Calcutta High Court
Amzad Ali vs Marfat Ali Biswas And Two Ors. on 11 June, 1998
Equivalent citations: (1998)2CALLT462(HC), 1998(1)CHN236, 1997CRILJ4148
JUDGMENT
D.B. Dutta. J.
1. By the Instant application styled as one under Article 227 of the Constitution of India, the accused of C.R. Case No. 120 of 1991 of the Court of Sub Divisional Judicial Magistrate, Lalbag, moved this court in its criminal revision Jurisdiction praying for setting aside the order dated 19th April, 1991 passed in Misc. Appeal No. 80 of 1989 of the Fourth Court of Additional District Judge, Murshtdabad, and also for quashing the criminal proceeding in C.R. Case No.120 of 1991 of the Court of Sub Divisional Judicial Magistrate, Lalbag.
2. The facts and circumstances giving rise to the present application, as far as can be gathered from the materials placed before this court, may in short, be stated as follows.
On 27.2.81. the accused petitioner instituted a suit being Title Suit No.6 of 1981 in the Court of the Munslf, Lalbag for declaration of title and Injunction in respect of certain property against the Respondent No.l and some others, basing his right, title and Interest in that property on a deed of sale dated 10.3.38 which purports to have been executed by one Kedar Box Mondal in favour of one Ohedulla Mondal and registered in the Sub Registry Office of Jangipur. Before the written statement was filed by the defandants Including the Respondent No. 1 in the suit, on a prayer made before the court, it directed the plaintiff petitioner to file the aforesaid deed of sale dated 10.3.38 and the petitioner filed that deed in compliance with the direction.
Thereafter, the defendants on filing the written statement disputed the genuineness of the said deed of sale alleging that no such deed was ever executed or registered in the Jangipur Sub Registry Office.
Thereafter. Issues were framed and the suit reached the stage of peremtory hearing but finally the suit was dismissed for default on 20.1.88.
Thereafter, the defendant respondent no.l filed an application under section 340 Cr.PC before the Court of Munslf, Lalbag, praying for lodging a complaint against the plaintifi* petitioner alleging that the plaintiff petitioner fraudulently and dishonestly used as genuine the aforesaid, deed of sale dated 10.3.38, knowing or having reason to believe that it was a forged document and had thereby committed an offence punishable under section 471 I.PC This application was registered as Misc. Case No.34 of 1988 of the Court of Munsiff, Lalbag.
The plaintiff petitioner contested the Misc. Case denying all the material allegations made in the application and contending inter alia that he claimed to have acquired his right, title and interest by virtue of a sale deed dated 25.3.75 executed by one Sekh Maniruddln and that the impugned sale deed dated 10.3.38 was filed by him not on his own but in pursuane of the direction of the court. It was also alleged that it was not within his knowledge that the sale deed dated 10.3.38 was a forged one and that hefiled the said deed without any knowledge or reasons to believe that it was a forged one.
3. The learned Munsiff held a preliminary Inquiry and upon consideration of all the evidence that was led during that Inquiry, he was of the view that the respondent No. 1 had not been able to make out a prima facie case against the plaintiff petitioner under section 471 of the IPC and in such view of the matter, the learned Munsiff dismissed the Misc. Case on 29.4.89 and refused to lodge a complaint as prayed for.
4. Being aggrieved by this refusal, the respondent No.l preferred an appeal being Misc. Appeal No. 80 of 1989 of the Fourth Court of Additional District Judge, Murshtdabad.
The learned Additional District Judge was of the view that in view of specific assertion in the written statement denying the existence of the impugned deed of sale, the plaintiff petitioner should have Inquired in the matter for verifying the truth or otherwise of the said assertion and if such Inquiry revealed the truth of the assertion, the plaintiff petitioner should have informed the court of the circumstances under which he filed the deed and could have withdrawn the suit. But since the plaintiff, without taking any such step, initially proceeded with the suit and allowed the issues to be framed and ultimately, when the suit was fixed in the peremtory board, allowed the suit to be dismissed, the learned Additional District Judge arrived at a conclusion that the deed in question must be a forged one and the plaintiff petitioner filed the same knowing it to be a forged one. In such view of the matter, he allowed the appeal and set aside the order of the learned Munsiff directing him to make a complaint against the plaintiff petitioner in accordance with the provisions of section 340(1) of Cr.PC B. In pursuance of this direction, the learned Munsiff lodged a complaint with the sub Divisional Judicial Magistrate, Lalbag, against the plaintiff petitioner alleging that he had committed offence under section 471 IPC and on the basis of that complaint C.R. Case No. 120 of 1991 was registered and the learned Sub Divisional Judicial Magistrate, Lalbag summoned the petitioner under section 471 I.PC And hence the present application.
6. Mr. J.K. Gupta, the learned counsel appearing for the petitioner, assailed the legality of the order that was passed by the lower appellate court under section 341 of Cr.PC and the consequential prosecution on two grounds. First, it is urged that the Impugned order was bad by reason of the fact that the materials before the appellate court were not at all sufficient to give rise to a prima facie satisfaction of that Court regarding the existence of a prima facie case or any reasonable foundation for commission of an offence under section 471 of the I.PC by the plaintiff petitioner so as to Justify the direction for making of a complaint Secondly, it is urged that the Impugned order suffers from another fatal Infirmity by reason of Its non-compliance with the mandatory requirements of recording a specific-finding that it is expedient in the interest of Justice that a complaint be filed.
7. Mr. Manas Ranjan Chakraborty, the learned counsel appearing for the State Respondent, challenged the maintainability of the present application on the following grounds. First, the present revision would not be maintainable in view of the express provisions of sub section (2) of section 341 Cr.PC barring any revision against any appellate decision passed under section 341(1). Secondly, it has been submitted that the application under section 340 Cr.PC having being filed before a Civil Court viz. the Court of Munsiff, Lalbag was governed by the procedure of that Court viz, the Civil Procedure Code and as there was refusal to make any complaint under section 340 by the learned Munsiff and the Misc. -Appeal having been filed under section 341 Cr.PC before the civil appellate court viz. the court of Additional District Judge, continued to be a civil proceeding and was also governed by the Civil Procedure Code. Since by the present application, it is the criminal revisional jurisdiction of this court (and not civil revisional Jurisdiction) that is sought to be Invoked, the application would not be maintainable under Article 227 of the Constitution so as to invoke this court's criminal revlsional jurisdiction.
8. Mr. Dlpak Kumar Mukherjee, learned counsel appearing for the Respondent No.l, adopted the contentions that were raised by Mr. Chakraborty in challenging the maintainability of the instant application.
9. The point for my consideration would be whether the Impugned order and the prosecution are liable to be quashed.
10. Section 195(1)(b) (1) & (11) of the Code of Criminal Procedure, 1973 corresponding to section 195(1)(b) and (c) of the 1898 Code provides that no court shall take cognizance of any offence punishable under section 193 of 1PC when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, and of any offence punishable under section 471 of IPC, when such offence, is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, except on the complaint in writing of that court or of some other court to which that court is subordinate.
11. The procedure for making the complaint is laid down in sections 340 and 341 of the new Code (1973) and in sections 476, 476A and 476B of the old Code (1898).
12. Section 340 of the new Code reads as under:
"340. Procedure in cases mentioned in section 195--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an Inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that court, or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may after such, preliminary Inquiry, if any, as it thinks necessary,--
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having Jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable and the court thinks it necessary so to do, send the accused in custody to such Magistrate, and
(e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of subsection (4) of section 195. (3) .....
(4) .....
13. Section 341 of the new Code runs as follows:
"341. Appeal.--(1) Any person on whose application any court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340. or against whom such a complaint has been made by such court, may appeal to the Court to which such former court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former court might have made under section 340, and, if it makes such complaint, the provisions of that section shall apply accordingly.
(2} An order under this section, and subject to any such order, an order under section 340 shall be final and shall not be subject to revision."
14. Sections 476, 476A and 476B of the old Code, in so far as they are material for the present case, are in the following terms:
"476. (1) When any .....court is, whether on application madeto it in this behalf or otherwise, of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in section 195. sub-section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that court, such court may. after such preliminary inquiry. If any, as it think necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may. If it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate :
(2) .....
(3) .....
"476A. The power conferred on ......... courts by section 476, sub-section(1), may be exercised, in respect of any offence referred to therein andalleged to have been committed in or in relation to any proceeding in any such court, by the court to which such former court is subordinate within the meaning of section 195, sub-section (3) in any case in which such former court has neither made a complaint under section 476 in respect of such offence nor rejected an application for the making of such complaint; and, where the superior Court makes such complaint, the provisions of section 476 shall apply accordingly."
"476B. Any person on whose application any ..... court has refused to make a complaint under section 476 or section 476A, or against whom such a complaint has been made, may appeal to the Court to which such former court is subordinate within the meaning of section 195, sub-section (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, Itself make the complaint which the subordinate court might have made under section 476, and if it makes such complaint the provisions of that section shall apply accordingly."
15. Sub sections (1) and (2) of section 340 of the new Code, in substance, correspond to sections 476 & 476A respectively of the old Code, while sub section (1) of section 341 of the new Code corresponds to section. 476B of the old Code with this difference that under the old Code the superior court may Itself make the complaint while under the new Code it may direct the making of the complaint.
Sub section (2) of section 341 of the new Code is, however, a new provision making an order under sub section (1) final and barring a revision against such an order.
16. Sub-section (1) of section 340 of the new Code and the corresponding section 476 of the old Code speak of two kinds of inquiry. One is an 'Inquiry into the offence', while the other is a "preliminary Inquiry'.
17. On a plain reading of these two provisions. It would appears that the two enquiries are meant for two different courts. The enquiry into the offence is to be made by the court to which the complaint is made, while the preliminary enquiry is to be made by the court by which the complaint is to be made. The preliminary enquiry is to be made for making any complaint, while the enquiry into the offence will have to be made only after the complaint is made.
18. Then again, the expressions "such preliminary enquiry, if any, as it thinks necessary" would clearly suggest that the preliminary enquiry is only optional and neither compulsory nor obligatory and the mode and extent of such an Inquiry is at the discretion of the court. The only purpose for this preliminary inquiry is to form an opinion as to whether the offence concerned appears or does not appear to have been committed. In other words, the preliminary Inquiry is solely for the purpose of a prtma JcuAe satisfaction of the court as to whether the offence, for the Inquiry of which the complaint is to be lodged, appears to have been committed.
19. On a plain reading of the relevant provisions of sub section (1) of section 340 of the new Code as well as section 476 of the old Code, it again becomes clear that before making a complaint, the Court concerned is to record a finding to the effect that it is of the opinion that it is expedientIn the interest of justice that an Inquiry should be made into the offence in question.
20. The offence under section 471 of IPC, in the Instant case. Is alleged to have been committed in respect of a registered deed of sale dated 10.3.38 which was produced by the plaintiff petitioner in Title Suit No.6 of 1981 in the court of Munsif, Lalbag.
21. In order to establish an offence under section 471 of IPC, the following essential Ingredients are required to be proved viz. (1) that the document is forged; (ii) that it has been fraudulently or dishonestly used as genuine and (iii) that such user was coupled with either the knowledge or the reasons to believe that the document is forged.
22. The learned Munsif who held the preliminary enquiry did not attempt to record any prfma facie satisfaction as to whether or not the impugned deed was forged. He, however, was not satisfied as to the existence of a prfma facie case against the plaintiff petitioner to the effect that he fraudulently or dishonestly used the document concerned as genuine with the knowledge or belief that it was a forged one, and in such view of the matter, was pleased to refuse to make a complaint under section 340(1).
23. Subsection (1) of section 341 of the new Code and the corresponding section 476B of the old Code provide for an appeal against such a refusal to make a complaint under sub section (1) of section 340 (new) or section 476 (old), as the case may be. The appellate court may, under sub section (1) of section 341 (new), direct the making of the complaint which might have been made by the original court under section 340 and if it makes such complaint, the provisions of section 340 shall apply accordingly.
24. In the Instant case, the appellate court itself did not lodge the complaint. It directed the making of a complaint by the learned Munsif and the learned Munsif made the complaint in pursuance of that direction.
23. The appellate court on the basis of certain conduct on the part of the plaintiff petitioner drew an adverse presumption against him to the effect that the Impugned deed was a forged one and that he filed it knowing it to be so. The appellate court recorded the above presumption in the impugned order and directed the learned Munsif to make the complaint, as it was of the view that the learned Munsif should be directed to make the complaint. Nowhere in the impugned order Itself, the appellate court of the learned Munsif, before actually making the complaint in pursuance of such direction, did expressly record any finding to the effect that it was expedient in the interest of justice that an Inquiry into the offence under section 471 should be made.
26. In , Dr. Pal Chowdhury v. State of Assam, the case was one in which the High Court directed a complaint to be filed against a witness for giving false evidence under section 193 of IPC and was governed by sub sections (1) and (5) of section 479A of the old Code. Section 479A, as introduced by the Amendment of 1955, overrides the provisions of sections 476 to 479 for the prosecution of a person for giving or fabricating evidence, if in respect of such a person proceedings may be taken under these sections. But the provisions of sub sections (1) and (5) of sec 479A of the 1955 Code correspond more or less to subsectlon(1) of section 340 and sub section (1) of section 341 of the 1973 Code and sections 476 and 476B of the 1898 Code. The combined effect of sub sections (1) and (5) of section 479A is to require the court Intending to make a complaint, to record a finding that in Its opinion a person appearing as a witness has intentionally given false evidence and that for the eradication of the evils of perjury and in the Interest of Justice, it is expendlent that such witness should be prosecuted for the offence and to give the witness supposed to be proceeded against an opportunity of being heard as to whether a complaint should be made or not. The Supreme Court found that none of the above conditions of the section were observed by the High Court when it directed the complaint to be made. In the order of the High Court there was no finding of a prima facie nature recorded by it that the witness had Intentionally given false evidence and that it was expedient to proceed against him for the eradication of the evils of perjury and in the Interest of Justice. The Supreme Court held that the order was made in breach of the express provisions of both sub sections (1) and (5) of section 479A and could not be allowed to stand.
27. In , Chajoo Ram v. Radhey Shyam, an application under section 476 of the old Code was moved before the High Court for sanctioning prosecution for perjury. The Supreme Court held that before sanctioning prosecution for perjury the court must be satisfied that there is a primafacte case of deliberate falsehood on a matter of substance and that there is reasonable foundation for the charge.
28. In , K. Karurtakaran v.T.V. Eachara Warrier, it was held that in an Inquiry before lodging a complaint under section 340 of the new Code, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specific offence and whether it is also expedient in the interest of justice to take such aciton.
29. In the case of Surendra Nath Jana v. Kumeda Charon Misra , the facts are almost similar to those of the present case. In that case, a complaint was ordered to be drawn up on appeal by the District Judge under sections 465 and 471 1PC and although the learned District Judge gave a finding that a clear prtmajacte case had been made out yet he failed to record a finding that it was expedient in the Interest of Justice that a complaint should be filed, as required under section 476 (old). K was urged before the Division Bench of our High Court that the fact that a prima facie case had been made out coupled with the fact that the complaint had been ordered was sufficient to enable the court to Infer that the opinion of the lower appellate court was that it was expedient in the Interest of Justice that such an Inquiry should be made. But this contention was repelled by our High Court and it was held that it is not possible to say that an express statutory provision for a finding to be recorded is satisfied by inferences which may or may not be drawn from other findings of facts arrived at by the lower appellate court. In such view of the matter, the order of the District Judge was set aside.
30. This Division Bench Judgment of our High Court was relied upon by the Rajasthan High Court in the case of Brijmohanlal v. Sohanraj reported in 1963(1) Cri. LJ 713 and it was held that the requirement of recordingof a finding that it is expedient in the Interest of Justice that a complaint be filed under old section 476 {which corresponds to section 340 of the present Code) that an enquiry should be made into the offence is mandatory and is a pre-requisite for making of a complaint and if such a requirement is not compiled with before the order of prosecution is passed, the order is vitiated and deserves to be set aside, as being in the breach of the express provisions of section 476 (old).
31. In the case of K.K. Khanna v. M/s. Expo Enterprises India, New Deth reported in 1984 Crt. LJ 1723. a criminal complaint for offences alleged to have been committed under section 191 read with section 193 of IPC was directed to be lodged under section 340 of the new Code. The Order for lodging the complaint was held by the Delhi High Court to have been vitiated since it was nowhere opined in the order Itself or recorded as a fact that the lodging of the complaint was expedient in the Interest of a Justice as required under section 340.
Incidentially, it may, be pointed out that the Supreme Court in the case of Santokh Singh v. Izhar , observed :
"Every Incorrect or flase statement does not make it Incumbent on the court to order prosecution. The court has to exercise Judicial discretion in the light of all the relevant circumstances when it determines the question of expediency".
"The court orders prosecution in the larger Interest of the administration of Justice and not to gratify feelings of personal revenge or vlndictlveness or to serve the ends of a private party."
Relying on those observations of the Supreme Court, the Delhi High Court in K.R. Khanna's case (supra) further held: "The requirement of law was of fundamental Importance and the omission in that regard vitiates the Impugned order. Even though prosecution for perjury may be possible but section 340 of the Code does not permit compliant to be lodged in all those cases and lodging the complaint is permissible only when the court making the complaint is of the positive view that the lodging of the complaint would be expedient in the Interest of Justice".
32. Thus, upon a plain reading of sub section (1) of section 340 of the present Code of Criminal Procedure and consideration of the decisions cited above, it is found that the law is well settled on the point that an order for lodging a complaint under section 340 without expressly recording any finding to the effect that it is expedient in the Interest of Justice that an Inquiry should be made into the offence concerned is vitiated and illegalbeing in breach of the express provisions of section 340(1) and is liable to be set aside. The learned counsels appearing for the opposite parties were also frank enough to concede this legal position.
33. It is thus needless to comment that the Impugned order directing making of complaint and the consequent prosecution based on that order were per se illegaland are liable to be quashed on that ground alone.
34. When the impugned order is liable to be set aside only by reason of the fact that it did not comply with the mandatory requirements of recording an express finding to the effect that it is expedient in the Interestof Justice to make a complaint under section 340(1), the question whether or not materials on record were sufficient to give rise to the satisfaction of the court below regarding the existence of a prima facie case under section 471 of IPC so as to justify lodging of a complaint does not call for any decision by this court and accordingly, 1 need not examine the impugned order so as to find out whether or not it also suiters from the infirmity in this regard.
36. I now come to the question of maintainability that was raised on behalf of the opposite parties. Sub-section (2) of section 341 Cr.PC provides that an order under sub-section (1) of the section shall be final and shall be not be subject to revision. The corresponding section 476B of the old Code did not, however, contain any such provision. In view of the express bar under sub-section (2) of section 341 of the new Code, the impugned order is not subject to revision.
36. But, in the case of Lalit Mohan Mondal v. BInayendra Chakraborty . It was held that although an order passed in appeal under section 341 Cr.PC would not be revlsable by the High Court, there could be no doubt that the High Court is entitled to examine the matter under section 482 Cr.PC which expressly overrules the bar contained in section 341 of the Code.
37. The Impugned order which constitutes the very foundation of the Impugned prosecution against the petitioner being illegaland bad. It would be sheer abuse of the process of the court to allow the said order to stand or the prosecution to be proceeded with. It cannot, therefore, be said that it is not a fit and proper case for exercise of the Inherent jurisdiction of the Court under section 482 of the Cr.PC in order to prevent the abuse of the process of the Court.
38. The present application, of course, has been styled as one under Article 227 of the Constitution and not under section 482 of the Code of Criminal Procedure. Now, inherrent powers are not conferred but are. Inherrently possessed. Section 482 gave no new powers but preserved only those which this court are already Inherrently possessed of by virtue of Its duty to do Justice. As such, the mere fact that the present application has not been described, in so many words, as one under section 482 cannot disentitle this Court to pass such order as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice. In this view of the matter. It would necessarily follow that the Impugned order of the lower appellate court and the consequent prosecution should be quashed in exercise of Inherrent powers of this court in order to prevent the abuse of the process of the court.
39. The question that still awaits my decision for academic purpose is whether the present application by which the petitioner purports to Invoke the criminal revisional Jurisdiction of this Court tinder Article 227 of the Constitution is maintainable.
40. It is contended on behalf of the opposite parlies that since the application under section 340(1) and the appeal under section 341 of the Code of Criminal Procedure were filed before Civil Courts, they were governed by the Code of Civil Procedure with the result that the proceedingwhich forms the subject matter of challenge in the instant application under Article 227 of the Constitution is a civil proceeding and not a criminal proceeding but since by this application the criminal jurisdiction is sought to be invoked, the application is not maintainable.
41. A Division Bench decision of our High Court reported in I98!(l) CHN 415, Sambhu Nath Sadhukhan v. Meghesh Kumar Sadhukhan, has been cited on behalf of the opposite parties in support of the above contention.
!n that case, which was governed by the old Code of Criminal Procedure, two questions fell for determination of the court. The first question was whether an application filed under section 476 of the old Code (which corresponds to section 340(1) of the new Code) in a Civil Court is to be governed by the Code of Civil Procedure or the Code of Criminal Procedure and the second question was whether a revlslonal application against any order passed in such proceeding is to be made under section 115 of the Code of Civil Procedure or section 439 of the old Code of Criminal Procedure.
On the first question, the court considered the diametrically opposite views taken by Full Benches of different High Courts and held that so long the Court is not forced to change its character by express provision. It must maintain its own character. Or, in other words, it was held that when the legislature is silent as to the procedure to be followed for dealing with an application under section 476 (old) or an appeal under section 476B (old), it must be governed by the Code of Civil Procedure, the procedure of the Civil Courts, if filed before a Civil Court, or by the Code of Criminal Procedure, the procedure of the criminal court, if filed before a criminal court So far as the ancillary question relating to the revlslonal application formulated above is concerned, the Court relied on a Full Bench decision of our High Court in the case of Harprosad Dos v. Emperor reported in 17 Calcutta Weekly Notes Page 647 wherein it was expressly laid down that in case of an order passed under section 476 of the old Code by a Civil -Court, section 439 of the old Code of Criminal Procedure had no application as it was not an Inferior criminal court and that such an order could be revised by the High Court only under section 115 of the Code of Civil Procedure. In Sombhunath Sodhukhan's case (supra), the application under section 476 of the old Code filed before a Civil Court was dismissed for default and the court allowed an application under Order 9 Rule 9 and section 151 of the Code of Civil Procedure that was filed for setting aside the order of dismissal and restored the original application under section 476 Cr.PC. Aggrieved thereby, one of the opposite parties in that application moved the High Court in Its criminal revlslonal jurisdiction by filing an application which was described as one under Article 227 of the Constitution and sections 397/401 read with section 482 of the Code of Criminal Procedure, 1973. Relying on the Full Bench decision of our High Court in the case of Harprosad Dos v. Emperor (supra), the Court held that the said application was not maintainable is so far as it sought to Invoke the criminal revlsional powers of the court. On the question of maintainability of the application under Article 227 of the Constitution, it observed: "Instituting the application as one under Article 227 of the Constitution of India is of no assistance to petitioner as the law is now settled that the aboveconstitutional provision cannot be availed of to circumvent specific provision of statute and section 115 of the Code of Civil Procedure provides for effective and adequate remedy to meet the needs of the Instant case".
42. According to Mr. J.K. Gupta, the decision in Sambhunath's case (supra) is distinguishable from the present case on the following grounds. The order under revision in that case was passed under Order 9 Rule 9 CPC and it was revisable by the High Court under section 115 of the Civil Procedure Code which also provided for adequate and effective remedy to meet the needs of that case, but it is the appellate decision reversing the refusal of the initial court to make a complaint under section 340 of CRPC and directing the lodging of a complaint that forms the subject matter of challenge in the present case. That apart, sub section (2) 6f section 341 (new) expressly bars a revision against such an order under sub section (1) of section 341 while in section 476B of the old Code, there was no such provision as envisaged in sub section (2) of section 341 of the new Code expressly banning any revision. That being so, it is strenuously contended by Mr. Gupta that the said case cannot be of any assistance to the opposite parties in resisting the present application under Article 227 and, indeed, I do not find any cogent ground to reject this contention.
43. Now, it is settled law that the power under Article 227 of the Constitution involves a duty on the part of the High Court to keep all courts within the bounds of their authorities and to see that they do what their duty requires. This power under Article 227 can also be exercised by the High Court suo motu and is not governed by any "technical rules as applicable in cases of exercise of power under Article 226.
44. It is also settled law that the powers of the High Court under Article 227 cannot be taken away or barred by any legislation short of constitutional amendment nor can it be barred by providing that the decision of an Inferior tribunal shall be final. Incidentally, the case of State ofCuJarat v. V.K. Singhji can be cited here in support of the above proposition.
45. Now, when the High Court finds that the inferior court, Civil or CriP1 minal, has not acted according to the mandate of law resulting in gross abuse of the process of the court, the extraordinary power of the High Court under Article 227 of the Constitution can always bee exercised. It is true that the proceeding concerned being civil proceeding all along by reason of the fact that it was being conducted in the inferior Civil Courts, it is the Civil Jurisdiction of this Court that ought to have been Invoked by the petitioner for correcting the error that has been committed in the proceeding. But then, it would be too much to hold that the petitioner would not be entitled to get any relief which, in the facts and circumstances of the case, could have been granted by this court in exercise of Its power of superintendence under Article 227 of the Constitution only on the hypertechnical ground that, strictly speaking, the civil jurisdiction (and not the criminal Jurisdiction) of this court should have been Invoked by the petitioner at the first Instance when the application was initially admitted.
48. Thus, having anxiously considered all aspects of the matter, I am of the view that there is no legal bar to granting the reliefs sought for bythe petitioner in the Instant case. In the result, the application succeeds. The impugned order of the learned Additional District Judge passed in the Misc. Appeal No. 60 of 1989 directing the lodging of the complaint against the petitioner under section 471 of 1PC and the subsequent Initiation of the prosecution on the basis of a complaint lodged by the learned Munsiff in pursuance of the said direction of the learned Additional District Judge are hereby quashed. The application is thus disposed of.
49. Application disposed of