Rajasthan High Court - Jaipur
Sahab Ram And Anr. vs State Of Rajasthan And Ors. on 22 December, 1999
Equivalent citations: 2000WLC(RAJ)UC464, 2000(2)WLN554
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
JUDGMENT Bhagwati Prasad, J.
1. In this revision petition, an application has been moved on behalf of respondent No. 4 wherein it has been alleged that he had filed a caveat and the petitioners had knowledge of it. Since the applicant having filed a caveat had the right of hearing before the matter was taken up for admission. The orders were passed without hearing the applicant. Therefore, the order of admission and stay passed by this Court on 21.10.1999 deserves to be re ailed.
2. The case was taken up for arguments on the question whether a caveat is permissible in criminal matters. The arguments were heard on 2.12.1999 and the order was reserved.
3. Learned counsel for the respondent/applicant urged that the Rajasthan High Court Rules, 1952 makes a provision under Rule 159 that as and when a caveat is lodged, the Registrar will give notice of the lodging of the appeal and it would be required that appellant/ petitioner will furnish a copy of the appeal/petition or application to the caveator. The caveator is entitled to notice of the petition.
4. Learned counsel for the respondent has urged that the procedure prescribed under Rule 159 of the Rajasthan High Court Rules, 1952 having not been followed the order of admission and stay deserves to be recalled. He has placed reliance on a decision of this Court delivered in the matter of Hari Ram v. Ratanlal wherein this Court has held that caveat having been filed in a writ petition, the respondent was entitled to notice. The notice having not been given the order deserves to be recalled.
5. Learned counsel for the petitioner disputed the proposition. His case was that the provisions of Rule 159 of the Rajasthan High Court Rules, 1952 are only procedural. They do hot give any substantive right to the caveator to file a caveat. What is provided in Rule 159 of the Rajasthan High Court is the procedure which has to be followed by the office after lodging of the caveat.
6. In civil proceedings the provisions with regard to filing of caveat are governed by Section 148A of the Code of Civil Procedure. Learned counsel has placed reliance on a case decided by this Court in the matter of H.G. Shanker Narayan v. State of Rajasthan and Ors. 1984 R.L.R. 163 wherein this Court has handled the question of caveat and has held as under:
It is a precautionary measure which is generally taken against the grant of probate or letters of administration, as the case may be, by the person lodging caveat. But now it has also been extended to other civil proceedings. The Rules contemplate the filing of a caveat in civil proceedings in Rule 159 which falls in Chapter XI of Part II as well as in testamentary proceedings under Rule 777 which falls in Chapter XXX. This would show that apart from proceedings instituted in this Court against the orders passed by the lower courts, caveats can also be entertained in respect of other matters like succession.
Thus, this Court has only recognised the applicability of the provisions of caveat in relation to civil matters and matters of writ. No case has been pointed out by the caveator which shows that this Court or any other High Court has enforced the provisions of caveat in relation to criminal matters.
7. I have heard the learned Counsel, perused the record and considered the arguments advanced in this regard.
8. What is important is to see whether there is any provision regarding caveat in the Criminal Procedure Code as are available regarding caveat under Section 148A of the Code of Civil Procedure. There is no express power contained in the Criminal Procedure Code recognising the right of the respondent to institute a caveat. Thus, in the substantive Law, governing the procedural aspect of the criminal matters, the provision relating to caveat has altogether been excluded.
9. Attempts have been made by the accused persons in criminal cases to obtain hearing before passing of the order of cognizance. The Hon'ble Supreme Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi has categorically held as under:
It is not province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one. In proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.
10. Unless an order of cognizance is recorded against the accused no accused is entitled to address the court. The only aspect which has been recognised is that the accused may remain present to watch the proceedings. Thus, unlike the civil proceedings wherein the original and appellate proceedings an adversary is entitled to hearing, in criminal matters an accused has been denied hearing before any order is passed by the criminal court taking cognizance.
11. In criminal matters apart from the accused the other party is the State. The right of the accused as has been noted aforesaid has been denied by the Supreme Court. When the accused has no right of hearing, the State has also not been granted any opportunity of hearing by way of caveat. In bail matters a provision has been made that as and when an application for bail is to be considered by the court a notice to the Public Prosecutor is a must. There too it is only a mandatory notice. The State is not granted hearing by virtue of any caveat Proviso to Section 439(1) is referred in this regard, which reads as under:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
Thus in the scheme of criminal law, the provisions of caveat have not only been provided but is generally not enforced also.
12. The learned Counsel for the applicant has fairly conceded that he has not been able to lay his hands on any case where caveat was enforced in criminal matters. He relied only on Rule 159 of the High Court Rules. This rule is only procedural. Substantive provision of caveat is not provided in it. Right to lodge caveat has not been prescribed in the rule.
13. In civil proceedings the caveat is governed by Section 148A C.P.C. In writ jurisdiction as far as possible C.P.C. is made applicable. Thus Section 148A C.P.C. has been made applicable. In criminal proceedings the right has to be searched in Criminal Procedure Code, which is not there.
14. In view of the fact that the Code of Criminal Procedure, substantive law governing the criminal procedure, makes no provision for caveat, the right of the applicant to lodge a caveat is without any legal sanction. There having no legal sanction behind the caveat lodged by the applicant no consequences follow. Consequently, no order can be passed to recall the orders of admission and stay. The stand of the applicant is thus negated. The matter will now be considered on merits after hearing both the parties as the same has been admitted.