Pavanasam vs T. Parthasarathy and others

Natarajan, J.—This Petition has been filed to canvass the correctness of the dismissal of the Petitioner''s complaint as premature by the

Judicial I Class Magistrate No. 1, Tirunelveli as confirmed by the Additional Sessions Judge, Tirunelveli.

Respondents 1 and 2 are Police Officers while the 3rd Respondent is an agriculturist. Originally in the year 1972 the 3rd Respondent had

preferred a complaint against one Sudalaimuthu, the uncle of the Petitioner and a Sub Inspector of Police for an offence of theft of sheep. The

complaint was eventually dismissed for default u/s 204(3), Code of Criminal Procedure, (hereinafter called as the Code) on 15th April 1972. After

waiting for a period of two years the 3rd Respondent preferred a fresh report for theft of sheep against Sudalaimuthu, his son and the present

Petitioner in the year 1974. In connection with that complaint the Petitioner is said to have been arrested and placed in custody. While in custody

Respondents 1 and 2 are said to have removed about 14 sheep belonging to him and handed them over to the 3rd Respondent after obtaining

directions from court in that behalf. It is against that action of Respondent 1 to 3, the Petitioner came forward with the private complaint which was

dismissed as premature. The contention of the Petitioner was that he had nothing to do with the theft of sheep belonging to the 3rd Respondent and

as such the Respondents had no right whatever to forcibly remove his sheep and treat them at the stolen sheep of the 3rd Respondent.

On behalf of the Respondents, it was contended that the case registered against the Petitioner, Sudalaimuthu and another had not yet been

chargesheeted, and therefore, the complaint of the Petitioner that his sheep had been stolen was a premature one. That contention was accepted

by the trial Magistrate and the Petitioner''s complaint was dismissed. When the Petitioner preferred a revision to the Sessions Judge, the trial

Magistrate''s view was accepted by the Revisional Authority and the revision too was dismissed. It is in that background the present petition has

been filed in this Court.

Mr. I. Subramanian, learned Counsel for the Petitioner canvassed the claims of the Petitioner on merits as well as on a question of Jaw. Mr. G.

Krishnan, learned Counsel for the Respondents opposed this petition mainly on the ground that a second revision cannot be preferred by the

Petitioner in view of the inhibition contained in Sections 397(3) and 397(2) of the Code. For a proper appreciation of the controversy it is

necessary to make reference to Sections 397 and 399 of the Code.

Section 397 of the Code empowers the High Court or any Sessions Judge to 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. Sub-section (2)

lays down that the powers of revision conferred by Sub-section (l) shall not be exercised in relation to any interlocutory order passed in any

appeal, inquiry, trial or other proceedings. Sub-section (3) prescribes that if an application under this Section has been made by any person either

to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. Section 399 of the

Code deals with the powers of revision of the Sessions Judge. Sub-section (1) of that section states that in the case of any proceeding the record

of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under

Sub-section (1) of Section 401. Sub-section (3) states that where any application for revision is made by or on behalf of any person before the

Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at

the instance of such person shall be entertained by the High Court or any other Court. In view of Sub-section (3) of Section 399 and Sub-section

(3) to Section 399 it necessarily follows that the Petitioner in the instant case will not be entitled to ask for a revision of the order of the learned

Sessions Judge which was passed in exercise of his revisional jurisdiction. Mr. Subramanian fully realises the limitations placed by Sections 397

and 399 of the Code on a further revision to the High Court against an order of Sessions Judge passed in revision; but would contend that he is not

invoking the revisional powers of this Court to interfere with the order of the lower court, but only the inherent powers of this Court exercisable u/s

482 of the Code. Before proceeding to consider the contentions of the learned Counsel I may usefully refer to some of the decided cases on this

point.

In Chhail Das Vs. State of Haryana, it was held that where a revision petition is dismissed by the Sessions Judge the order is final and no second

revision petition lies before the High Court. The same view has been expressed by a Division Bench of the Andhra Pradesh High Court in Puvvula

Abbulu Vs. The State Station House Officer, Law and Order, . Dealing with the question whether a revision can be preferred against an

interlocutory order in pending proceedings, which is covered by Section 397(2) of the Code Nathan Vs. Vaithinathan and Others, and B. Sesagiri

Rao v. T. V. Sharma 1976 M.L.J. Cri. 274 have held that a revision will not lie. In the light of these decisions it must be held that the Respondents

are justified in their contention that a second revision cannot be preferred to this Court by the Petitioner. But as already stated Mr. Subramanian,

seeks the inherent power of this Court and not its revisional power to interfere with the order of dismissal of the Petitioner''s complaint.

So far as the exercise of the powers of High Court u/s 482 of the Code is concerned, it is no doubt true the powers are wide and unfettered;

but at the same time it must be noted that the powers cannot be made use of to defeat specific provisions of the Code unless it be that the situation

is so extraordinary or the circumstances are so compelling that the High Court will be justified in using its inherent power irrespective of limitations

placed by statutes, in the exercise of its appellate or revisional powers. The Respondents'' counsel argues that where there is a specific provision

under the Code limiting the jurisdiction of the High Court, the inherent powers of the High Court should not be used to defeat those provisions. In

support of this contention he places reliance on B. Seshagiri Rao v. T.V. Sarma 1976 M.L.J. Cri. 274 where it was held that the inherent powers

of the High Court cannot be invoked to do an act which would conflict with an express provision of law or other general principles of Criminal

Jurisprudence. He also relies on Sarjoo and Others Vs. Babadin and Another, where it was held that interlocutory orders passed validly cannot be

interfered with either u/s 401 or u/s 482 in view of the bar contained in Section 397(2) of the Code. But Mr. Krishnan contends that what applies

to Section 397(2) must apply with equal force to cases covered by Section 397(3) of the Code. Refuting this position, the Petitioners counsel Mr.

Subramaniam contends that the inherent powers of High Court are untrammeled and where it is necessary in the interests of justice to pass an

order then the High Court should exercise its inherent power and pass an order irrespective of the fact there is some provision of the Code which

inhibits the entertainment of an appeal or revision by the aggrieved party. For this proposition he places reliance on four cases. The first is A.L.

Mehra Vs. The State, A Single Judge of the Allahabad High Court has held that the exercise of inherent-power by the High Court is not barred by

Sections 397(3) and 399(3) of the Code. The second is in Pampapathy Vs. State of Mysore, were it was held that though an approver has to be

detained in custody till the trial is over as per Section 337 of the Code, yet the High Court can exercise its inherent powers and release the

approver on bail. In the third case Pampapathy v. State of Mysore it was held that a High Court can exercise its inherent power to cancel an order

of suspension of sentence and grant of bail to an accused made u/s 426. The last of the cases in Bhima Naick v. State1 to which reference has

already been made where a Division Bench has held that the High Court can, exercise its inherent power and quash an interlocutory order

irrespective of the embargo placed by Section 397(2) of the Code on revisions against such orders if the court found that the order was passed

without jurisdiction and therefore constitutes a nullity.

On a consideration of the matter I find that the contentions of the learned Counsel for the Petitioner ran be accepted. Admittedly the Petitioner

had preferred revision before the Sessions Judge and the order of Sessions Judge is final one, as per Section 399(3) of the Code. A second

revision against that order will not lie in view of the embargo placed by Section 397(3). In such circumstances the inherent power of this Court

cannot be invoked in order to overcome the statutory bar created by Section 397(3) of the Code. In other words what the Petitioner cannot get

through the front door he cannot be allowed to get through the back door. It may be that there are some extremely hard cases where a High Court

may use its inherent power of overriding nature to get over any technical plea or objection to do justice to a party; but such use of power as of

necessity has to be very very restricted and must always be an exception rather than the rule. In the instant case, I do not find there is any

justification for this Court to lean in favour of the Petitioner and; use its inherent power to give him relief. The Courts below have not dismissed his

complaint on merits. AH that they have said is that the Petitioner''s complaint appeared to be premature, since the case registered on the 3rd

Respondent''s report had not been charge sheeted. The courts below seem to have though that if the Police laid charge sheet on the report of the

3rd Respondent than without deciding that case on merits it will not be possible to take on file the Petitioner''s complaint of theft against the

Respondents and give any verdict. No doubt it is seen that two years have elapsed since the 3rd Respondent had preferred his report and the

Police have still not laid any charge sheet in the case. The Petitioner can ascertain! from the officers of the Police Department whether there is a

likelihood of the charge sheet being laid in the case registered against him and others and then, if advised, he may prefer a fresh complaint in the

court against the three Respondents. The filing of a fresh complaint will at best cause inconvenience to the Petitioner. He is not deprived of his right

to proceed against the Respondents eventually. In that view of the matter I have to hold-that the petition cannot be maintained and therefore the

same will stand dismissed.

As nearly two and a half years have elapsed since the third Respondent had preferred his report, the Judicial II Class Magistrate, Nanguneri is

instructed to direct the concerned Police Officers to file the charge sheet within a fortnight of the receipt of the records from this Court and if no

charge sheet is filed within that time, to treat the matter as of no consequence and take the fresh complaint by the Petitioner on file and dispose it of

according to law.