Patna High Court
The State Of Bihar, The Cabinet ... vs Shri Lakshman Shukla, Deputy ... on 5 September, 1990
Equivalent citations: 1991(39)BLJR1209
JUDGMENT Krishna Ballabh Sinha, J.
1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been filed against the order dated 27-2-1986, as contained in Annexure-5, passed by the Special Judge (Vigilance), Patna, by which it was held that there was lack of evidence for framing charge against opposite party Nos. 1, 2 and 3 and consequently they were discharged. By the same order charges were framed against some of the accused and so prayer has been made to partially quash the order so far it relates to the opposite parties only.
2. This case has a chequered history. It was admitted on 12-1-1987 and was ordered to be listed for hearing by a Division Bench on 16th February, 1987. It was heard on 8-4-1987, 9-4-1987 and 10-4-1987 by a Bench of this Court and the judgment was reserved. In course of argument it transpired that one of the points raised in this case was the subject-matter of consideration before a Full Bench in Cr. Misc. case No. 4073 of 1986. Therefore, this case was also referred for hearing with the said case. The Full Bench by the order dated the 15th January, 1990 decided the question referred for consideration. When both the cases were listed for hearing before a Bench, Learned Counsel appearing on behalf of the opposite party pointed out that there was no common point for determination in the said two cases and thus they should be heard separately. The Learned Counsel appearing on behalf of the State also conceded and thus it has come for hearing before us.
3. In order to appreciate the argument advanced on behalf of the parties, it is necessary to notice some broad facts of the case. The prosecution was launched in this case on the basis of the First Information Report (Ext. 1) lodged by the Inspector of Police, Cabinet (Vigilance) Department, Government of Bihar, Patna. The F. I. R. runs in 45 foolscape pages. The police registered a case and after completing investigation submitted charge-sheet. Before initiation of the prosection, a preliminary enquiry was made by the Cabinet (Vigilance) Department.
According to the case of prosecution, three Compensation Cases under the Bihar Land Reforms Act, 1950 (hereinafter referred to as 'the B. L. R. Act') were started at Dhanbad upon receipt of application filed by accused K.N. Banerjee. In Dhanbad Compensation Case No. 1/74-75 and Dhanbad Compensation Case No. 3/74-75, compa and Dhanbad Compensation Case No. 3/74-75, compensation was claimed by the said accused for interest in the mines of the Central Manbhum Coal Company Pvt. Ltd. and the Durajpur Rice Mill Co. Pvt. Ltd. in the capacity of the Director. In the third, Dhanbad Compensation Case No. 1/71-72 relating to the Yadav Lal Trust Estate, Compensation was claimed for the interest in the mines and accused K.N. Banerjee. posed to be the Managing Trustee. The said two Limited Companies and the Trust were shown to be located in Labhpur in the district Birbhum in West Bengal.
In course of investigation, it was found that accused K.N. Banerjee had no genuine connection with the said business concerns and the Trust at the relevant time for which compensation was paid. It was further found that the said Companies and the Trust were not entitled to compansation in respect of intermediary mining interest under the provisions of the B. L. R. Act, 1950 read with the Bihar Land Reforms Rules, 1951. Further the case of prosecution is that accused K.N. Banerjee claimed and was paid compensation on the basis of forged receipts purported to have been granted in respect of return filed on behalf on the said company in the year 1956. On enquiry, it was found that no such return was filed and the receipts produced by accused K.N. Banerjee were forged and fabricated documents. Accused K.N. Banerjee had also filed copies of some deeds on the basis of which compensation was paid and in course of investigation, the said deeds were also found to be forged.
4. In Dhanbad Compensation Case No. 1/71-72, accused K.N. Banerjee took the plea that the original return and the receipts granted in token of having submitted the same were lost. Sri D.P. Yadav, opposite party No. 2, who was the then Deputy Collector Incharge Land Reforms (in short 'L. R. D. C) readily accepted the duplicate returns and endorsed the same to the District Mining Officer for verification. He also attested the copy of the alleged receipt on the very date of filing. Opposite party No. 3, who was then Clerk in the office of the L. R. D. C., Dhanbad, compared some deeds and made endorsement that the copies were true and opposite party No. 2 attested the same.
5. It is alleged that opposite party No. 1, the then Deputy Commissioner, Dhanbad, passed order approving the publication of the Compensation Assessment Roll after discussion with the then Additional Collector, who was the Compensation Officer. According to the prosecution, the said order was passed in violation of the provisions of the B. L. R. Act to facilitates illegal payment of compensation to accused K.N. Banerjee.
6. It transpired in course of investigation that huge amount of compensation was illegally paid to accused K.N. Banerjee in collusion with the other accused, including the opposite parties, who were posted as Government servants at Dhanbad at the relevant time. The payment in the shape of bonds for Rs. 1,48,60,950.00 (one crore forty-eight lakh sixty thousand nine hundred fifty only) and in each of Rs. 65,11,259.14 (sixty-five lakh eleven thousand two hundred fifty nine and paise fourteen only) was made in flagrant violation of statutory provisions of the B. L. R. Act and the Rules framed thereunder.
7. A detailed account of the part played by each accused, including the opposite party, in making illegal payment to accused K.N. Banerjee and his associates but it is not necessary to narrate the entire case upon receipt of the charge-sheet submitted by the police, the Special Judge (Vigilance), Patna, took cognizance of the offence punishable, under Sections 420-B, 467, 468, 471, 477-A and 420 of the Indian Panel Code and 5 (i) (c) and (d) of the Prevention of Corruption Act on 27-2-1986. The said order has been partly challenged by the petitioner.
8. It was contended by Mr. B.P. Pandey, the learned senior Counsel appearing on behalf of the petitioner, that there was sufficient material before the Court for framing the charge against the opposite party. According to Mr. Pandey, the finding recorded by the Special Judge was absolutely against the weight of evidence on the record. It was urged that a bare perusal of the record and the relevant documents would disclose that opposite parties were as much responsible for causing huge loss to the State exchequer as the other accused against whom cognizance of the offences was taken by the order under challenge.
9. Mr. P. N. Pandey, learned Senior Counsel appearing on behalf of opposite party No. 1, raised a preliminary objection regarding the maintainability of this petition. It was contended that there was specific provisions in the Code of Criminal Procedure for filing a revision against the impugned order but instead of taking recourse to the same, the petitioner had wrongly filed this application labeling it under Section 482 of the Code of Criminal Procedure in order to avoid the impediment of limitation. It was urged that illegality of impropriety or incorrectness, if any, occurring in the order could have been easily set right by the High Court in revisional jurisdiction in exercise of the power under Sections 397 and 402 of the Code.
10. Learned Counsel for opposite party No. 1 tried to draw support from Suresh Pd. Sintta v. Nageshwar Pathak, 1975 BBCJ 300. In that case a charge under Section 420 of the Indian Penal Code was framed against the accused, who filed an application under Section 482 of the Code for quashing the prosection pending against him. One of the points raised before the learned single Judge was that the framing of the charge was an interlocutory order and hence a revision was barred under Sub-section (2) of Section 397 of the Code. It was also urged that the petitioner by labelling the petition under Section 482 of the Code wanted to avoid the statutory bar created under Section 397 of the Code. This argument was accepted and the petition was dismissed.
In my view this case is of no aid to the opposite party. The order under challenge cannot be said to be interlocutory. It is final so far as the opposite parties are concerned and consequently it has to be held that the petitioner has not circumvented a method to tide over the barrier created under Section 397 or 401 of the Code by putting the label of Section 482 of the Code in this petition.
11. Reliance was also placed by Learned Counsel appearing on behalf of opposite party No. 1 on Khushi Ram v. Hashim and Ors., AIR 1959 SC 542. In that case, the accused were committed to the Court of Session to face trial. The order of commitment was challenged by the accused before the Allahabad High Court by an application under Section 561-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code'), which corresponds to Section 482 of the Code of Criminal Procedure of 1973. The learned Single Judge allowed the application made by the accused and quashed the order of commitment passed by the learned Magistrate. This matter went up before the Supreme Court and it was held that inherent powers of the High Court under Section 561-A of the old Code would not be invoked in regard to the matters which were directly covered by the specific provision of the Code.
12. Under Section 213 of the old Code, a Magistrate of competent jurisdiction was empowered to commit the accused to the Court of Session to face trial in a case instituted otherwise than on a police report. Section 215 of the old Code conferred power on the High Court to quash the order of such commitment on the point of law. As a specific provision was made under Section 215 of the old Code, so it was held by the Supreme Court that the inherent power of the High Court under Section 561-A could not be exercised in regard to such matters.
13. Learned Counsel appearing on behalf of the parties heavily relied on --Madhu Limaye v. The State of Maharashtra, in support of their contention. In the said case the questions posed for consideration were whether the High Court could exercise its inherent powers to quash an interlocutory order within the meaning of Section, 397(2) of the Code and whether the bar contained in that provision precluded the High Court in exercising the powers under Section 482 of the Code? In the instant case, we are not concerned with the meaning of the expression 'interlocutory' as appearing in Section 397(2) of the Code. After consideration of the scope and ambit of Section 397(2) and 482 of the Code, it has been laid down that generally, almost invariably, barring few exceptions, the inherent power of the High Court is not to be resorted to if there is a specific provision in the Code for the redressal of the grievance of the aggrieved party. It should not be exercised as against the express bar of law ingrafted in any other provision of the Code. It has also been held that on plain reading of Section 482 of the Code it would follow 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, to prevent the abuse of the process of any Court of otherwise to secure the ends of justice. Learned Counsel for the petitioner highlighted the later part of the finding whereas on behalf of the opposite party stress was laid on the former part of the finding recorded in this case.
14. Learned Counsel for the petitioner did not challenge, and could not have challenged, the principle laid down by the Supreme Court in the cases, mentioned above. But it was contended that there was no specific provision in the Code under which the order in question could be challenged. On the other hand, it was argued on behalf of the opposite party that when specific provision was made in the Code it was not open to the petitioner to invoke the extraordinary jurisdiction of this Court under Section 482 of the Code.
15. In view of the contentions raised on behalf of the parties the questions posed for consideration are as to whether there is any specific provision in the Code to deal with the situation as created in the instant case and whether the power under Section 482 of the Code is fettered by the provisions of Sections 397 and 401 of the Code ?
16. As regards Section 397 of the Code, it is an enabling section which vests power in the High Court and the Sessions Judge to call for and examine the record of any proceeding pending before any inferior court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of such inferior court. Section 401 of the Code specifies the revisional power of the High Court in dealing with any proceeding the record of which has been called for under Section 397 or which otherwise come to its knowledge. It further lays down that the High Court may, at its discretion, exercise any of the powers conferred on Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 subject to the limitations mentioned in Sub-sections (2), (3) and (4). The powers to be exercised in appeals and revisions are statutory and not inherent. The revisional power under this section cannot be exercised lightly but in exceptional cases, where the interest of justice necessitates interference for correction of a manifest illegality or to prevent a gross miscarriage of justices. Though, according to this section, the power conferred in revision on the court is as wide as in an appeal but it has to be used only sparingly in appropriate cases.
17. According to the opposite party, the only remedy available to the petitioner was to file a revision against the impugned order which could have been appropriately dealt with by this Court under Sections 397 and 401 of the Code. If the interpretation of Section 401 of the Code made on behalf of the opposite party is accepted, it would immensely enlarge the scope of revision and would take within its sweep any order passed under the Code except only those of certain natures in relation to which restrictions have been imposed under the said provision. Such wide power of the revisional court would leave no field uncovered for application of the provision of Section 482 of the Code and thereby this provision would become superfluous. According to the well known cannons of interpretation, when there are two provisions in an enactment, overlapping each other, which cannot be reconciled, they should be interpreted harmoniously so as to give effect to both. The construction which makes one of the provisions useless cannot be said to be harmonious. If a special provision has been made in a statute on a particular matter that has to be excluded from the general provision.
18. As regards Section 482 of the Code, it is well-settled that it does not confer any power on the High Court. It recognises and preserves the inherent powers of the High Court to make such an order as may be necessary to give effect to any order under this Code to prevent abuse of the process of any Court or otherwise to secure the ends of justice. From the opening words of Section 482, it is abundantly clear that it is not controlled by any other provision of this Code. It is significant to note that this section itself says that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court. Though it is not possible or advisable to precisely lay down any rule of universal application which would govern the exercise of inherent powers of the High Court but it is well-settled that this power cannot be used in regard to matters specifically covered by any other provision of the Code. The purposes for which this power can be used are the only limitation in exercise of this power. Thus, the limitation is self restraint. If glaring injustice is noticed on the face of the record, nothing in the Code will stand in the way in exercising this power by the High Court.
19. I would like to refer to Raj Kapoor v. State (Delhi Administration and Ors.), 1980 SC 258, in which almost the same questions fell for consideration and the principle laid dawn in Madhu Limaye (supra), has been reiterated. After elaborately dealing with the scope of the provisions of Section 482 of the Code and Sections 397 and 401 of the Code it has been held thus:
The first question is as to whether the inherent power of the High Court under Section 482 stands reelled 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 specific provision is made, easy resort to inherent power is not right except under compelling circumstances.
(sic) objections made under Section 27. Further provision has been made under Sections 30 and 30-A for making correction in the Compensation Assessment Roll,
20. At this stage it would be relevant to refer to Rule 21 of the Bihar Land Reforms Rules, 1951 which prescribes the manner of publication of Draft Compensation Assessment Roll under Section 26, which runs thus:
22(1) After the draft of the Compensation Assessment Roll under Sections 19, 24-A, 25 or 30-A, as the case may be, has been prepared, the Compensation Officer, with the approval of such authority as may be notified by Government in this behalf shall publish the same by affixing a copy thereof together with a public notice in Form P(6) to the notice board of the office where the Draft Compensation Assessment Roll has been prepared The Compensation Assessment Roll should be published for a period of 30 clear days............
21. It was stated by Learned Counsel for the petitioner that the Collector of the district was the prescribed authority at Dhanbad under this rule and the Additional Collector was the Compensation Officer, which was not disputed by the other side. It was pointed out that the draf Compensation Assessment Roll was to be published with the approval of Opposite party No. 1 as prescribed under Rule 21 of the B. L. R. Rules. It was argued on behalf of opposite party No. 1 that the Additional Collector sent the records of the said compensation cases to the Collector (opposite party No. 1) for approval on 13-11-1976. The Collector made query and thereafter approved for publication of the Compensation Assessment Roll by his order dated 17-11.1976. The State Government had already sanctioned the amount for payment of compensation to accused K.N. Banerjee and thus nothing was left to be done by the said opposite party.
22. Learned Counsel for the petitioner urged that the fact stated In the order sheet disclosed the criminal intention of opposite party No 1. In the order sheet dated 13-11-1976, a proposal was made by the then Additional Collector for payment of compensation in the shape of bonds and opposite party No. 1 passed an order on 16-11-1976 asking the Additional Collector to discuss the matter. Thereafter, in the order dated 17-11-1976, it is mentioned that he (opposite party No. 1) discussed the matter with the Additional Collector and the proposal put up the latter was approved. It was submitted that no proposal was sent to opposite party No. 1 to approve either the preliminary or final publicant on of the Compensation Assessment Roll. The approval was sought for making payment of compensation in the shape of bonds which was approved on 17-11-1976 after discussion with A.D.M. This fact is clearly borne out by the copy of the order sheet of the compensation case produced by the Learned Counsel for the petitioner.
23. Referring to the order sheet of the compensation case it was argued on behalf of opposite party No. 1 that order dated 23-11-1976 would disclose that opposite party No. 1 had given direction for publication of the Preliminary Compensation Assessment Roll. It was contended on behalf of the petitioner that having passed an order for making payment of compensation in the shape of bonds, there was no sense in passing an order for publication of Preliminary Compensation Assessment Roll.
24. On the facts and circumstances mentioned above it is difficult to appreciate the findings recorded by the learned Special Judge that opposite party No. 1 came in picture only after the matter was over and he had signed the Draft Compensation Assessment Roll in a routine manner three companies. There is nothing on the record to show that these accused had either attested the copies without there being the originals or that they knew or had reason to believe that the deed which they were attested to be true were forged and fabricated documents. That being so no dishonest intention can be attributed to them. I, therefore, find that no case against them is also made out.
25. I would rafrain from expressing any opinion on the merit of the case it may cause prejudice to either party at the trial. But is it worthwhile to note some self contradictory findings recorded by the court below. A categorical finding has been recorded by the learned Special Judge that the attested copy of the deed filed by accused K.N. Banerjee in support of his claim was forged and fabricated piece of document. He has also mentioned that opposite party Nos. 2 and 3 attested the deed to be true even then he has observed that they (opposite party Nos. 2 and 3) had played no part in the case in which compensation was allowed to accused K.N. Banerjee. From what has been stated by the learned Special Judge about opposite party Nos. 2 and 3 it would appear as if the originals documents were produced when the said opposite parties attested the copies to be true. According to the Learned Counsel for the petitioner, it is factually incorrect to say that the original deed was ever produced by accused K.N. Banerjee at any stage of the case. It is difficult to appreciate the reasonings given by the learned Special Judge that though some of the deeds were found to be forged but the persons who were instrumental in creating the same did not play any significant role.
26. Learned Counsel appearing on behalf of the petitioner urged that while dealing with the case of opposite party No. 1, the Special Judge again committed an error of record by stating that payment of compensation was finalised before the said opposite party joined at Dhanbad on 28-7-1975. In course of argument he referred to the relevant provisions of the Bihar Land Reforms Act, 1950 (Bihar Act 30 of 1950) as amended from time to time.
27. Section 19 empowers the State Government to appoint Compensation Officer to prepare in prescribed form a Compensation Assessment Roll.
Section 25 deals with computation of compensation payable for mines and minerals. According to this section the Compensation Officer has to prepare in the prescribed form and in the prescribed manner a Compensation Assessment Roll containing in respect of every intermediary in receipt of royalities an account of mines and minerals or directly working mines comprised in the estate of tenure.
Under Section 26, the Compensation Officer has to make publication of the Compensation Assessment Roll in the prescribed manner. Sub-section (b) of Section 26 lays down that the Commissioner of the division, the Collector of the District or any other officer not below the rank of a Deputy Collector authorised in this behalf by the State Government may, before the publication of the draft Compensation Assessment Roll, issue such directions to the Compensation Officer in regard to the computation of compensation and matters relating thereto as he may consider fit.
As provided under Section 28, final publication of the Compensation Assessment Roll has to be made to give effect to any orders passed on objections made under Section 27. Further provision has been made under Sections 30 and 30-A for making correction in the Compensation Assessment Roll.
28. At this stage it would be relevant to refer to Rule 21 of the Bihar Land Reforms Rules, 1951 which prescribes the manner of publication of Draft Compensation Assessment Roll under Section 26, which runs thus:
22(1) After the draft of the Compensation Assessment Roll under Sections 19, 24-A, 45 or 30-A, as the case may be, has been prepared, the Compensation Officer, with the approval of such authority as may be notified by Government in this behalf shall publish the same by affixing a copy thereof together with a public notice in Form P (6) to the notice board of the office where the Draft Compensation Assessment Roll has been prepared The Compensation Assessment Roll should be published for a period of 30 clear days.....
29. It was stated by Learned Counsel for the petitioner that the Collector of the district was the prescribed authority at Dhanbad under this rule and the Additional Collector was the Compensation Officer, which was not disputed by the other side. It was pointed out that, the draft Compensation Assessment Roll was to be published with the approval of opposite. party No. 1 prescribed under Rule 21 of the B.L.R. Rules. It was argued on behalf of opposite party No. 1 that the Additional Collector sent the records of the said compensation cases to the Collector (opposite party No 1) for approval on 13-11-1976, The Collector made query and thereafter approved for publication of the Compensation Assessment Roll by his order dated 17-11-1976. The State Government had already sanctioned the amount for payment of compensation to accused K.N. Banerjee and thus nothing was left to be done by the said opposite party.
30. Learned Counsel for the petitioner urged that the fact stated in the order sheet disclosed the criminal intention of opposite party No. 1. in the order sheet dated 13.11-1976, a proposal was made by the then Additional Collector for payment of compensation in the shape of bonds and opposite party No. 1 paised an order on 16-11-1976 asking the Additional Collector to discuss the matter. Thereafter, in the order dated 17-11-1976, it is mentioned that he (opposite party No. 1) discussed the matter with the Additional Collector and the proposal put up the latter was approved. It was submitted that no proposal was sent to opposite party No. 1 to approve either the preliminary or final publicant on of the Compensation Assessment Roll The approval was sought for making payment of compensation in the shape of bonds which was approved on 17-11-1976 after discussion with A.D.M This fact is clearly borne out by the copy of the order sheet of the compensation case produced by the Learned Counsel for the petitioner.
31. Referring to the order sheet of the compensation case, it was argued on behalf of opposite party No. 1 that order dated 23-11-1976 would disclose that opposite party No. 1 had given direction for publication of the Preliminary Compensation Assessment Roll. It was contended on behalf of the petitioner that having passed an order for making payment of compensation in the shape of bonds, there was no sense in passing an order for publication of Preliminary Compensation Assessment Roll.
32. On the facts and circumstances mentioned above, it is difficult to appreciate the findings recorded by the learned Special Judge that opposite party No. 1 came in picture only after the matter was over and he had signed the Draft Campensation Assessment Roll in a routine manner.
33. It need not be emphasised that the scope for appraisal of evidence at the stage of framing of the charge is not as wide as at the final stage of the trial. It is not the stage to balance the materials produced by the prosecution on a sensitive scale to find out whether there are sufficient evidence for conviction of the accused. If the material on the record creates strong suspicion against the accused that is enough for framing the charge.
34. In view of the foregoing discussions, this petition is allowed and the order, so far as It relates to opposite party Nos. 1, 2 and 3 is set aside, The case is remitted to the learned Special Judge for passing a fresh order in accordance with law and in the light of the observations made above.
Shamimul Hoda, J.
35. I agree.