Patna High Court
Chandra Kalia Devi vs The State Of Bihar And Anr. on 29 March, 1979
Equivalent citations: 1980CRILJ329
ORDER Muneshwari Sahay, J.
1. This application is directed against an order of the Chief Judicial Magistrate, Nalanda dated 30-3-1976 by which the learned Magistrate restored complaint case No. 301 (C) of 1975 which he had dismissed earlier,
2. The relevant fact's for the purpose of this case are shortly these. On 13th of July, 1974 Chaukidar Hari Paswan gave an information at Silao (Nalanda) Police Station that' at 9 P. M. he heard that a dead body was lying in village Nirpur. The Assistant Sub-Inspector of Police and some others went to village Nirpur and recovered a headless dead body from the river. One Sheo Pd, Singh submitted a written report at Silao Police Station on the basis of which a first information report under Section 302/201 of the I. P. C. was drawn up against unknown persons. During the investigation it' transpired at first that the dead body was that of one Kapendra Singh, but after some time the said Kapendra Singh appeared before the police. Subsequently it was alleged that the dead body was that of Sheobalak Chamar, brother of opposite party No. 2, Saufehi Chamar. On 14-8-1975 the Police submitted final report in the case to .the effect that the case, was true but there was insufficient evidence.
3. Saukhi Charnar had filed a! protest petition before the learned Magistrate on 28-10-1975. We are not very much concerned with this protest petition as on the same date namely 28th October, 1975 Saukhi Chamar filed a regular complaint petition before the Chief Judicial Magistrate naming six persons including the petitioner as accused in the case. He alleged that there was illicit connection between one Hari Narain and wife of the deceased and it was because of that that the offence had been committed. Saukhi Chamar alleged that Hari Narain and others had taken away Sheobalak from his home and Sheobalak was not seen thereafter alive. Saukhi Chamar was examined on solemn affirmation on 29-10-1975. The learned Chief Judicial Magistrate directed the complainant to produce witnesses before him. It is alleged that two witnesses were produced on 12-12-1975 and the complainant also produced witnesses on 10-2-1976 but these witnesses were not examined. Thereafter, Saukhi Chamar failed to produce the witnesses before the learned Magistrate on several succeeding dates. On 30th of July, 1977, therefore, the learned Magistrate passed an order dismissing the complaint.
4. Complainant Saukhi Chamar thereafter filed a petition that the accused persons including the petitioner be committed to the Court of Session on the basis of the statements recorded under Section 164 of the Cr. P. C. during the investigation of the police case. The learned Chief Judicial Magistrate, Nalanda, passed the following order on 30-8-1976:
This is a petition for restoration of the complaint case, it is said that a petition was filed in this case, but was tagged with the Police case of the same occurrence. Therefore, the complaint was ordered to be dismissed due to absence of the complainant. There appears to be a bona fide mistake therefore, the complaint is ordered to be restored. Put upon 17-9-1976 for further order.
The petitioner thereafter moved the learned Sessions Judge, Patna, in revision against the order of the learned Magistrate. The learned Sessions Judge dismissed the revision application on 5-3-1977. The petitioner, thereafter, has filed the present application under Section 482 of the Cr. P. C. for quashing the order of the learned Magistrate i.e. the order restoring the complaint.
5. Learned Counsel for the petitioner has submitted that the order of the learned Magistrate restoring the complaint was without jurisdiction inasmuch as the Code did not empower him to recall his order and the Supreme Court has held in the case of Bindeshwari Prasad Singh v. Kali Singh that the Magistrate had no inherent jurisdiction in exercise of which he could recall the order.
6. Learned Counsel for the opposite party has raised a preliminary objection regarding the maintainability of the present application. It is submitted that in effect the application is one under Section 397 of the Cr. P. C. although it has been labelled as one under Section 482 of the Cr. P. C, Learned Counsel has referred to Sub-section (3) of Section 397 which says 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 either of them."
Learned counsel submits that admittedly the petitioner had moved the learned Sessions Judge in revision against the order of the learned Magistrate under Section 397 of the Code, therefore, the petitioner cannot after his application had been dismissed invoke the jurisdiction of this Court to interfere with the order of the learned Magistrate.
7. Learned Counsel has referred me in this connection to the decision of the Supreme Court in the case of Jagir Singh v. Ranbir Singh . The Supreme Court was considering the object and the scope of Section 397 (3) of the Cr. P. C. His Lordship Chinnappa Reddy, J. who spoke for the Court said:
The object of Section 397 (3) is clear. It is to prevent a multiple exercise of re-visional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court' and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority. The language of Section 397 (3) is clear and peremptory and it does not admit of any other interpretation....
His Lordship went on to say:
In order to cross the hurdle imposed by Section 397 (3) it was suggested that the revision application before the High Court could be treated as an application directed against the 'order of the Sessions Judge instead of as one directed against the order of the Magistrate. We do not think that it 'is permissible to do so. What may not be done directly cannot be allowed to be done indirectly; that would be an evasion of the statute. It' is a well known principle of law that "the provisions of an Act of Parliament shall not be evaded by shift or contrivance" - When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397 (3) 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.
8. In the instant case as well the petitioner had moved the learned Sessions Judge against the order of the learned Magistrate and having failed there she has come to this Court for the same relief, namely, for setting aside the order of the learned Magistrate. In effect' the petitioner seeks to invoke the revisional jurisdiction of this Court, although she has labelled her petition as one under Section 482 of the Cr. P. C. The law does not permit her to circumvent the law by changing the label of her petition, I am also doubtful if the petitioner could invoke the inherent jurisdiction of this Court in this matter. The law is well settled that inherent jurisdiction of the Court cannot' be exercised as against the express bar of law engrafted in any other provision of the Code. The bar in the instant case has been provided under Sub-section (3) of Section 397 of the Code. Therefore, I think that' the petitioner cannot invoke the inherent jurisdiction of this Court for the relief claimed by her. Accordingly this application is dismissed as not' maintainable.