Jharkhand High Court
Madan Mohan Pandey vs Union Of India Through C.B.I. ... ... ... on 20 January, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 612 of 2019
Madan Mohan Pandey, aged about 52 years, son of Sri Chirkut
Pandey, resident of Jagjivan Nagar, P.O. & P.S. Saraidhela, District-
Dhanbad (Jharkhand) ... ... ... Petitioner
Versus
Union of India through C.B.I. ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. A.K. Kashyap, Senior Advocate
Mr. Antriksh Srivastava, Advocate
For the Opp. Party : Mr. Rohit Sinha, Advocate
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3/20.01.2020
1. Heard Mr. A.K. Kashyap, learned senior counsel appearing on behalf of the petitioners along with Mr. Antriksh Srivastava, Advocate.
2. Heard Mr. Rohit Sinha, learned counsel appearing on behalf of the opposite parties representing CBI.
3. This petition has been filed for the following reliefs:-
"For quashing of the order dated 13.02.2019 passed by the learned Additional Sessions Judge-XVI-cum-Special Judge, CBI, Dhanbad in R.C. Case No. 05(A)/2017-D, whereby the prayer made on behalf of the petitioner for discharge under Section 227 of the Code of Criminal Procedure for the offence under Section 7 and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 has been rejected, the case is pending for framing of charge in the court of Mrs. S. Srivastava, the learned Additional Sessions Judge-XVI-cum- Special Judge, CBI, Dhanbad."
4. Learned counsel for the opposite party has raised preliminary objection regarding the maintainability of the present petition under Section 482 of the Cr. P.C. by submitting that the impugned order refusing to discharge the petitioner is revisable under Section 397 of the Cr. P.C. He submits that the impugned order reflects appreciation of materials which were 2 available before the learned court below and there being specific remedy available to the petitioner under Section 397 of the Cr. P.C., the present petition under Section 482 Cr. P.C. may not be entertained.
5. Learned counsel further submits that the Hon'ble Supreme Court in the case reported in (2016) 16 SCC 30 (Prabhu Chawla versus State of Rajasthan and Another) has considered the relative scope of Section 482 and Section 397 of the Cr. P.C. In the said case the concerned High Court had dismissed the petition filed under Section 482 Cr. P.C. by holding that the same was not maintainable in view of availability of remedy under Section 397 of the Cr. P.C. The Hon'ble Supreme Court while considering the scope of Section 397 of the Cr. P.C. and Section 482 of the Cr. P.C. was of the considered view, after inter alia, considering the earlier judgment passed in the case of Madhu Limaye vs. The State of Maharashtra that so far as the inherent power of Section 482 of the Cr. P.C. is concerned, the same cannot be controlled by Section 397 of the Cr. P.C. but it has to be sparingly exercised in such circumstances where there is situation calling for such interference arising out of abuse of the process of law or for the purposes of securing the ends of justice or where the proceeding is without jurisdiction. Learned counsel submits that no such circumstance has been projected in the present case calling for interference under Section 482 of the Cr. P.C.
6. Upon this, learned counsel for the petitioner has submitted that the point regarding sanction having been given by incompetent authority has been raised at para 41 and 42 of the present petition and accordingly in absence of proper sanction by the competent authority or improper appreciation of materials on record by the authority granting sanction, the entire criminal proceeding is an abuse of the process of law calling for interference under Section 482 Cr. P.C. 3 Learned counsel for the petitioner further submits that there cannot be any complete bar in entertaining the petition under Section 482 of the Cr. P.C. when abuse of the power or abuse of the process of law or case of inherent lack of jurisdiction are involved. Accordingly, it cannot be said that the present petition is not maintainable. Learned counsel for the petitioner has relied upon a judgment passed by this court reported in (2014) 1 JCR 36 (Jhr.) and he has referred to para 4,5 and 6 of the said judgment. The said paragraph are quoted for ready reference:-
4. Learned counsel in support of his submission has referred to decisions rendered in cases of Dhariwal Tobacco Products Limited and others vs. State of Maharashtra and another [(2009) 2 SCC 370], Amit Kapoor vs. Ramesh Chandra and another [(2012) 9 SCC 460] as well as in a case of Madhu Limaya vs. State of Maharashtra [(1977) 4 SCC 551] and also in a case of Amar Nath vs. State of Haryana [(1977) 4 SCC 137].
5. On account of the fact that the order under which prayer for discharge was rejected can be corrected by the Court in exercise of revisional power, an objection has been taken by the office over the maintainability of this application filed under Section 482 of the Code of Criminal Procedure. This is the general notion which has been well established. But at the same time, this has also been held by the Hon'ble Supreme Court in number of cases that nothing in the Code can limit or affect the exercise of inherent power by the High Court but that power should be exercised by the High Court sparingly, particularly in a situation which calls for interference to prevent abuse of the process of the court or for the ends of justice.
6. In this regard, I may refer to a decision rendered in a case of Madhu Limaya vs. State of Maharashtra (supra) whereby their Lordships after taking notice of the provision as contained in Section 397 (2) and also under Section 482 of the Code of Criminal Procedure observed at paragraph 10 as under:
"10. As pointed out in Amar Nath case the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding, is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The legislature in its wisdom decided to check this delay by introducing sub- section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, 'shall be deemed to limit or affect the inherent powers of the High Court.' But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem 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 4 no power of revision or relation to any interlocutory order. Than in accordance with one of 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 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 case 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. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and even after his acquittal a second trial, after proper sanction will not be barred on the doctrine of autrefois acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end ? 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 the1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
7. However, during the course of argument learned counsel for the petitioner could not point out any such plea regarding sanction having been taken before the learned court below while passing the impugned order dated 13.02.2019 and further it is also not in dispute that the impugned order has been passed by considering the materials on record.
8. Upon this learned counsel appearing on behalf of the CBI has submitted that absence of sanction, and any illegality or irregularity or incompetence in the matter of grant of sanction for prosecution, stand on totally different footing. In case involving alleged irregularity or incompetence of the authority granting sanction, the same is essential a matter of trial.
9. After hearing counsel for the parties and considering the facts and circumstances of this case, this court finds that it is not in dispute that the revision under Section 397 Cr. P.C. lies against 5 the order refusing to discharge which is impugned before this court in the petition filed under Section 482 Cr. P.C. Accordingly, it is to be examined as to whether any occasion arises before this court to hold that the impugned order or proceedings suffer from any jurisdictional error, or amounts to abuse of process of law or interference is required to secure the ends of justice by exercising powers under Section 482 Cr. P.C.
10.There is no doubt that power under Section 482 Cr.P.C. has to be exercised in rarest of the rare case arising out of abuse of the process of law or for the purposes of securing the ends of justice or where the proceeding is without jurisdiction particularly where remedy of revision under Section 397 Cr. P.C. is available against the impugned order refusing to discharge the petitioner after considering the materials on record. In the case of Madhu Limaye (supra) the Hon'ble Supreme Court exercised power under Section 482 Cr.P.C. by holding that the case at hand undoubted fell for exercise of power under Section 482 Cr. P.C. The law laid down by Hon'ble Supreme Court has been consistently followed by Hon'ble Supreme Court including in the judgement relied upon by the respondent reported in (2016) 16 SCC 30 (Prabhu Chawla versus State of Rajasthan and Another)
11.The Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency Private Limited and Another vs. Central Bureau of Investigation reported in (2018) 16 SCC 299, in para 63 of the judgment ,while considering the provisions of Section 397 and Section 482 of Code of Criminal Procedure has approved the view taken by the Hon'ble Supreme Court in para 38 of the judgment passed in the case of Girish Kumar Suneja versus Central Bureau of Investigation reported in (2017) 14 SCC 809. Para 38 of the judgment in the case of Girish Kumar Suneja (supra) is quoted hereinbelow for ready reference:-
"38. The Criminal Procedure Code is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under 6 Section 397(2) CrPC is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 CrPC is to be exercised only in respect of interlocutory orders to give effect to an order passed under the CrPC or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Criminal Procedure Code restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues."
12. The aforesaid view, has been further held to be the correct view, in the Judgment reported in (2018) 16 SCC 299 para 63 which is quoted as follows:-
"63.According to us, despite what is stated in paras 25, 29 and 32 supra, the ratio of the judgment is to be found in para 38, which is an exposition of the law correctly setting out what has been held earlier in Madhu Limaye A judgment has to be read as a whole, and if there are conflicting parts, they have to be reconciled harmoniously in order to yield a result that will accord with an earlier decision of the same Bench strength. Indeed, para 30 of the judgment sets out a portion of para 10 of Madhu Limaye, showing that the Court was fully aware that Madhu Limaye did not approve Amar Nath without a very important caveat -- and the caveat was that nothing in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. We, therefore, read para 38 as the correct ratio of the said judgment not only in terms of the applicability of Section 482 of the Code of Criminal Procedure, but also in terms of how it is to be applied."
13.In view of the aforesaid judicial pronouncements, there can be no doubt that power under Section 482 Cr. P.C. is to be exercised only in rarest of rare cases arising out of abuse of the process of law or for the purposes of securing the ends of justice or where the proceeding is without jurisdiction. This court is of the considered view that when a remedy under the Code of Criminal Procedure of revision under Section 397 is available, there is no reason to exercise power under Section 482 of Cr. P.C. as the petitioner has not been able to show that this case is arising out of abuse of the process of law or calls for interference for the purposes of securing the ends of justice or the proceeding is without jurisdiction while challenging the order refusing to discharge the petitioner. Admittedly the 7 point regarding competency of sanctioning authority granting sanction for prosecution was never raised by the petitioner before the learned court below and accordingly this court is of the considered view that the point cannot be agitated for the first time in the proceeding under Section 482 Cr. P.C. In such circumstances, this court is not inclined to entertain this petition and grant any relief to the petitioner under Section 482 of the Cr. P.C. Accordingly, this petition is dismissed.
14. However, since the order refusing to discharge has not been considered by this court on merits, it is open to the petitioner to challenge the same in accordance with law.
15. Let this order be communicated to the court concerned through FAX.
(Anubha Rawat Choudhary, J.) Binit/