Kerala High Court
Chelladurai vs Sureshkumar (Biju) on 9 June, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 9TH DAY OF JUNE 2017/19TH JYAISHTA, 1939
Crl.MC.No. 3965 of 2017 ()
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ST 237/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
PEERUMEDU
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PETITIONER/COMPLAINANT :
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CHELLADURAI, S/O. PERUMAL,
SELEENA HOUSE, KIZHAKKEKKARA,
PEERMEDE, IDUKKI DISTRICT
BY ADVS.SRI.G.HARIHARAN
SRI.PRAVEEN.H.
SMT.K.S.SMITHA
SMT.T.T.SHANIBA
SRI.M.V.VIPINDAS
SMT.JINU ANTONY
RESPONDENTS/ACCUSED-STATE :
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1. SURESHKUMAR (BIJU)
S/O. CHANDRADASAN, THAYYIL HOUSE,
MALLAPPILLY, PATHANAMTHITTA, PIN 685 531
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA,ERNAKULAM 682 031
R2 BY PUBLIC PROSECUTOR
SRI. SAIGI JACOB PALETTY
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 09-06-2017,THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
bp
Crl.MC.No. 3965 of 2017 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE I: TRUE COPY OF THE COMPLAINT FILED BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-II PEERMADE AS ST 237/2016
ANNEXURE II: CERTIFIED COPY OF THE ORDER SHEET IN
CONNECTION WITH ST 237/16 BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-II
PEERMADE
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
ALEXANDER THOMAS, J.
================== Crl.M.C.No.3965 of 2017 ================== Dated this theO 9th day of June, 2017 R D E R The order under challenge in this petition filed under Sec.482 of the Cr.P.C. is proceedings at Anx.A-2, whereby the complaint of the petitioner alleging offence punishable under Sec.138 of the Negotiable Instruments Act against R-1 herein (accused) was dismissed by virtue of the enabling provisions conferred under Sec.204(4) of the Cr.P.C.
2. Heard Sri.G.Hariharan, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the 2nd respondent State. In the nature of the order that is proposed to be passed in this petition, notice to R-1 (accused) will stand dispensed with.
3. This Court is not inclined to entertain this petition for reasons more than one. Firstly, what is challenged herein is Anx.II proceedings, which is only certified copy of all the proceedings issued by the learned Magistrate in relation to the present complaint (S.T.No. 237/2016 on the file of the Judicial First Class Magistrate's Court-II, Peermade). As per Anx.II proceedings sheet, proceedings from various dates from 3.8.2016 are shown therein and in respect of proceedings on 20.5.2017, it is endorsed therein as follows:
"Complainant absent. No representation. Steps not taken so far. Complaint dismissed u/s.204(4) Cr.P.C."
4. Anx.II is only the proceedings sheet, which is one prepared by the magistrate court concerned showing the details of the proceedings Crl.M.C.3965/17 - : 2 :-
in the various dates concerned. The petitioner has not produced the certified copy of the impugned order dated 20.5.2017 passed by the learned Magistrate in this case. There are no extraordinary circumstances in the facts of this case which would justify such an action on the part of the petitioner complainant in not following the prescribed procedure, whereby the litigant is expected to produce certified copy of the impugned order for raising necessary challenge in an appropriate manner. No reasons are given by the petitioner for not producing the certified copy of the impugned order. For this reason alone, this Court is not inclined to consider the plea contained in this petition.
5. Secondly, it can be seen that the impugned proceedings is one dismissing the complaint by virtue of the enabling powers under Sec.204(4) of the Cr.P.C. and this amounts to termination of the impugned criminal proceedings. Such an order, which is directly resulting in the termination of the impugned criminal proceedings, will be a final order and not interlocutory. Sec. 397 of the Cr.P.C. deals with the powers of revision conferred on the High Courts and Sessions Courts. Sec. 397(2) provides as follows:
"Sec. 397: Calling for records to exercise powers of revision xxx (2) The powersxxx revision conferred by sub-section (1) shall not xxx be exercised in relationofto any interlocutory order passed in any appeal, inquiry, trial or other proceeding"
Therefore, the bar in Sec.397(2) does not arise in the facts of this case. So the impugned order is revisable in terms of Sec.397 of the Cr.P.C. The Crl.M.C.3965/17 - : 3 :-
concurrent jurisdiction is conferred on the High Courts as well as Sessions Courts in terms of Sec. 397 of the Cr.P.C. and the High Courts' powers of revision are explicitly referred to in Sec.401 of the Cr.P.C.
6. Ordinarily, when a statutory remedy is provided in terms of the provisions contained in the Code of Criminal Procedure or special statute concerned, then it may not be proper to take recourse to the extra ordinary inherent powers conferred on this Court under Sec.482 of the Cr.P.C. This is only a rule of judicial caution and this wholesome principle of judicial norm of self restraint is not a bar against exercise of jurisdiction conferred under Sec.482 of the Cr.P.C. The said position has been made clear in many rulings of the Apex Court as in PUNJAB STATE WAREHOUSING CORPORATION, FARIDKOT v. SHREE DURGA JI TRADERS AND OTHERS reported in AIR 2012 SC 700 = 2011 (14) SCC 615, wherein it has been held by the Apex Court that availability of an alternate remedy per se and by itself is no ground for dismissal of the application under Sec.482 of the Cr.P.C. Recently, in the judgment in Prabhu Chawla v. State of Rajasthan, reported in AIR 2016 SC 4245 = 2016 (8) SCALE 545, the Apex Court has held that in view of the non-abstante clause contained in Sec.482 of the Cr.P.C., there can be no total ban on exercise of such wholesome jurisdiction. It will be profitable to refer to para 6 of the judgment in Prabhu Chawla's case supra, which reads as follows:
'6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under S.482 CrPC is unwarranted. We would simply reiterate that S.482 begins with a non obstante clause to state: "Nothing in this Code shall be deemed to Crl.M.C.3965/17 - : 4 :-
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." A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. "abuse of the process of the Court or other extraordinary situation excites the Court's jurisdiction. The limitation is self - restraint, nothing more." [(1980) 1 SCC 43, para 10 - Raj Kapoor & ors. v. State & Ors.] We venture to add a further reason in support. Since S.397 CrPC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under S.482 CrPC only to petty interlocutory orders! A situation wholly unwarranted and undesirable.'
7. In Raj Kapoor & ors. v. State & Ors. reported in (1980) 1 SCC 43, the Apex Court dealt with a case where a private complaint was filed alleging offences punishable under Secs.292, 293 and 34 of the I.P.C., against the theater owner, producer, actors and photographer in respect of a sensational film, "Satyam Sivam, Sundaram", alleging that the film depicts punitive prurience, moral depravity and shocking erosion of public decency. The trial court after examination of the few witnesses of the complainant had issued summons to the accused persons, who in turn had filed a petition under Sec.482 of the Cr.P.C. before the Delhi High Court praying to quash the impugned criminal proceedings. The learned Single Judge of the Delhi High Court held that the revision under Sec.397 would lie against an order summoning the accused persons and once it is held that the revision petition lies, the petition under Sec.482 of the Cr.P.C. cannot be entertained for invoking the inherent powers of the High Court. The said order of the Delhi High Court was challenged before the Supreme Court, which led to the aforecited judgment, which was rendered by Justice V.R.Krishna Iyer. It will be profitable to refer para 10 Crl.M.C.3965/17 - : 5 :-
of the decision in Raj Kapoor's case supra, which reads as follows:
"10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye case (1997) 4 SCC 551) this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake.
While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397 (2). Apparent conflict may arise in some situations between the two provisions and a happy solution "would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction".
In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para
10) "The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case Crl.M.C.3965/17 - : 6 :-
undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible." Iinam, therefore clear in my mind that the inherent power is not rebuffed the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified."
8. In the facts of Raj Kapoor's case supra, the Supreme Court held that the said case falls under the category where accused persons complain harassment through court's process and further that the content of the power so far as the facts in that case are concerned, is the same, be it under Sec.397 (revision powers) or Sec.482 (inherent powers) of the Code of Criminal Procedure and that in view of the strong case of abuse of process of court as averred in that petition, the Apex Court held that it was wrong on the part of the High Court to have dismissed the application under Sec.482 of the Cr.P.C. merely on the ground that an alternative revisional remedy is available and had accordingly set aside the impugned judgment of the High Court and had remitted the petition to the High Court for consideration on merits. It would also be relevant to note that the Apex Court in the decision in Madhu Limaye v. State of Maharashtra, reported in (1977) 4 SCC 551 = 1978 SCC (Cri.) 10 has also held that where the petition discloses a factual situation showing abuse of the process of the court or for securing the ends of justice, etc. interference of the High Court is absolutely necessary, then nothing contained in Crl.M.C.3965/17 - : 7 :-
Sec.397(2) (revisional powers) can limit or affect the exercise of the inherent power of the High Court, but that such cases would be few and far between and that the High Court must exercise the inherent power very sparingly, etc. It will be profitable to refer para 10 of the decision in Madhu Limaye v. State of Maharashtra, reported in (1977) 4 SCC 551, which reads as follows:
'10. As pointed out in Amar Nath case the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding, is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court", But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and even after his acquittal a second trial, after proper sanction will not be barred on the doctrine of autrefois acquit. Even Crl.M.C.3965/17 - : 8 :-
assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.'
9. So the legal position in this regard is well settled and there cannot be total ban on the exercise of extra ordinary inherent powers conferred on this Court under Sec.482 of the Cr.P.C. merely on the ground that the alternate remedy is contemplated under the Code of Criminal Procedure or the special statute concerned. But where a specific alternate remedy is conferred in relation to the matter, then recourse to the remedy under Sec. 482 of the Cr.P.C. should be considered with due caution and the court should be satisfied that there is grave abuse of the process of the court or some other extra ordinary situation which "excites" the court's jurisdiction under Sec.482 of the Cr.P.C.
10. In the instant case, the petitioner has not been able to show any extra ordinary factual situation or any grave abuse of the process or any serious miscarriage of justice so as to "excite" the invocation of the extra ordinary jurisdiction conferred under Sec.482 of the Cr.P.C. in the facts and circumstances of this case. The plain facts of the matter as disclosed in the pleadings as well as the materials on record are that the complainant was absent so as to prosecute his complaint filed alleging Crl.M.C.3965/17 - : 9 :-
offence punishable under Sec.138 of the Negotiable Instruments Act and there was no representation on his behalf and steps were not taken till then and so the learned Magistrate has invoked his powers under Sec.204 (4) of the Cr.P.C. to dismiss the complaint. In the opinion of this Court, no extra ordinary circumstances are attracted to the facts of this case so as to justify the resort to the remedy under Sec.482 of the Cr.P.C. and the petitioner can ventilate all his grievances in a properly constituted revision petition to challenge the said order and after producing the certified copy of the impugned order. Accordingly, this Court is not inclined to entertain this petition. The Registry will return back the certified copy of the impugned Anx.II proceedings sheet to the petitioner's counsel, in case a request in that regard is so made. The Registry will ensure that a photocopy of the said proceedings sheet is kept in the case file. The petitioner will be at liberty to appropriately raise a challenge against the impugned order by initiating appropriate proceedings in that regard after producing a certified copy of the impugned order dated 20.5.2017 of the learned Magistrate.
With these observations and directions, the Criminal Miscellaneous Case stands dismissed.
sdk+ ALEXANDERSd/- THOMAS, JUDGE
///True Copy///
P.S. to Judge
Crl.M.C.3965/17 - : 10 :-