Uttarakhand High Court
Harsh Kapoor And Others vs Smt. Komal Kapoor on 21 August, 2013
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 842 of 2013
Harsh Kapoor and others ..............Petitioners.
versus
Smt. Komal Kapoor ..................Respondent.
Present: Mr. Harshit Pant, Advocate for the petitioners.
None for the respondent.
Mr. K.S. Rautela, AGA for the State.
Hon'ble Alok Singh, J. (Oral)
Petitioners have invoked inherent jurisdiction of this Court, under Section 482 of Code of Criminal Procedure, assailing the summoning order dated 03.08.2013, passed by Judicial Magistrate, Ramnagar (Nainital) whereby petitioner nos. 1, 2, 3 & 4 were summoned under Section 312 & 498-A IPC and under Sections ¾ of Dowry Prohibition Act while petitioner no.5 was summoned under Section 498-A IPC and under Section ¾ Dowry Prohibition Act, passed under Section 204 of the Criminal Procedure Code.
Hon'ble Apex Court in a recent judgment, in the case of Mohit alias Sonu and another vs. State of Uttar Pradesh and another AIR 2013 SC, 2248 in paragraph nos, 23, 24, 25, 26 & 27 have held as under:
23. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions.
However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of 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 2 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 order impugned can be challenged.
24. Courts possess inherent power in other statute also like the Code of Civil Procedure (C.P.C.) Section 151 whereof deals with such power. Section 151 of C.P.C. reads:-
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court."
25. This Court in the case of Padam Sen & Anr. v. State of Uttar Pradesh, AIR 1961 SC 218 regarding inherent power of the Court under Section 151 C.P.C. observed:-
"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict what has been expressly provided in the Code or against the intentions of the Legislation. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
26. In a Constitution Bench decision rendered in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, this Court held that :-
"The inherent jurisdiction of the Court to make orders ex debito justiciae is undoubtedly affirmed by S.151 of the Code but inherent jurisdiction cannot be exercised so as to 3 nullify the provision of the Code of Civil Procedure. Where the Code of Civil Procedure deals expressly with a particular matter, the provision should normally be regarded as exhaustive."
27. The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis-à-vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482, Cr.P.C. or Section 151, C.P.C. cannot and should not be resorted to.
In view of the dictum of the Hon'ble Apex Court, in the case of Mohit (Supra) inherent power of the Court under Section 482 of the Code of Criminal Procedure should not be permitted to be invoked when there is specific remedy provided under the Code of Criminal Procedure for redressal of the grievance.
Mr. Harshit Pant, learned counsel for the petitioners, while placing reliance on the judgment of the coordinate Benches of this Court in the case of Garhwal Mandal Vikas Nigam Ltd. vs. Mata Garg & Co., reported in 2011(3), Uttaranchal Decisions, page 1666 and in the case of Manoj Kumar Miglani vs. State of Uttarakhand, Criminal Misc. Application No. 193 of 2007, decided on 06.10.2012 vehemently argued that criminal revision is not maintainable against the summoning order passed by learned Magistrate, since order issuing summon is a interlocutory order. Therefore, petitioners have invoked inherent jurisdiction of this Court under Section 482 of the Code.
I have carefully examined both the judgments, relied upon by learned counsel for the petitioners, passed by two different coordinate Benches of this Court. In both the judgments, coordinate Benches of this Court have placed reliance on the judgments of three Judges Bench of the Hon'ble Apex Court in the case of Adalat 4 Prasad vs. Rooplal Jindal and others, 2004 (7) SCC, 338, and in the case of Subramanium Sethuraman vs. State of Maharashtra and another 2004(13) SCC, 324.
In the case of Adalat Prasad (Supra) the question involved was as to whether ratio of the judgment of the Hon'ble Apex Court in the case of K.M. Mathew vs. State of Kerela and another 1992 (1) SCC, 217, that after issuance of summons under Section 204 of the Code, it was open to the Magistrate on being satisfied at the instance of summoned accused to reconsider its decision of issuing summons under Section 204, was correct?
In the case of Adalat Prasad (Supra) in paragraph nos. 16 & 17, Hon'ble Apex Court has held as under:
16. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an erroneous order issuance of process, no specific provision of law is required, would run counter to the Scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew case that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down, the correct law.
17. In view of our above conclusion, it is not necessary for us to go into the question whether order issuing a process amounts to an interim order or not.
As per the observation made in paragraph no. 17 in the Adalat Prasad case, three judges Bench of the Hon'ble Apex Court did not enter into the question as to whether order issuing a process amounts to an interim order or amounts to intermediate or quasi final order.
In the case of Subramanium Sethuraman (Supra) Hon'ble Apex Court in para 17 has held that aggrieved person can challenge 5 an order in interlocutory stage under Section 482 of the Code of Criminal Procedure and not by way of application to recall.
In my considered opinion, neither in the case of Adalat Prasad (Supra) nor in the case of Subramanium Sethuraman (Supra), Hon'ble Apex Court has considered the question as to whether order issuing the process or summoning order would be interlocutory order or would amount to intermediate order or quashi final order. Nor question of maintainability of criminal revision under Section 397 of the Code against the order passed by the Magistrate to issue process of summon was raised nor Hon'ble Apex Court had occasion to consider the same nor considered. Observations of Hon'ble Apex Court that interlocutory order can be challenged under Section 482 of the Code should not be construed to mean that summoning order would be interlocutory order.
Hon'ble Apex Court in the case of Rajendra Kumar Sitaram Pande and others vs. Uttam and another reported in (1999) 3 SCC, 134. In paragraph 6 has held as under:
Under sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression "interlocutory order"
has not been defined in the Code. In Amar Nath v. State of Haryana (1977) 4 SCC 137 this Court has held that the expression "interlocutory order" in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". In Madhu Limaye v. State of Maharashtra (1997)4 SCC 551 a three-Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular 6 proceeding, cannot be held to be an interlocutory order. In V.C. Shukla v. State 1980 Supp SCC 92 this Court has held that the term "interlocutory order" used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code.
Hon'ble Apex Court in the case of Om Kumar Dhankar vs. State of Haryana and another reported in 2012 (11) SCC, 252, in paragraph nos. 9 & 10 has held as under:
9. In Rajendra Kumar Sitaram Pande case (1999) 3 SCC 134, this Court considered earlier decisions of this Court in Madhu Limaye Vs. State of Maharashtra, (1977) 4 SCC 551, V.C. Shukla Vs. State, 1980 SCC (Cri) 695, Amar Nath Vs. State of Haryana, (1977) 4 SCC 137 and K.M. Mathew Vs. State of Kerala, (1992) 1 SCC 217 and it was held as under :-
(Rajendra Kumar case, SCC p.137, para 6) "6... This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under subsection (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, 7 therefore, the revisional jurisdiction under Section 397 could be exercised against the same."
10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 Cr.P.C. was available to respondent No. 2 in challenging the order of the Magistrate directing issuance of summons.
In the case of Om Kumar Dhankar (Supra) and Rajendra Kumar Sitaram Pande (Supra) Hon'ble Apex Court specifically held that order directing issuance of process is not a purely interlocutory order rather it must be held to be intermediately or quasi final order, therefore, revision under Section 397 of the Code would be maintainable. In my considered view, ratio in the case of Rajendra Kumar Sitaram Pande (Supra) and Om Kumar Dhankar (Supra) is not contrary to the ratio in the case of Adalat Prasad (Supra) or in the case of Subramanium Sethuraman (Supra).
It seems that in the case of Garhwal Mandal Vikas Nigam (Supra) and in the case of Manoj Kumar Miglani (Supra) judgment of Hon'ble Apex Court in the case of Rajendra Kumar Sitaram Pande (Supra) was not cited. In the case of Rajendra Kumar Sitaram Pande (Supra) Hon'ble Apex Court has discussed earlier decisions in the case of Amar Nath vs. State of Haryana, reported in (1997) 4 SCC 137, Madhu Limaye vs. State of Maharashtra, reported in (1997)4 SCC 551, V.C. Shukla vs. State, reported in (1990) Supp. SCC 92. In my considered opinion, had judgment of Rajendra Kumar Sitaram Pande (Supra) been cited, coordinate Benches of this Court would have not taken contrary views.
Judicial discipline require that coordinate Bench must follow decision of another coordinate Bench unless for the reasons recorded same is referred to the larger Bench for re-consideration. Coordinate Bench cannot overrule or ignore judgment passed by another coordinate Bench. However, there is a caveat to it. If decision of previous coordinate Bench is found to be contrary to the decision of 8 larger Bench of the same Court or contrary to the decision of Hon'ble Apex Court then of course, same can be held to be per incuriam.
With all due respect to my esteemed brother Judges, [Justice B.S. Verma and Justice U.C. Dhyani], who have rendered judgments in the cases cited by learned counsel for the petitioner, I hold that both these judgments are contrary to judgments passed by Hon'ble Apex Court in the case of Rajendra Kumar Sitaram Pande (Supra) and in the case of Om Kumar Dhankar (Supra), therefore, both are per incuriam and do not lay down correct law.
In view of the discussion herein above, a criminal revision is maintainable under Section 397 of the Code of Criminal Procedure before the Sessions Judge against the impugned order issuing process of summon. Therefore, I am no inclined to entertain this petition under Section 482 of the Code of Criminal Procedure. Consequently, petition is dismissed. However, it would be open to the petitioners to challenge the impugned summoning order before learned Sessions Judge by way of filing criminal revision under Section 397 of the Code of Criminal Procedure. In the event of filing such revision, same shall be decided at its own merit, in accordance with law.
Let copy of this judgment be forwarded to all the Sessions Judges and Additional Sessions Judges posted in this State, for information.
(Alok Singh, J.) 21.08.2013 Sanjay