Andhra HC (Pre-Telangana)
K.L. Venkateswar Rao vs State Of A.P. And Anr. on 14 October, 2003
Equivalent citations: 2003(2)ALD(CRI)963, 2003(2)ALT(CRI)503, III(2004)BC99
ORDER A. Gopala Reddy, J.
1. All these Criminal Petitions are being dealt with under a common order since issue requires to be adjudicated in all the petitions is similar.
2. The brief facts which are necessary for disposal of these criminal petitions, in nutshell, are as under:
3. The second respondent in Crl. P. Nos. 821 and 822 of 1999 and petitioner in Crl. P. No. 4915/2001 and Crl. P(SR) No. 17155/2001 filed two complaints for the alleged offence under Sections 138 and 142 of Negotiable Instruments Act, 1881 (for short "the Act") with regard to bouncing of cheques in CC Nos. 851/96 and 901/96 respectively before IV Metropolitan Magistrate, Hyderabad. Learned Magistrate by his order dated 21.8.1997 passed the following order, separately, in both CCs"
"Complainant absent. Accused present. No representation from the Complainant in spite of the matter coming for trial. Hence Complaint dismissed for default and accused acquitted."
Aggrieved by the said acquittal, the complainant filed Crl. Nos. 4353/97 and 4354/97 for restoring CC Nos. 851/96 and 901/96 respectively stating that he suddenly fell ill by getting giddiness while coming to the Court and after getting treatment he attended the Court at 12 noon, by which time cases were called and complaints were dismissed under Section 256, Cr. P.C., and Counsel for the complainant could not represent the case at the time of call work as he was engaged in 1st Court of A.P. Administrative Tribunal, Hyderabad and non-appearance of the complainant and no representation by the Counsel for the complainant is neither wilful nor negligence. On contest by the accused, the learned Magistrate allowed the said petitions on 25.9.1997 with the following order:
"Counter filed. Heard. Perusing the observation of His Lordship A.S. Bhate, J. in 1997(1) ALD Crl. 496 (AP) on similar facts. In the light of the observations in the above citation petition allowed, set aside the dismissal order dated 21.8.1997 CC No. 851/96 restored to file to dispose it on merits according to law."
On such restoration, it appears the matter underwent several adjournments from time-to-time. Docket proceedings would also show the complainant was absent even after restoration of cases and at sometimes both parties requested for adjournment. In the meanwhile accused filed Crl. P. Nos. 821/99 and 822/99 challenging the order passed by the learned Magistrate dated 25.9.1997 in allowing Crl. M.P. Nos. 4353/97 and 4354/97 respectively contending that once the complaints are dismissed for default recording acquittal of the accused, the Magistrate cannot review his own order and the only remedy available to the petitioner is to file an appeal. The order passed by the Magistrate is without jurisdiction and illegal and is liable to be set aside. Realising that the order passed by the Magistrate cannot be sustainable, the complainant filed Crl. P. No. 4915/2001 and Crl. P. (SR) No. 17155/2001 under Section 482, Cr. P.C., on 6.11.2001 nearly after 2 years 5 months after service of notice and on entering his appearance in Crl. P. Nos. 821 and 822 of 1999. The Office by mistake number Crl. P. No. 4915/2001 but raised an objection in Crl. P. (SR) No. 17155/2001 about the maintainability of the petition. Since against the order passed by the learned Magistrate dismissing the complaint acquitting the accused, appeal lies to the High Court and appeal can be filed with special leave under Section 378(4) and since there is delay of 4 years a petition under Section 5 of Limitation Act can be filed.
4. Learned Counsel for the petitioner-accused in Cr. P. Nos. 821 and 822 of 1999 contends that once the Magistrate dismissed the complaints and acquitted the accused, he will not have any jurisdiction to review his order and restore CCs to his file, which is per se illegal and the same cannot be sustainable. In support of his contention he placed reliance on the following judgments:
1. Shaik Bande Ali v. State of Andhra Pradesh, 2000(1) ALD (Crl.) 512 (AP).
2. Hari Singh Mann v. Harbhajan Singh Bajwa and Ors., IV (2000) CCR 188 (SC)=VII (2000) SLT 693=2001(1) ALD (Crl.) 33 (SC).
3. A.S. Gauraya v. S.N. Thakur, 1986 Crl. L.J. 1074.
4. State of Orissa v. Ram Chander, .
5. Bindeshwari Prasad v. Kali Singh, .
Sub-section (5) of Section 378, Cr.P.C., envisages since no application under, Sub-section (4) for grant of special leave to appeal from an order of acquittal after expiry of six months shall be entertained, petitions filed by the complainant nearly after four years three months cannot be entertained and they are liable to be dismissed.
5. Learned Counsel for the petitioner/complainant in Crl. P. No. 4915/2001 and Crl. P. (SR) No. 17155/2001 contended that since the order dated 21.8.97 passed by the Magistrate was by mistake since the complainant was present in the call work but when the second lime it was called, he went out to bring his advocate. He filed restoration applications on the same day which were rightly restored by the Magistrate following the law declared by this Court in R.S. Sundara Raju v. Sri Tirrumala Finance and Investments, (supra), but the contention of the learned Counsel in support of restoration is contrary to the plea taken for restoration of CCs and also pleadings in Crl. P. No. 4915/2001 and Crl. P. (SR) No. 17155/2001.
6. Learned Senior-Counsel Mr. C. Padmanabha Reddy appearing for the complainant in CrI. P. Nos. 821 and 822 of 1999 fairly submitted that ratio laid down in the case of R.S. Sundara Raju (supra) will not be applicable to the facts of the present case. But having regard to the fact that complaints were dismissed for default acquitting the accused since the complainant filed criminal petitions the same may be treated as appeals as treated by this Court in Crl. P. No. 3213/99 dated 11.12.2001 on identical facts and the impugned orders passed by the learned Magistrate dated 21.8.1997 can be set aside and remand the matter to the Trial Court for fresh disposal in the interest of justice.
7. The various contentions urged on behalf of the petitioners in the light of statutory provisions as referred to above can conveniently be brought under the following heads:
(i) Whether the complaint which is dismissed under Section 256, Cr.P.C., recording acquittal of the accused will entail the Magistrate to restore the said complaint to its file or not?
(ii) When once the appeal lies to the High Court against the order of acquittal with special leave, petition filed under Section 482, Cr.P.C., to set aside the dismissal order acquitting the accused can be entertained even after 4 years 3 months?
8. Point No. 1: This Court in the case of Shaik Bade Ali (supra) while considering the power of High Court to annul, modify, review or correct he judgment after pronouncing the same in the Court before the transcript is signed by the Judge held that the power of the High Court is in no way limited or effected by Section 362 of the Code of Criminal Procedure, 1973 and mere pronouncement of judgment in a criminal case in the open Court without signing the script would not operate as a bar before the judgment is transcribed and actually signed by the judgment in the open Court.
9. The Apex Court in Hari Singh Mann (supra) while considering the power of the High Court under Section 482 of the Code of Criminal Procedure to entertain the miscellaneous petitions after the case is disposed of on merits held that no review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7.1.99 there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of Code of Criminal Procedure or the rules of the Court, cannot be resorted to as a substitute of fresh litigation. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the Court. After referring to various judgments, the Apex Court further held as follows:
"10. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error...."
10. The Apex Court in the case of A.S. Gauraya (supra) while considering the power of Magistrate in dismissing the complaint for nonappearance of the complainant discharging/acquitting the accused in the absence of any specific provision in the Code held as under:
"9. Section 249 of the Criminal Procedure Code enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. Section 256(1) of the Criminal Procedure Code enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by a Criminal Court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complainant and proceed with it when an application is made by the complainant to revive it. A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar; filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal Procedure Code does not contain any provision enabling the Criminal Court to exercise such an inherent power."
The Supreme Court further held that all subsequent proceedings following upon recalling the said order, would fall to the ground including order summoning the accused which must also be treated to be a nullity and destitute of any legal effect.
11. In State of Orissa v. Ram Chander (supra) the High Court of Orissa disposed of criminal references filed by the State enhancing sentence of fine of Rs. 2000/- to one of rigorous imprisonment for six months and the firms paid fines but the persons who were awarded substantive sentence of imprisonment filed criminal miscellaneous petitions before High Court for review of its order, which was accepted by the High Court and recalled its previous judgment imposing substantive sentence of six months rigorous imprisonment on the petitioners but imposed a fine of Rs. 3900/- at the rate of Rs. 1300/-for each of the offence on each of the petitioners. On further appeal by the State, the Supreme Court after considering various judgments allowed the appeal holding that High Court has no power to review its own order passed earlier.
12. Similarly the Supreme Court in Bindeshwari Prasad v. Kali Singh (supra) held that there is no provision in Criminal Procedure Code empowering the Magistrate to review or all a judicial order passed by him and inherent powers under Section 482 are only given to High Court and unlike Section 151, CPC subordinate Courts have no inherent powers.
13. In view of the law declared by the Apex Court as referred to above, I hold that the Magistrate committed patent illegality in setting aside the dismissal order dated 21.8.97 dismissing the private complaints and acquitting the accused and in restoring CC No. 851/96 and CC No. 901/96 to its file, as the Magistrate will not have any inherent jurisdiction to review or recall the said order. The impugned order is accordingly set aside. Point No. 1 is accordingly answered.
14. Point No. 2 : Learned Senior Counsel Mr. C. Padmanabha Reddy contends that if the dismissal order allowed to stand would result injustice to the complainant and will yield no remedy and this Court can convert the petition as appeal and can set aside the order passed by the Magistrate dated 21.8.1997 to meet the ends of Justice.
15. It is not in dispute that against any order passed by the Magistrate acquitting the accused, the complainant can file an appeal with special leave to file an appeal from the order of acquittal. Sub-section (5) of Section 378 clearly mandates that no such application under Sub-section (4) for grant of special leave to appeal against order of acquittal shall be entertained by the High Court after expiry of six months where the complainant is a public servant and 60 days in every other case, computed from the date of that order of acquittal. Since the present petitions filed by the complainant nearly after 4 years 3 months if entertained and converted into appeals on acquittal in exercise of inherent jurisdiction under Section 482, Cr.P.C., the same will result in taking away the valuable right accrued to the accused.
16. It is fairly well settled that the main factor which would influence the Court in extending the benefit of Section 14 of the Limitation Act, 1963 to a litigant is whether the prior proceeding had been prosecuted with due diligence and 'good faith'. The expression 'good faith' as used in Section 14 means 'exercise of due care and attention'. In the context of Section 14, the expression 'good faith' qualifies prosecuting the proceedings in the Court which ultimately found to have no jurisdiction.
17. In view of the above, the present criminal petitions filed by the complainant beyond the period prescribed for filing the appeals, i.e., nearly after 4 years 3 months, if treated as appeals, a question may arise his filing of criminal petitions for restoring the CCs by setting aside the dismissal order are with due diligence and 'good faith.' Even if the answer is in the affirmative, further question may arise, once the order passed by the Magistrate is challenged as nullity in Crl. P. Nos. 821 and 822 of 1999 what made the petitioner to wait for nearly 2 years 5 months in challenging the dismissal order under Section 482, Cr.P.C., after his entering appearance in the above petitions is not forthcoming. The complainant did not choose to act promptly to exercise his right of appeal, thereby abandoned that right. In such view of the matter, this Court is of the considered view the right accrued to the accused on extinguishment of complainant's right cannot be taken away by converting the criminal petitions into appeals. This view of mine is also supported by the judgment of Supreme Court in Dwarka Dass v. State of Haryana, VI , wherein it was held as under:
"13. Needless to remind ourselves that the criminal jurisprudence of the country proceeds on the basis that a person is innocent and the burden rests on the prosecution to prove beyond all reasonable doubts as regards the guilt of the accused persons. It is with this background that the Code of Criminal Procedure has conferred on to the hierarchy of the Courts specific powers to deal with the matter as it seems just and proper. The words "just and proper" used herein do not, however, mean and imply an arbitrary exercise of power--powers are circumscribed and have to be exercised in accordance with the provisions of law and not de hors the same. Even discretionary powers shall have to be exercised in a manner and in consonance with the known principles of law and not otherwise -- the State Government has been directed to file an appeal much beyond the period of limitation: what about the rights of an accused for presentation of appeal beyond the period of limitation--while it is true an appeal barred by limitation does not confer a right but it amounts to extinguishment of a right. In criminal jurisprudence, however, extinguishment of right confers a benefit to an accused and it is in this perspective further question would arise as to whether the High Court would be within its jurisdiction to take away such a benefit as conferred by reason of extinguishment of right. The answer cannot possibly be in the negative."
18. It is well settled that the Code of Criminal Procedure contemplates a right of appeal to the complainant circumscribed by limitation to be filed within 60 days from the date of acquittal. When substantive right of appeal is provided to the High Court with special leave, petition under Section 482, Cr.P.C., is misconceived, and the inherent power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of the aggrieved party. (See: State v. Navjot Sidhu, , and Madhu Limaye v. State of Maharashtra, ).
19. For the foregoing reasons, the submission made by the learned Senior Counsel for conversion of criminal petitions into appeals as was done by this Court in Crl. P. 3213/99 does not commend acceptance by this Court since the order made therein remanding the matter with certain direction on the facts and for the purpose of the said case, cannot have the value or effect of any binding precedent, as no principle of law is enunciated therein and will be applicable to the facts of that case only.
In the result, Crl. P. Nos. 821 and 822 of 1999 are allowed and Crl. P. No. 4915/2001 and Crl. P. (SR) No. 17155/2001 are accordingly dismissed.