Madras High Court
S.K.Veluchamy Alias Stephen vs Ayyannar on 30 September, 2010
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/09/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition (MD) No.773 Of 2010 S.K.Veluchamy alias Stephen .. Petitioner Vs. 1. Ayyannar 2. Murugan 3. Murugesan 4. Muthan 5. Dada @ Sathan .. Respondents Crl.O.P. under Section 482 Cr.P.C. for the relief as stated therein. !For Petitioner ... S.K.Veluchamy alias Stephen, Party-in-person ^For respondents ... No appearance :ORDER
The petitioner has approached this Court with a prayer to call for the records and set aside the order passed in C.C.No.108 of 2008, dated 21.05.2008 on the file of the learned District Munsif-cum-Judicial Magistrate, Andipatti, confirmed in R.C.No.21 of 2008, dated 22.07.2009, by the learned Additional District and Sessions Judge, Fast Track Court, Periyakulam.
2. The petitioner herein has preferred a complaint before the learned District Munsif-cum-Judicial Magistrate, Andipatti, stating that, on 16.03.2007, near Andipatti Western Odai, Small culvert, at about 7.00 a.m., the petitioner dug a pit for fixing the Holy Cross and at that time, respondents 1 to 3/A1 to A3 abused him in filthy language, assaulted him and attempted to murder him and hence, he has given a complaint against them for the offences punishable under Sections 307, 427 and 154 IPC and against respondents 4 and 5/A.4 and A.5, for the offences punishable under Sections 427, 147 and 154 IPC. The learned District Munsif-cum-Judicial Magistrate, Andipatti, after examining the witnesses 1 and 2 and recording their statements, came to the conclusion that a prima-facie case is not made out and hence, he has dismissed the complaint in C.C.No.108 of 2008, by order dated 21.5.2008. As against the same, the petitioner/complainant preferred a revision before the Fast Track Court, Periyakulam, and the learned Additional District and Sessions Judge, Fast Track Court, Periyakulam, after considering the arguments of the petitioner/complainant-in-person, dismissed the revision by confirming the order passed by the the learned District Munsif-cum-Judicial Magistrate, Andipatti,. Challenging the same, the petitioner/complainant has preferred this Crl.O.P. under Section 482 Cr.P.C.
3. Heard the petitioner-complainant, who appeared in person. Even though notice has been served on the respondents, none appeared either in person or through counsel.
4. The petitioner/complainant/party-in-person submitted that he has given a complaint against the respondents/A.1 to A.5, under various penal provisions, stating that on 16.03.2007 at about 7.00 a.m., when he attempted to dug a pit for fixing a Holy Cross in Government Natham Poramboke land in Survey No.7117/A/1A, as the said Holy Cross had been damaged on 25.12.2006, the respondents/accused abused him in filthy language, attempted to murder him and damaged the board. Even though the petitioner has given a Police complaint, no action has been taken and hence, he preferred a complaint before the learned Magistrate. The learned District Munsif-cum-Judicial Magistrate, Andipatti, has recorded the statement and taken the complaint on file in C.C.No.108 of 2008 and for issuing of processes under Section 202 Cr.P.C., the case was posted on 02.05.2008.
5. The learned District Munsif-cum-Judicial Magistrate, Andipatti, considered the evidence/statement of the petitioner as well as the evidence of one Kuzhandivelu and Pandiammal, i.e. C.Ws.1 and 2, and came to the conclusion that no prima-facie case is made out and hence, he dismissed the complaint, against which, the petitioner-complainant/party-in-person preferred a revision, which was also dismissed by the learned Additional District and Sessions Judge (Fast Track Court), Periyakularm, against which, the present Crl.O.P. under Section 482 Cr.P.C. has been filed by him.
6. At this juncture, it is appropriate on the part of this Court to decide as to whether the Criminal Original Petition under Section 482 Cr.P.C. under the guise of second revision, is maintainable.
7. It is appropriate to incorporate Sections 397 and 482 of Cr.P.C.
"Section 397: Calling for records to exercise powers of revision:(1)The High Court or any Sessions Judge may 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.-All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) 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 482 Cr.P.C..-- Saving of inherent power of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
8. While considering Section 397(3), it bars second revision. When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked. The bar of this section was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Sessions Judge's order. When revision against the order of Magistrate dismissing the complaint, had been dismissed by the learned Sessions Judge, application to the High Court under Section 482 Cr.P.C., against the order of dismissal, would not lie, as it would amount to circumventing this provision, which prohibits second revision. When a person, aggrieved by the dismissal of the complaint by the the learned District Munsif-cum-Judicial Magistrate, Andipatti, filed a revision application before the learned Additional District and Sessions Judge (Fast Track Court), Periyakulam, and on his refusal, the second revision petition before the High Court is not maintainable. The bar to a second revision applies to the person who has filed in the Court of Session and failed in it. Where cognizance was taken and accused was discharged under the old Code, second revision to the High Court is not maintainable in view of the bar. If a person moves the High Court under Section 397 Cr.P.C. under its revisional jurisdiction without approaching the Sessions Court, he cannot be refused relief on the ground that special circumstances have to be made out. But if he chooses to move the Sessions Court under Section 397 Cr.P.C., he cannot thereafter approach the High Court for another revision in the form of quash-petition under Section 482 Cr.P.C., under the guise of second revision.
9. The inherent powers cannot be invoked in a manner that the effect would be just entertaining a second revision, which has been expressly barred except in extraordinary cases. The bar, as contained in sub section (3) of Section 397 Cr.P.C., cannot be circumvented by resorting to Section 482 Cr.P.C. A second revision under the garb of a quash-petition under Section 482 Cr.P.C. is not maintainable. An order passed in revision by the learned Sessions Judge, cannot be quashed by the High Court, under Section 482 Cr.P.C. The bar of this Section would be attracted effectively and it cannot be circumvented by the subterfuge of treating the revision application as directed against the learned Sessions Judge's order, instead of one directed against the order of a learned Magistrate. It is not permissible to do so.
10. At this juncture, it is appropriate to consider the following decisions of the Supreme Court and this Court:
(a) 1993 (1) SCC 435 = 1993 SCC (Cri) 333 = AIR 1993 SC 1361 (Dharampal Vs. Ramshri):
"6. ... ... It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of respondent 1. On this short ground itself, the impugned order of the High Court can be set aside."
(b)1995 (5) SCC 751 = 1995 SCC (Cri) 1020 (Deepti Vs. Akhil Rai) "4. ... It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. As we find that the order passed by the High Court is not legal and just it will have to be set aside."
(c) 1997 (4) SCC 241 = AIR 1997 SC 987 = 1997 Cri.L.J. 1519 (Krishnan Vs. Krishnaveni) :
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. ...."
"10. .... Ordinarily, when revision has been barred by Section 397(3) of the Code, a person-accused/complainant-cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code."
(d) JT 2002 (3) SC 409 (Laxmi Bai Patel Vs. Shyam Kumar Patel):
"3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under section 482 Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under section 397(3) Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well-settled that in such a case power under section 482 Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice. The Court in the case of Dharampal & Ors. v. Ramshri (Smt.) & Ors. [JT 1993 (1) SC 61], held:
" .... Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of respondent 1. On this short ground itself, the impugned order of the High Court can be set aside."
4. In the case of Deepti alias Arati Rai v. Akhil Rai & Ors, [ JT 1995 (7) SC 175 = 1995 (5) SCC 751 ], a similar view was taken by this Court and it was observed:
"... It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code...."
5. In the case of Krishnan & Anr. v. Krishnaveni & Anr. [ JT 1997 (1) SC 657 ], a three Judge bench of this Court held that the inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code and that the object of section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the court of sessions so as to prevent unnecessary delay and multiplicity of proceedings. This Court made the following observations in paragraph 10 of the judgment:
"Ordinarily, when revision has been barred by section 397(3) of the Code, a person-accused/complainant-cannot be allowed to take recourse to the revision to the High Court under section 397(1) or under inherent powers of the High Court under section 482 of the Code since it may amount to circumvention of the provisions of section 397(3) or section 397(2) of the Code. It is seen that the High Court has suo motu power under section 401 and continuous supervisory jurisdiction under section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397(1) read with section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously."
(e) 1997(2)CTC 567(Madras High Court) Govindaraj.K. Vs.Ashwin Barai) "7. .... Section 397(3) states 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. In other words when the earlier revision petition under Section 397(1) was filed, there cannot be a second revision petition by the same accused, and this provision of law cannot be circumvented by invoking the inherent jurisdiction of the High Court under Section 482 of Cr.P.C. This view gains support from the decision of the Supreme Court in Deepti v. Akhil Rai, 1995 (5) SCC 751 wherein at page 752 and at the end of para 4 it was held as follows:-
"It High Court should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court if not maintainable and that the inherent power under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the code."
Therefore the petitioner/accused herein is specifically barred under Section 397(3) of Cr.P.C. for maintaining this application under Section 482 of Cr.P.C. to invoke the inherent power of the High Court to set aside the order dated 28.3.1995 in Crl. Revision Case No.15 of 1994 and consequently to revise the charges framed by the Judicial Magistrate, Pondicherry and to discharge the accused from the case in C.C.No.230 of 1992."
(f) 1999 SCC (Cri) 1118 = 1999 (6) SCC 326 = AIR 1999 SC 2374 = 1999 Cri.L.J. 3668 (Rajathi Vs. C.Ganesan):
"10. In Krishnan v. Krishnaveni (1997 (4) SCC 241 : 1997 SCC (Cri) 544) this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. This Court said as under: (SCC p.248, para 10) "10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person- accused/complainant- cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously."
11. In the present case, the High Court minutely examined the evidence and came to the conclusion that the wife was living separately without any reasonable cause and that she was able to maintain herself. All this the High Court did in exercise of its powers under Section 482 of the Code which powers are not a substitute for a second revision under sub-section (3) of Section 397 of the Code. The very fact that the inherent powers conferred on the High Court are vast would mean that these are circumscribed and could be invoked only on certain set principles."
(g) AIR 1980 SC 258 = 1980 (1) SCC 43 = 1980 SCC (Cri) 72 (Rajkapoor Vs. State):
"10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of 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, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right 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. In Madhu Limaye case (Madhu Limaye Vs. State of Maharashtra (1977 (4) SCC 551 = 1978 SCC (Cri) 10 = AIR 1978 SC 47) this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution "would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction" (1977 (4) SCC 551, 556, para 10 :
AIR 1978 SC 47, 51).
In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory 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 Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J : (SCC p. 556, para 10) "The answer is obvious that the bar 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. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified."
(h) 2009 (2) SCC (Cri) 8 = 2009 (3) SCC 310 = AIR 2009 SC 2075 = 2009 Cri.L.J. 1770 (Shakuntala Devi Vs. Chamru Mahto):
"24. It is well settled that the object of the introduction of sub- section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under sub-section (3) of Section 397 of the Code, and was capable of being invoked in appropriate cases. Mr.Sanyal's contention that there was a complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us."
11. Though as per some of the above said decisions, even when a specific provision is made easy to resort to, the inherent power is not a right to be exercised by the Court but only except under compelling circumstances and not that there is absence of jurisdiction, but that inherent power should not invade areas set apart for specific power under the same Cr.P.C. Departure from the Cr.P.C. could only be under compelling and exceptional circumstances and also only in rarest of rare cases.
12. In the present case, there is no compelling circumstance or exceptional circumstance or it could not even be stated to be a rarest of rare case, warranting invocation of Section 482 Cr.P.C. by this Court, and it is a clear case that under the guise of second revision, the petitioner has approached this Court. Hence, as per the ingredients of Sections 397 and 482 Cr.P.C., and applying the above decisions of the Supreme Court and this Court, I am of the considered opinion that the second revision, under the guise of the quash-petition/call for records/setting aside the records, under Section 482 Cr.P.C., is not maintainable.
13. Coming to the aspect of prima-facie case having been made out or not, on a perusal of the evidence of C.W.1 Kuzhandaivelu and C.W.2 Pandiammal, the learned District Munsif-cum-Judicial Magistrate, Andipatti, in paragraph 7 of its judgment, came to the conclusion that no prima-facie case is made out. Further, the the learned District Munsif-cum-Judicial Magistrate, Andipatti, relied upon the documents and came to the conclusion that apart from prima-facie case not being made out, there is a delay, which has not been properly explained, and the same has also not helped the case of the petitioner/complainant. Furthermore, C.Ws.1 and 2, namely Kuzhanthaivelu and Pandiammal, are not the eye-witnesses and that has been mentioned by the the learned District Munsif-cum-Judicial Magistrate, Andipatti, in paragraph 11 of the judgment. Considering all these things, the the learned District Munsif-cum- Judicial Magistrate, Andipatti, has come to the conclusion that there is no prima-facie case made out for taking cognizance of the private complaint. The learned Additional District and Sessions Judge (Fast Track Court), Periyakularm, has also considered all the aspects in proper perspective and confirmed the order of the learned District Munsif-cum-Judicial Magistrate, Andipatti.
14. Hence, the impugned orders passed by both the Courts below in rejecting the private complaint, do not warrant any interference by this Court. Therefore, the Crl.O.P. deserves to be dismissed as not maintainable.
15. For the reasons stated above:
(a) The Criminal Original Petition is dismissed.
(b) The impugned orders of both the Courts below in rejecting the petitioner's private complaint, are confirmed.
cse / cs To
1.The Judicial Magistrate, Andipatti.
2. The Additional District and Sessions Court-cum-Fast Track Court, Periyakulam.