Bhoj Raj Singh vs State of Rajasthan and Another

V.S. Dave, J.—In this petition filed u/s 482 Cr. PC the petitioner has challenged the order passed by learned Addl. Sessions Judge, Deeg, dated 5.4.1991 upholding the order of the learned Munsiff & Judicial Magistrate, Deeg, dated 6.2.1990 in criminal case No. 216/88 taking cognizance of offence against the petitioner.

Brief facts leading to this petition are that Rajendra Prasad, respondent No. 2, lodged a report on 11.5.1988 at the police station, Nagar alleging certain allegations against four persons which constituted offences under Sections 323, 324, 452 and 279 IPC. The police after investigation of the case filed charge- sheet against three accused, namely, Ashok Kumar, Brijesh and Pradeep Kumar and submitted the Final Report against the petitioner, Bhoj Raj Singh. The complainant filed a private complaint against him on which statements under Sections 200 and 202 Cr.PC were recorded and there after issued process against the accused for offence u/s 326 read with Section 34 IPC and directed to amalgamate the private compliant with the charge-sheet already submitted against the three, purporting to have exercised power u/s 210(2) Cr.PC. Accused filed a revision which was dismissed, hence this petition.

A preliminary objection was raised that in view of the bar contemplated u/s 397(3) Cr.PC the petition u/s 482 Cr.PC cannot be filed which virtually amounts to second revision. It was submitted that once remedy is exhausted, this Court should not entertain the revision petition. Reliance in this connection was placed on the decision reported in Dharampal and others Vs. Smt. Ramshri and others, Time was granted by me to the learned Counsel for the petitioner to study the preliminary objection. Learned Counsel for the petitioner, Mr. Virendra Bandhu, submitted that there is no bar for this Court to entertain an application u/s 482 Cr.PC. His submission is that inherent powers of the court u/s 482 Cr.PC do not stand repelled when the revisional powers u/s 397 Cr PC overlape. It is submitted that their Lordships of the Supreme Court, in Raj Kapoor and Others Vs. State and Others, have held that nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, when a specific provision is made easy, resort to inherent power is not considered except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. There is no total ban on the exercise of inherent power where abuse of the process of the court of other extra-ordinary situation excites the court''s jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that inter-locutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as for example, where it is more than a purely interlocutory order and less than a final disposal. In such case the inherent power can be exercised.

It is then submitted (hat similar view has been taken by their Lordship of the Supreme Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, where Raj Kapoor''s case has been followed and the court held as under:

Section 482 of the present Code is the adverbatim copy of Section 561-A of the old code. This provision confers a separate and independent power on the High Court alone to pass orders ex-debito Justitiae in cases where grave and substantial injustice has been done or where the process of the Code has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks, against witnesses or other persons or subordinate courts. Thus, the scopeambitand range of Section 561-A (which is now Section 482) is quite different from the powers conferred by the present code under the provisions of Section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well settled that the inherent powers u/s 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Fur the, the power being an extraordinary one it, has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between Sections 482 and 397(2) of the present Code.

In Madhu Limaye Vs. The State of Maharashtra, the Supreme Court has held that the bar u/s 397(2) will not operate to prevent the abuse of the process of the court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. It is also submitted that in Kana Ram v. Stale of Raj. and Ors. 1993 Cri.LR 103 a latest Full Bench case of this Court has dealt with the point wherein this Court has held that in exceptional cases inherent jurisdiction of this Court can be invoked. It is therefore, submitted that preliminary objection should be over-ruled and interference should be done in the instant case.

Learned Counsel for the petitioner then submitted that the court had inherent lack of jurisdiction in taking cognizance and when very basis is under challenge it becomes a case of abuse of the process of the court and this Court must interfere in order to secure the ends of justice. The submission of the learned Counsel is that the learned Magistrate has erred in law in pressing into service the provisions of Section 210 Cr. PC. The submission is that Section 210(1) Cr. PC deals with staying of the proceedings in an enquiry or trial initiated on the complaint case when it is brought to the knowledge of the court that police investigation is also in progress in the same mater. it is submitted that thereafter the procedure is provided in Sub-section (3) of Section 210 Cr. PC. It is submitted that in the instant case complaint has been filed much after filing of the charge-sheet u/s 173 Cr. PC Sub-section (2) of Section 210 Cr. PC cannot be invoked and the order of the learned Magistrate is therefore, void ab-initio, illegal and without jurisdiction for which reason interference in Section 482 Cr.PC is a must.

Mr. Kala, appearing on behalf of the respondent submitted that Section 482 Cr.PC is not meant to circumvent the provisions of Section 397(2) Cr. PC where there is an absolute bar for entertaining the second revision-petition. It is submitted that the matter is concluded by the decision of their Lordships of the Supreme Court in Aher Pitha Vajshi and Others Vs. State of Gujarat, and Kana Ram v. State of Raj. and Ors. 1993 Cri. L.R. 103.

I have given my thoughtful consideration to the rival contentions and have gone through all the cases cited before me as well as the record of the case.

Coming to the preliminary objection firs, in my opinion arguments advanced by both the sides are more illusory than real. 5. 482 Cr. PC. as well as Section 397 Cr. PC have different parameters. After discussing several cases decided by the Supreme Court and other High Courts. I have already taken this view and in series of judgments that the High Court or the Court of Sessions have concurrent jurisdiction as expressly provided in the section and it is open to the aggrieved person invoking the revisional jurisdiction either to move the High Court or the Sessions Court. Before the commencement of Criminal Procedure Code of 1973 the position of law was different and several courts have held that the practice is that the Sessions Judge should be moved in the first instance before filing a revision application before the High Court because no specific bar for the second revision was provided in Criminal Procedure Code of 1898, but now the High Court do not follow the practice under the Old Code as that would result in destruction of the right of the party to move the High Court. Their Lordships of the Supreme Court have therefore, held in Jagir Singh Vs. Ranbir Singh and Another, that a High Court and Sessions Judge has concurrent jurisdiction. It is all the more because once having made a revision petition in the court of Sessions, the second revision petition by the same party is the High Court is specifically bar u/s 397(3) Cr.PC. There in neither inconsistency in the provisions of Sections 397 and 482 nor in there any conflict. Legislature when used the words in both the sections it was absolutely conscious and then there was a long history of interpretation. The meaning of inherent powers of the court as in Code of 1898 had an identical provision in Section 561-A Cr. PC. Section 482 Cr. PC is the verbatim reproduction of the corresponding Section 561-A Cr. P.C. except that the words inherent powers have been substituted in the word inherent power. The High Court or the court of Sessions may call for the record and interfere in revisional jurisdiction when it is satisfied as to the correctness, legality or propriety of any finding sentence or order recorded or passed and as to the regularity of the proceedings of inferior court. While invoking the inherent jurisdiction the parameters fixed are to give effect to any order under the Code or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Thus, the power to be exercised under this section is in its nature extra ordinary and totally different than the one used in Section 397 Cr. PC. The legislature was not short of vocabulary where it enacted both the sections and, therefore, one cannot be substituted for the other and then the provisions of Section 482 Cr. PC cannot be invoked to circumvent the bar imposed by Section 397(3) Cr. PC.

There may be cases where the legality, propriety, correctness etc. of the order may be challenged simultaneously it may also be a case of abuse of the process of the court or it may be essential for securing the ends of justice or to give effect to any order under the Code but in that case it is always open to the party to directly invoke the jurisdiction of this Court. But if the order of the inferior court has once been challenged before the Sessions Judge in its revisional jurisdiction challenging the correctness, legality or propriety of the order it would not, except in extraordinary case permissible for the party to come and say before this Court that inherent jurisdiction of the court can be invoked as the order under challenge is defective. Basically it is the order of the first court against which revision has to be filed and the question of second revision in the High Court would arise. Therefore, at the time of invoking the revisional jurisdiction proper application of the mind by the party is essential. It may well challenge the same order under both the provisions before this Court but it cannot be permitted to circumvent the provisions of Section 397(3) Cr. PC by only changing the very phraseology. I do not see any conflict of decision in any of the case as it is clear that there cannot be an absolute bar for invoking the inherent jurisdiction of this Court because High Court has otherwise also inherent powers under Article 226 of the Constitution of India, therefore, powers of this Court can never be circumscribed and this Court in appropriate cases in exceptional circumstances may invoke its power but it cannot be made regular feature for circumventing the provisions of Section 397(3) Cr.PC.

For the purpose of deciding the preliminary objection, since learned Counsel has raised the question of jurisdiction of the trial court it would not be out of place to mention that the arguments advanced are only about the legality of the order in view of the provisions of Section 210 Cr. PC. which cannot be said to be the question of abuse of the process of the court or for securing the ends of justice, lest it may affect the rights of the parties subsequently and as also the merits, it would not deal with the facts of the case or for that merits of the case. But suffice it to say that the petitioner had been labouring under misconception of law. Case of complaint cannot be amalgamated with the police report after filing of the documents u/s 173 Cr. PC and the court''s taking cognizance of the offence. If is well settled proposition of law that the cognizance is of the offence and not an offender and cognizance cannot be taken for the same offences twice. Number of accused can be added at any stage even as provided u/s 319 Cr. PC. of course, subject to the ingredients of that provision. Hence once the cognizance of the offence has been taken on the papers submitted u/s 173 Cr.PC and subsequently because the Final Report has been given against one of the accused and a complaint is entertained and process issued after recording the statements of the witnesses, I do not see any illegality in the accused being arrayed as one of the accused along with the trial of the police report case and both the cases can, therefore, be amalgamated. In my opinion the orders of the trial court as well as the revisional court do not warrant any interference.

This miscellaneous petition fails and is dismissed.