Madhya Pradesh High Court
Mayank Sharma vs Vishal Sharma on 4 January, 2018
THE HIGH COURT OF MADHYA PRADESH
MP-1610-2017
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(MAYANK SHARMA Vs VISHAL SHARMA)
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Jabalpur, Dated : 04-01-2018
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Shri Amitabh Gupta, learned counsel for the petitioner.
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Shri Vipin Yadav, learned counsel for the respondent.
Heard on admission.
a hy This petition has been filed by the petitioner/ accused under Article 227 of the Constitution of India against the order dated ad 29.11.2017 passed by the Judicial Magistrate First Class, Bhopal M in RCT/9808370/2012 whereby the petitionerâs application under Section 91 of Cr.P.C. for production of income tax return of of the complainant has been rejected.
rt In brief the facts of the case are that a private complaint under ou Section 138 of the Negotiable Instruments Act has been filed by the respondent against the petitioner in the Court of JMFC Bhopal C wherein the petitioner has filed an application under Section 91 of h Cr.P.C. with a prayer that the complainant be directed to produce ig the income tax returns for the year 2011-12 and 2012-13, as the H defence of the accused is that the complainant had no money to pay him and has made a false admission in his statement before the Court that he had received Rs.6,40,000/- as income. Thus in order to ascertain proper income of the petitioner, the aforesaid income tax returns have been sought in his defence. Learned counsel for the petitioner has vehemently argued before this Court and has submitted that the learned JMFC has erred in dismissing the petitionerâs application and has not exercised jurisdiction properly. In support of his contention, learned counsel for the petitioner has relied upon the judgment of the Honâble Apex Court in the case of Laxmi Dyechem Vs. State of Gujara and others, reported in (2012) 13 SCC 375.
sh On the other hand, learned counsel for the respondent has submitted that present petition under Article 227 of the e ad Constitution of India is not maintainable and is liable to be dismissed at the thresh hold only as the matter relates to the Pr proceeding of the Criminal Court wherein the petitionerâs a application under Section 91 of Cr.P.C has been dismissed.
hy Against the aforesaid order, the petitioner has a remedy under the ad Cr.P.C. by way of criminal revision or a petition under Section 482 of Cr.P.C. and without availing the same, the petitioner has filed M the present petition under Article 227 of the Constitution of India, of which is not maintainable. It is further submitted that even on merits the petitioner has no case, as the complainant in his cross rt examination has admitted that he has not shown Rs.6,40,000/- as ou his income in the income tax returns, hence there was no occasion C for the trial Court to summon the aforesaid documents. In support h of his contention, learned counsel for the respondent has relied ig upon the judgment of the Honâble Apex Court in the case of H Om Prakash Sharma Vs. Central Bureau of Investigation, Delhi, reported in AIR 2000 SC 2335. Having heard the learned counsel for the parties and perused the record, it is apparent that the present case has arisen out of a criminal case filed under Section 138 of the Negotiable Instruments Act. It is a settled law that the powers under Article 227 of the Constitution of India can be invoked only when the powers are exercised by the District Courts without jurisdiction or in excess their jurisdiction. Reference may be made to the judgments rendered by the Apex Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, the relevant para 49 is reproduced as under:-
sh â49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of e High Courtâs jurisdiction under Article 227 of the ad Constitution may be formulated:
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(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under a these two articles is also different.
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(b) In any event, a petition under Article 227 ad cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is M substantially different from the history of conferment of the power of superintendence on the High Courts of under Article 227 and have been discussed above.
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(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under ou Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, C in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to h it. In cases where an alternative statutory mode of ig redressal has been provided, that would also operate H as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh 4 and the principles in Waryam Singh 4 have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh 4 , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and sh courts subordinate to it, âwithin the bounds of their authorityâ.
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(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which Pr is vested in them and by not declining to exercise the jurisdiction which is vested in them.
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(g) Apart from the situations pointed in (e) and (f), hy High Court can interfere in exercise of its power of superintendence when there has been a patent ad perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and M manifest failure of justice or the basic principles of natural justice have been flouted.
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(h) In exercise of its power of superintendence rt High Court cannot interfere to correct mere errors of law or fact or just because another view than the one ou taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to C be very sparingly exercised. h
(i) The High Courtâs power of superintendence ig under Article 227 cannot be curtailed by any statute. H It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India21 and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Courtâs power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Courtâs jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
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(l) On a proper appreciation of the wide and e unfettered power of the High Court under Article ad 227, it transpires that the main object of this article is to keep strict administrative and judicial control by Pr the High Court on the administration of justice within its territory.
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(m) The object of superintendence, both hy administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire ad machinery of justice in such a way as it does not bring it into any disrepute. The power of interference M under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a of halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in rt the functioning of the tribunals and courts subordinate to the High Court. ou
(n) This reserve and exceptional power of judicial C intervention is not to be exercised just for grant of relief in individual cases but should be directed for h promotion of public confidence in the administration ig of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. H Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.â As also in the case of TGN Kumar Vs. State of Kerala, reported in (2011) 2 SCC 772, the relevant paras 13 and 14 are reproduced as under:-
13. Similarly, while it is true that the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in sh order to keep the subordinate courts within the bounds of their authority. In any event, the power of e superintendence cannot be exercised to influence the ad subordinate judiciary to pass any order or judgment in a particular manner.
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14. In Jasbir Singh v. State of Punjab10 this Court a observed that: (SCC p. 301, para 14) hy â14. So, even while invoking the provisions of Article 227 of the Constitution, it is provided that ad the High Court would exercise such powers most sparingly and only in appropriate cases in order to M keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals of does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The rt independence of the subordinate courts in the ou discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial C functions. It is the members of the subordinate h judiciary who directly interact with the parties in the course of proceedings of the case and therefore, ig it is no less important that their independence H should be protected effectively to the satisfaction of the litigants.â (emphasis supplied) Applying the aforesaid principles to the facts of the present case it becomes clear that it has been passed by the learned JMFC in exercising of its jurisdiction and merely if an application under Section 91 of Cr.P.C. has been dismissed, it cannot be said that the learned Judge exceeded his jurisdiction or has not exercised his jurisdiction properly. Even on merits this Court finds that no illegality has been committed by the learned trial Judge while dismissing the petitionerâs application under Section 91 of Cr.P.C. Otherwise also instead of availing other remedies sh available to the petitioner under Cr.P.C., the petitioner, by by-
passing the aforesaid remedies, has filed this petition under e ad Article 227 of the Constitution of India, which in the considered opinion of this Court is not maintainable.
Pr So far as the aforesaid judgment cited by the learned counsel for a the petitioner in the case of Laxmi Dyechem (supra) is hy concerned, the facts of the same are distinguishable and is of no ad help to the petitioner in the present facts and circumstances of the case.
M In the circumstances, the petition being wholly misconceived is of liable to be and is hereby dismissed with a cost of Rs.1000/- to be paid by the petitioner to the District Legal Services Authority, rt Bhopal and its receipt be also submitted before the trial Court on ou the next date of hearing.
C A copy of this order be also sent to the concerned trial Court for h necessary compliance.
ig H (SUBODH ABHYANKAR) JUDGE Digitally signed by MANZOOR AHMED Date: 2018.01.08 01:20:46 -08'00' Ansari