Mariammal vs P. Ramadoss and Others

Rengasamy, J.—This matter is relating to the maintainability of the petitioner.

The petitioner herein was the complainant in Crime No. 705 of 1993 before the Judicial Magistrate, Thirumangalam, for the offences under

Sections 447, 448 and 323, Indian Penal Code. The occurrence took place in 11-10-1993 and the First Information report also was lodged on

the same day. However, the Thirumangalam Town Police, who initiated the proceedings before the Judicial Magistrate, Thirumangalam, did not file

the charge sheet for more than an year and therefore, the accused therein filed Crl. M.P. No. 2864 of 1994 on 20-10-1994 u/s 167(5) and

468(2), Code of Criminal Procedure to stop the further proceedings and discharge them. The learned Judicial Magistrate allowed the petition

discharging the accused persons. Aggrieved of that order, the complainant, who is the petitioner herein, has come forward to this Court and has

filed the petition u/s 482, Code of Criminal Procedure to quash the order of the learned Judicial Magistrate.

The Registry entertained a doubt as to the maintainability of this petition u/s 482, Code of Criminal Procedure for the reason that Section

397(1), Code of Criminal Procedure provides the procedure to agitate against the illegal order passed by a subordinate courts, and therefore

returned the petition. However, the learned counsel for the petitioner had represented the petition with an enforcement which reads that the petition

is maintainable in view of the decision reported in 1984 Cri. LJ 576, that further the complainant had failed to file the revision in time and therefore,

the only remedy open to the victim is to invoke the inherent powers of the High Court u/s 482, Code of Criminal Procedure. As the registry is not

satisfied with this endorsement made by the learned counsel, the matter is placed before the open court for consideration.

The learned Counsel for the petitioner Mr. Selvam submitted that even though u/s 167(5), Code of Criminal Procedure, a specific period is

mentioned for filing the charge sheet for the summons cases within a period of six months or else to stop the further proceedings, that in this case,

the averments of the complaint is very specific for the offence u/s 506(ii), Indian Penal Code also and therefore the time for filing the charge sheet is

not restricted to one year as misconceived by the learned Judicial Magistrate, that as the learned Judicial Magistrate has passed the illegal order

when he has no Jurisdiction to pass the order u/s 468(2), Code of Criminal Procedure the same can be questioned u/s 482, Code of Criminal

Procedure. In other words, according to the learned counsel, when the Court had no jurisdiction to pass an order but has pass on order under the

assumption of power, the same can be questioned u/s 482, Code of Criminal Procedure to quash the order. The learned counsel cited a decision

of this Court in Inspector of Police, Central Crime Branch v. Deepam and Anr. 1991 LW (Crl.) 568 which according to him, to having similar

facts and the order was questioned invoking the inherent powers of the High Court u/s 482, Code of Criminal Procedure.

But in that case relied upon by the learned counsel, the maintainability of that petition u/s 482, Code of Criminal Procedure was not considered

by the Court and no ratio was laid for the application of Section 482, Code of Criminal Procedure. It a true that in that case also, the further

proceedings was stopped for the reason that he charge was not filed within the specified time and that order was questioned in this court by filing a

petition under Section, 482, Code of Criminal Procedure. But, somehow, the Registry did not raise any question as to the maintainability of the

petition was taken in file. During the stage of enquiry also, the maintainability of the petition u/s 482, Code of Criminal Procedure was not raised by

the respondent. Therefore, this Court purely considered validity of the order passed therein and it did not go into the question as to the

maintainability of the petition u/s 482, Code of Criminal Procedure. Therefore, this decision relied upon by the learned counsel Mr. Selvam will not

in any way come to his rescue with regard to the point in dispute in this proceedings. In the endorsement made by the learned counsel, while re-

presenting the petition, he has cited 1984 Cri. LJ. 576, which has no relevance for this case because that decision relates to a second complaint

that was taken cognizance by the Court u/s 202, Code of Criminal Procedure. It does to deal with the maintainability of a petition u/s 482 code of

Criminal Procedure in invoke the inherent powers.

As mentioned above, the learned counsel Mr. A. Selvam concedes that when an order was passed u/s 167(5), Code of Criminal Procedure, a

procedure is prescribed u/s 167 sub Section 6 of the code to challenge the order mentioned above. But his contention is that when the order was

passed u/s 486(2) of the Code Criminal Procedure, though the court had not powers to invoke that provision, it can be questioned u/s 482, Code

of Criminal Procedure. Section 397, Code of Criminal Procedure is a relevant provision enabling an aggrieved party to challenge any order,

finding, any sentence, as to its correctness, legality propriety, either before the Sessions, legality propriety, either before the Sessions Court or

before the High Court, It is contended by the learned counsel Mr. Selvam that the learned Judicial Magistrate, Thirumangalam, had no jurisdiction

to exercise the powers in this case u/s 468(2), Code of Criminal Procedure as offence alleged would fall u/s 506-II for which no limitation is fixed.

For this grievance also, Section 397(I), Code of Criminal Procedure prescribes the procedure. It was also not contended before me by the

learned counsel Mr. Selvam that the petitioner had no right of revision against the order passed by the learned Judicial Magistrate, Thirumangalam.

However, the endorsement, he has mentioned that as the petitioner failed to file the revision in time, the only remedy for him is to invoke the

inherent powers u/s 482 code of Criminal Procedure. The learned counsel submitted that the petitioner was not aware of the order passed by the

Judicial Magistrate in Crl O.P. No. 2864 of 1994 filed by the accused to discharged, them, that the court also did not issue any notice before

passing the order and only in the late stage, he came to know about the passing of such order and therefore, now the limitation to file the revision is

over. When the petitioner was not aware of the order passed by the Judicial Magistrate discharging the accused persons, it may be a good ground

for her to seek condonation of the delay, to file a revision petition against the order passed by the learned Judicial Magistrate. Therefore, it cannot

be stated that he petitioner has no remedy u/s 397, Code of Criminal Procedure. Section 482, Code of Criminal Procedure is a special provision

to be invoked to give effect to any order passed under this Code or to prevent the abuse of process of any Court or otherwise to secure the ends

of justice, the language of the Section makes it clear that the High Court can exercise its powers under this section only in exceptional

circumstances when there is no other way to set right the wrong, otherwise, there will be failure of justice, when the specific provision is available

to seek the remedy to an aggrieved party, he is bound to seek his remedy only under the prescribed provision. He cannot by pass that provision

for his convenience sake and seek to invoke the inherent powers of the High Court. As Section 482 code of Criminal Procedure has to be

sparingly used, when there is no other way to seek the remedy, the petitioner herein cannot straight away file the petition u/s 482, Code of Criminal

Procedure bye-passing Section 397 code of Criminal Procedure.

It is held in Avadh Narain Lal Vs. State of Uttar Pradesh and Another, that the inherent powers u/s 482, Code of Criminal Procedure being an

extraordinary and residuary power, is no available no regard to matters, which have been specifically provided for under other provisions of the

code of Criminal procedure and High Court would not exercise its power u/s 482, Code of Criminal Procedure where any party could have, but

did not, avail of the remedy u/s 397, Code of Criminal Procedure. The same is the expressed in Krishan Lal Vs. Sh. Ghaniya and Others,

emphasising that the inherent powers of the High Court cannot be exercised in regard to matters specifically covered by other provisions of the

Code.

In view of the above, the petition is not maintainable and the same is rejected. The objection raised by the Registry is sustained.