Delhi High Court
Chander Bose vs Ved Prakash & Ors. on 2 February, 2009
Author: Mool Chand Garg
Bench: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. 204/2004
% Reserved on : 23.01.2009
Date of decision : 02.02.2009
CHANDER BOSE ... Appellant
Through: Mr. Harish Kr. Mehra, Adv.
Versus
VED PRAKASH & ORS. ...Respondents
Through: Mr. Hitender K. Nahata, Ms. Sarika
Garg, Advs. for the respondents.
Ms. Santosh Kohli, APP for State
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
MOOL CHAND GARG, J:
1. This petition has been filed by the petitioner under Article 227 of
the Constitution of India read with Section 482 of the Code of Criminal
Procedure (Cr.P.C.) to assail the order dated 04.04.2003 passed by the
learned Metropolitan Magistrate dismissing the complaint filed by the
petitioner against the respondents as well as for summoning them to
face prosecution under Sections 380, 448, 453, 506 read with Section
34 of the Indian Penal Code (IPC) as well as the judgment dated
01.10.2003 passed in revision by learned Additional Sessions Judge
upholding the order passed by the learned Metropolitan Magistrate.
Crl.M.C. 204/2004 Page 1 of 12
2. The petitioner submits that both the aforesaid orders are illegal,
improper, incorrect and are against the facts and material available on
record. It has also been submitted that the Courts below erred in not
summoning the respondents on the complaint of the petitioner and
thus, have failed to exercise the jurisdiction vested in her by
dismissing the complaint on the ground that civil litigation was pending
between the parties in respect of the property, subject matter of
complaint. The Courts below failed to appreciate that filing of the civil
suits by the petitioner does not debar him from filing a criminal
complaint against the respondents for the criminal offence allegedly
committed by them. Thus, the orders passed by the Courts below
suffers from material infirmity and requires interference by this Court
in exercise of its powers to do complete justice by setting aside both
the orders and directing the Metropolitan Magistrate concerned to take
cognizance of the complaint filed by the petitioner and proceed with
the same in accordance with law.
3. At the outset, I may observe that a petition under Section 482
Cr.P.C. is not permitted to be filed by way of a second revision in view
of Section 397(3) of the Cr.P.C. which reads as under:
397 - Calling for records to exercise powers of
revision:
(1) & (2)- xxxxx
(3) 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 other of
them.
4. However, in exercise of the inherent powers of the High Court
under Section 482 of the Cr.P.C. with and the powers of continuous
superintendence under Section 483, the High Court may still be
justified in interfering with the order which may lead to miscarriage of
Crl.M.C. 204/2004 Page 2 of 12
justice provided it is fit case to do so.
5. In this regard reference can be made to a judgment delivered by
the Apex Court in the case of Krishnan & Anr. Vs. Krishnaveni and Anr.
(1997) 4 SCC 241. Some of the observations made in this regard are
reproduced hereinbelow for the sake of reference:
6. Section 401 of the Code gives to every High
Court power of revision. Sub-section (1) of the said
section provides that in the case of any proceeding
the record of which has been called for by itself or
which otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by Sections
386, 389 and 391 and on a Court of Sessions by
Section 307. Apart from the express power under
Section 397(1), the High Court has been invested
with suo motu power under Section 401 to exercise
revisional powers. In addition, Section 482 saves
inherent powers of the High Court postulating that
"Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to
make such orders as may be necessary to give
effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to
secure the ends of justice." Section 483 enjoins
upon every High Court to so exercise its continuous
superintendence over the Courts of Judicial
Magistrates subordinate to it as to ensure that
there is an expeditious and proper disposal of cases
by such Magistrates. It is, therefore, clear that the
power of the High Court of continuous supervisory
jurisdiction is of paramount importance to examine
correctness, legality, or propriety of any finding,
sentence or order, recorded or passed as also
regularity of the proceedings of all inferior Criminal
Courts.
7. It is seen that exercise of the revisional power by
the High Court under Section 397 read with Section
401 is to call for the records of any inferior Criminal
Court and to examine the correctness, legality or
propriety of any finding, sentence or order,
recorded or passed, and as to the regularity of any
proceedings of such inferior Court and to pass
appropriate orders. The Court of Session and the
Magistrates are inferior Criminal Courts to the High
Court and Courts of Judicial Magistrate are inferior
Criminal Courts to the Sessions Judge. Ordinarily, in
the matter of exercise of power of revision by any
High Court, Section 397 and Section 401 are
required to be read together. Section 397 gives
powers to the High Court to call for the records as
also suo motu power under Section 401 to exercise
the revisional power on the grounds mentioned
therein, i.e., to examine the correctness, legality or
propriety of any finding, sentence or order,
Crl.M.C. 204/2004 Page 3 of 12
recorded or passed and as to the regularity of any
proceedings of such inferior Court, and to dispose
of the revision in the manner indicated under
Section 401 of the Code. The revisional power of
the High Court merely conserves the power of the
High Court to see that justice is done in accordance
with the recognised rules of criminal jurisprudence
and that its subordinates Courts do not exceed the
jurisdiction or abuse the power vested in them
under the Code or to prevent abuse of the process
of the inferior Criminal Courts or to prevent
miscarriage of justice.
8. The object of Section 483 and the purpose
behind conferring the revisional power under
Section 397 read with Section 401, upon the High
Court is to invest continuous supervisory
jurisdiction so as to prevent miscarriage of justice
or to correct irregularity of the procedure or to
meet out justice. In addition, the inherent power of
the High Court is preserved by Section 482. The
power of the High Court, therefore, is very wide.
However, High Court must exercise such power
sparingly and cautiously when the Sessions Judge
has simultaneously exercised revisional power
under Section 397(1). However, when the High
Court notices that there has been failure of justice
or misuse of judicial mechanism or procedure,
sentence or order is not correct, it is but the
salutary duty of the High Court to prevent the
abuse of the process or miscarriage of justice or to
correct irregularities/incorrectness committed by
inferior Criminal Court in its juridical process or
illegality of sentence or order.
9. The inherent power of the High Court is not one
conferred by the Code but one which the High
Court already has in it and which is preserved by
the Code. The object of Section 397(3) is to put a
bar on simultaneous revisional applications to the
High Court and the Court of Sessions so as to
prevent unnecessary delay and multiplicity of
proceedings. As seen, under Sub-section (3) of
Section 397, revisional jurisdiction can be invoked
by "any person" but the Code has not defined the
word 'person.' However, under Section 11 of the
IPC, 'person' includes any Company or Association
or body of persons, whether incorporated or not.
The word 'person' would, therefore, include not
only the natural person but also juridical person in
whatever form designated and whether
incorporated or not: By implication, the State
stands excluded from the purview of the word
'person' for the purpose of limiting its right to avail
the revisional power of the High Court under
Section 397(1) of the Code for the reason that the
State, being the prosecutor of the offender, is
enjoined to conduct prosecution on behalf of the
society and to take such remedial steps as to
deems proper. The object behind criminal law is to
maintain law, public order, stability as also peace
Crl.M.C. 204/2004 Page 4 of 12
and progress in the society. Generally, private
complaints under Section 202 of the Code are laid
in respect of non-cognizance offences or when it is
found that police has failed to perform its duty
under Chapter XII of the Code or to report as
mistake of fact. In view of the principle laid down in
the maxim Ex debito justitiae, i.e., in accordance
with the requirements of justice, the prohibition
under Section 397(3) on revisional power given to
the High Court would not apply when the State
seeks revision under Section 401. So the State is
not prohibited to avail the revisional power of the
High Court under Section 397(1) read with Section
401 of the Code.
10. Ordinarily, when revision has been barred
by Section 397(3) of the Code, a person -
accused/ complainant - cannot be allowed to
take recourse to the revision to the High
Court under Section 397(1) or under inherent
powers of the High Court under Section 482
of the Code since it may amount to
circumvention of the provisions of Section
397(3) or Section 397(2) of the Code. It is
seen that the High Court has suo motu power
under Section 401 and continuous
supervisory jurisdiction under Section 483 of
the Code. So, when the High Court on
examination of the record finds that there is
grave miscarriage of justice or abuse of
process of the Courts or the required
statutory procedure has not been complied
with or there is failure of justice or order
passed or sentence imposed by the
Magistrate requires correction, it is but the
duty of the High Court to have it corrected at
the inception lest grave miscarriage of justice
would ensue. It is, therefore, to meet the
ends of justice or to prevent abuse of the
process that the High Court is preserved with
inherent power and would be justified, under
such circumstances, to exercise the inherent
power and in an appropriate case even
revisional power under Section 397(1) read
with Section 401 of the Code. As stated
earlier, it may be exercised sparingly so as to
avoid needless multiplicity of procedure,
unnecessary delay in trial and protraction of
proceedings. The object of criminal trial is to
render public justice, to punish the criminal
and to see that the trial is concluded
expeditiously before the memory of the
witness fades out. The recent trend is to
delay the trial and threaten the witness or to
win over the witness by promise or
inducement. These malpractices need to be
curbed and public justice can be ensured only
when expeditious trial is conducted.
11-13. xxxxx
14. In view of the above discussion, we hold that
Crl.M.C. 204/2004 Page 5 of 12
though the revision before the High Court under
Sub-section (1) of Section 397 is prohibited by Sub-
section (3) thereof, inherent power of the High
Court is still available under Section 482 of the
Code and as it is paramount power of continuous
superintendence of the High Court under Section
483, the High is justified in interfering with the
order leading to miscarriage of justice and in
setting aside the order of the Courts below. It
remitted the case to the Magistrate for decision on
merits after consideration of the evidence. We
make it clear that we have not gone into the merits
of the case. Since the High Court has left the
matter to be considered by the Magistrate, it would
be inappropriate at this stage to go into that
question. We have only considered the issue of
power and jurisdiction of the High Court in the
context of the revisional power Under Section
397(1) read with Section 397(3) and the inherent
powers. We do not find any justification warranting
interference in the appeal.
6. It may also be noted that the aforesaid judgment was also
considered in another judgment delivered in the case of Kailash Verma
Vs. Punjab State Civil Supplies Corporation & Anr. (2005) 2 SCC 571.
5. It may also be noticed that this Court in
Rajathi v. C. Ganesan (1999) 6 SCC 326 said that
the power under Section 482 of the Criminal
Procedure Code has to be exercised sparingly and
such power shall not be utilized as a substitute for
second Revision. Ordinarily, when a Revision has
been barred under Section 397(3) of the Code, the
complainant or the accused cannot be allowed to
take recourse to Revision before the High Court
under Section 397(1) of the Criminal Procedure
Code as it is prohibited under Section 397(3)
thereof. However, the High Court can entertain a
petition under Section 482 of the Criminal
Procedure Code when there is serious miscarriage
of justice and abuse of the process of the court or
when mandatory provisions of law were not
complied with and when the High Court feel that
the inherent jurisdiction is to be exercised to
correct the mistake committed by the revisional
court.
7. The facts of this case needs to be analysed in the light of the
ratio of the aforesaid judgments which circumscribe the powers vested
in this Court under Section 482, 483 of Cr.P.C. and under Article 227 of
Crl.M.C. 204/2004 Page 6 of 12
the Constitution of India whenever an attempt is made to again invoke
the power of revision though in the garb of petition under Sections
482, 483 read with Article 227 of the Constitution of India in view of
the bar created under Section 397(3) Cr.P.C., having already availed
the remedy of revision in respect of his grievance by approaching the
Sessions Court. The ratio of the judgment, as quoted above, makes it
abundantly clear that while the powers vested in this Court under
Sections 482,483 Cr.P.C. and Article 227 of the Constitution of India are
wide enough to still interfere in a case where even the revisional
jurisdiction has already been invoked on a petition filed by the
petitioner under Section 397(1) of the Cr.P.C., but such powers are to
be exercised only in a case where a grave miscarriage of justice has
been done or there is abuse of the process of Court and/or where the
required statutory procedure has not been complied with or where the
order of sentence requires correction.
8. Briefly stating facts of this case are that a complaint was filed by
the petitioner against respondent No.1, his real brother and his wife
arrayed as respondent No. 2 alleging trespass by them in respect of
property bearing No. 10788, Manakpura, Karol Bagh, New Delhi which
comprised of first floor together with rights up to top floor which
property was allegedly purchased by the petitioner on 06.07.1979 in a
court auction though it is undisputed that the respondents have also
been residing in the said property along with the petitioner. In fact, it
is the case of the petitioner that the respondents had been residing in
the aforesaid property with the permission of the petitioner on the
second floor on leave and license basis.
9. It is further alleged that the petitioner constructed another house
in Sector-5, Rohini, Delhi, sometimes in April, 2001 and shifted there
Crl.M.C. 204/2004 Page 7 of 12
leaving behind the house hold articles such as gas connection, water
pump etc. in the kitchen on the first floor besides some books, one
bed, sofa set, utensils, some clothes, box etc. in the room situated at
the first floor at the time of his shifting. It was also alleged that in the
month of September, 2001, the respondents illegally and
unauthorizedly trespassed into first floor portion of the property
belonging to and owned by the petitioner by breaking open the locks
and stealthily removed the water pump, gas connection and other
articles illegally and trespassed into kitchen of the first floor. On
coming to know of these facts, the petitioner reported the matter to
the SHO, P.S. Desh Bandhu Gupta Road, New Delhi vide complaint
dated 11.09.2001 and to the DCP concerned on 12.09.2001. The
aforesaid acts were again repeated by the respondents in the month of
November, 2001 by trespassing into the remaining portion of the
property on the first floor by again breaking open the lock and
removing the goods stealthily belonging to the petitioner lying in the
said room including books, one bed, sofa set, utensils, some clothes,
box and some other valuable articles etc and putting their locks in the
said room. Again a report was lodged with the local police but since
the police failed to register the case, the petitioner filed a complaint
before the learned Metropolitan Magistrate concerned which was filed
under Sections 380, 448,453,506 read with Section 34 of the IPC. After
a complaint was filed by the petitioner, the Metropolitan Magistrate
called for a report from the concerned SHO under Section 156(3) of
Cr.P.C.. The petitioner has alleged that the investigating officer who
submitted his report has colluded with the respondents filed a false
and frivolous report and has not even recorded the statement of any of
the independent witnesses residing nearby the property. On the basis
Crl.M.C. 204/2004 Page 8 of 12
of the aforesaid report filed by the I.O., the learned Metropolitan
Magistrate without giving an opportunity to the petitioner to lead
evidence in support of his complaint dismissed the complaint vide
order dated 04.04.2003 on the basis of the report under Section 156(3)
Cr.P.C.. The said order was challenged in Revision which was also
dismissed by the learned Additional Sessions Judge as aforesaid.
Hence, this petition.
10. I have heard learned counsel for the parties and have perused
the record and a perusal of the order dated 04.04.2003 passed by the
learned Metropolitan Magistrate shows that the report under Section
156(3) Cr.P.C. was based upon the statement of witnesses and
documents including LC report in the suit filed by the complainant for
permanent injunction against the accused persons which reflected that
the accused persons/respondents were having separate keys of the
rooms where goods were lying and the suit for permanent injunction
was dismissed as infructuous by the learned Additional Sessions Judge
and where a statement of the father of the complainant, Balram,
widow sister-in-law of complainant Veena and neighbour Premwati was
recorded by I.O. which reflected that civil litigations were pending
between the parties in respect of the same room and thus, no case
was made out against the respondents under Section 380, 436,435
IPC.
11. In the revision petition filed by the petitioner, the petitioner
assailed the order passed by learned Metropolitan Magistrate inter alia
on the same grounds on which the petitioner has filed the present
petition. The Court of Additional Sessions Judge has taken note of the
order passed by the learned Metropolitan Magistrate in the light of the
provisions contained under Section 200, 202 and 203 of the Cr.P.C. It
Crl.M.C. 204/2004 Page 9 of 12
has been rightly observed that under Section 202 Cr.P.C., the learned
Metropolitan Magistrate is empowered to postpone the issue of process
and can inquire into the case himself or direct an investigation to be
made by a police officer or by such other officer as he thinks fit into
the allegations made in the complaint. If after considering the
statement on oath, if any, of the complainant and of the witnesses and
the result of the inquiry or investigation under Section 203 Cr.P.C. the
magistrate is of the view that there is no sufficient ground for
proceeding, he can dismiss the complaint and in every such case, he
shall briefly record his reasons for doing so.
12. The order passed by the Metropolitan Magistrate concerned
dated 04.04.2003 goes to show that while passing the aforesaid order
the Magistrate has taken note of the report submitted by the
investigating officer, who was directed to investigate the matter in
accordance with the provisions under Section 156(3) of Cr.P.C. which
power was rightly exercised by the Magistrate in the light of the
powers vested in him under Section 202 Cr.P.C. and which order was
never challenged by the petitioner. The order goes to show that the
Metropolitan Magistrate has fully dealt with the report as submitted
and has taken a view that the report was submitted which is based
upon the statement of the witnesses recorded by the Investigating
Officer and the proceedings which were going on in the Civil Court
including the refusal to grant injunction against the respondents which
showed that the complaint filed by the petitioner was basically to take
revenge against the respondents so as to settle scores about the
property by using the process of the criminal court. A reply has been
filed by the respondents which goes to show that the property in
question was a joint family property and had been purchased by the
Crl.M.C. 204/2004 Page 10 of 12
funds provided by Sh. Baldev Singh, the father of the petitioner and of
respondent No.1 and that the petitioner had been residing there with
other family members, i.e., his father, respondent No.2 and their
children as a joint family till the petitioner decided to shift to his own
house in Rohini where he is presently residing. In fact, the
respondents had been residing in the property along with their father
as co-owners of the property and were in possession much prior to the
date when the said property was purchased. They have denied that
the respondents had been residing on the second floor as alleged or
that they were residing as the licensee and that the petitioner had left
valuables, gas connection, water pumps, books, sofa set, utensils,
clothes, box etc.
13. I may observe here that nothing has been brought to my notice
by the petitioner that after the receipt of the report of the investigating
officer, he wanted to examine himself or wanted to produce any other
evidence in support of the complaint. I do not find that the order
dismissing the complaint or dismissal of the revision petition by the
learned Additional Sessions Judge suffers from any material infirmity or
have caused any miscarriage of justice which may call for interference
by this Court under Section 482/483 of the Cr.P.C.
14. Rather, I am of the considered view that in a family dispute like
this where the contention of the respondents is that the property is a
joint family property and was purchased by respondent No.1 with the
funds provided by the father and where the respondent No.1 had also
been residing with his family members even before the purchase of the
property in question along with petitioner and his father, the efforts
made by the petitioner to oust the respondents, firstly by filing a civil
suit where he could not succeed and then by filing of complaint in
Crl.M.C. 204/2004 Page 11 of 12
question is, in fact, is an abuse of the process of Court and, therefore,
makes out no case for granting indulgence of this Court under Section
482 of the Cr.P.C. The proceedings undertaken by the Magistrate,
orders passed by her on 04.04.2003 and the orders passed by the
Additional Sessions Judge does not suffer from any infirmity which may
require any correction by this Court under Article 227 of the
Constitution of India.
15. I may further observe that in this case efforts were also made by
the Mediation and Conciliation Centre which also did not succeed and
thus, there is no reason to exercise inherent powers vested in this
Court under Section 482 of Cr.P.C.
16. With these observations, the petition is dismissed with costs of
Rs.5000/- to be deposited with the Delhi High Court Mediation and
Conciliation Centre in its UCO Bank A/c No.48852 within one month
from today.
MOOL CHAND GARG, J.
FEBRUARY 02, 2009 anb Crl.M.C. 204/2004 Page 12 of 12