejected the contention of the petitioner raised before them. Therefore, there is no reason for this court to entertain this application on the merits also even if it is held that the petition is maintainable.

Accordingly, this application is rejected. Rule discharged. Interim relief stands vacated. The trial court is directed to proceed further with the case as early as possible. The writ of this order be sent down to the trial court forthwith.

At this stage, Shri Shah, the learned advocate appearing for the petitioner, requested this court to continue the ad interim relief for some time. The request made by Shri Shah cannot be accepted for the simple reason that a poor and unfortunate person like the complainant is the victim in this case who is cheated of his hard-earned money and instead of paying the amount, the accused persons have the luxury of litigation before the trial court, Sessions Court, this court and now for going to the Supreme Court. Therefore, this court will not entertain such a request of extending interim relief even for a day particularly when in the earlier petition this court has itself directed the trial court to expedite the case. Therefore, this request is also rejected.

The writ of this order be sent down to the trial court forthwith.