Salma Bibi vs State of Rajasthan and Others

Prashant Kumar Agarwal, J—Heard learned counsel for the parties.

The accused-petitioner has filed this criminal misc. petition under Section 482 Cr.P.C. with the following reliefs:

"(A) The impugned cognizance order dated 22.5.2015 passed by learned Chief Judicial Magistrate, Kota in Criminal Case No. 333/2015 may kindly be quashed and set aside;

(B) The respondents may kindly be directed to pay immediate interim relief of Rs. 5 lacs and final compensation of Rs. 10 lacs for the unlawful detention and mental harassment of the petitioner;

(C) The respondents No. 1, 2 & 3 may kindly be directed to declare the petitioner as a victim and not an accused;

(D) To quash and set aside the entire proceeding against the accused-petitioner;

(E) The respondent-State may kindly be directed to record the statement of the petitioner under Section 161 Cr.P.C.;

(F) The respondent-State may kindly be directed to follow the due process of law as enshrined under Section 15(5A) of the Immoral Traffic Prevention Act, 1956;

(G) The respondents may kindly be directed to follow the due process of law as enshrined under Section 17 of the Immoral Traffic Prevention Act, 1956;

(H) Any other appropriate order which may be found just and proper in the facts and circumstances of the case be passed in favour of the petitioner."

The preliminary objection required to be considered and decided in this case is with regard to the maintainability of this petition under Section 482 Cr.P.C. against the order dated 22.5.2015 passed by the Chief Judicial Magistrate, Kota in Criminal Case No. 333/2015 whereby the learned trial Court by dismissing the application filed by the petitioner under Section 227 Cr.P.C. ordered to frame charge for the offences under Sections 3, 4 & 5 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the ''Act'') against the petitioner in respect of FIR No. 47/2015 registered at Police Station Kotwali, Kota.

Brief relevant facts for consideration and decision of the aforesaid preliminary objection are that the aforesaid FIR came to be registered on 20.2.2015 on the premise that petitioner and co-accused were found involved in prostitution and after investigation charge-sheet was filed against the petitioner and co-accused for the aforesaid offences. Petitioner filed an application under Section 227 Cr.P.C. taking various grounds with a prayer to discharge her for the offences for which charge-sheet has been filed. Some other reliefs were also sought. Learned trial Court after hearing the parties dismissed the application and ordered to frame charge against the petitioner for the aforesaid offences. In such circumstances, the present petition under section 482 Cr.P.C. was filed with the reliefs already stated.

On the question of maintainability of the petition under Section 482 Cr.P.C., it was submitted by the learned counsel for the petitioner that by way of this petition petitioner has not only challenged the validity of order dated 22.5.2015 passed by the trial Court whereby charges were ordered to be framed against the petitioner but some other reliefs have also been sought which can be granted by the High Court under Section 482 Cr.P.C. only and, therefore, the petition cannot be held not to be maintainable as alternative remedy to file criminal revision petition under Section 397 read with Section 401 Cr.P.C. is available to the petitioner. It was further submitted that even if for the sake of arguments, it is admitted that against the order of charge revision petition can be filed by the accused even then remedy under Section 482 Cr.P.C. is not barred. In support of his submissions, learned counsel for the petitioner relied upon the case of Amar Nath and Others Vs. State of Haryana and Another, AIR 1977 SC 2185 : (1977) CriLJ 1891 : (1977) 79 PLR 695 : (1977) 4 SCC 137 : (1978) 1 SCR 222 and Mohit alias Sonu and Another Vs. State of U.P. and Another, (2013) 8 AD 631 : AIR 2013 SC 2248 : (2013) 3 JCC 2250 : (2013) 9 JT 205 : (2013) 3 RCR(Criminal) 673 : (2013) 7 SCALE 620 : (2013) 7 SCC 789 .

On the other hand, it was submitted by the learned Public Prosecutor that the main relief sought by the accused-petitioner by way of this petition is against the order dated 22.5.2015 whereby charge for the aforesaid offences has been ordered to be framed against the petitioner and all other reliefs sought by the petitioner are consequential to the main relief and unless the petitioner is discharged from the offences for which charge-sheet has been filed against her, no other relief can be granted to her. It was further submitted that it is well settled legal position that an order of framing of charge can be challenged by the accused by way of criminal revision petition under Section 397 read with Section 401 Cr.P.C. and it is also well settled that if alternative remedy is available, inherent jurisdiction conferred upon the High Court under Section 482 Cr.P.C. cannot be exercised. It was also submitted that if the Revisional Court comes to a conclusion that the petitioner is liable to be discharged from the offences for which charge-sheet has been filed against her, some of the reliefs sought by the petitioner by way of this petition would become automatically infructuous and for rest of the reliefs, the petitioner may pursue appropriate remedy before a proper forum.

I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law relied upon on behalf of the petitioner.

From the averments made in the petition, it is clear that the main relief sought by the petitioner is against the order dated 22.5.2015 whereby the learned trial Court by dismissing the application under Section 227 Cr.P.C. filed by the petitioner has ordered to frame charge for the aforesaid offences against the petitioner as well as co-accused and the other reliefs are only ancillary to the main relief. It is also clear that if the petitioner is discharged from the offences for which charge has been ordered to be framed against her, some of the reliefs would become automatically infructuous. So far as other reliefs are concerned, the same cannot be granted, if for the sake of arguments it is admitted at this stage of the proceedings that they are liable to be granted to the petitioner, unless the petitioner is discharged. Therefore, in view of the above, it is to be considered whether the order dated 22.5.2015 can be challenged under Section 482 Cr.P.C.

It has not been disputed by the learned counsel for the petitioner that an order of framing of charge is a final order against which remedy of revision under Section 397 read with Section 401 Cr.P.C. is available.

In the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, AIR 1983 SC 67 : (1983) CriLJ 159 : (1982) 2 SCALE 1124 : (1983) 1 SCC 1 : (1983) 1 SCR 884 , Hon''ble Supreme Court has held that it is well settled that the inherent powers under Section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the Statute.

In the case of Mohit @ Sonu & Anr. (supra), relied upon by the learned counsel for the petitioner, Hon''ble Supreme Court has held that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be bar in involing the inherent jurisdiction by the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which the order impugned can be challenged.

In the present case, as the order of framing of charge is not an interlocutory order within the meaning of sub-section (2) of Section 397 Cr.P.C. and against it revision petition can be filed, in view of the well settled legal position, inherent powers conferred upon this Court under Section 482 Cr.P.C. cannot be exercised.

Consequently, it is held that the present petition under Section 482 Cr.P.C. against the order dated 22.5.2015 passed by Chief Judicial Magistrate, Kota in Criminal Case No. 333/2015 is not legally maintainable, but in the facts and circumstances of the case, Office is directed to treat this Criminal Misc. Petition as Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. and list the same before the appropriate Bench.