Krishnan
& ANR Vs. Krishnaveni & ANR [1997] INSC 64 (24 January 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK K. Ramaswamy,
J.
ACT:
HEAD NOTE:
Leave
granted.
This
appeal by special leave arises form the judgment dated 26th March, 1992, passed
by the Madras High Court in Crl. O.P. No. 10678 of 1991 The Facts relevant for
out purpose are that in a litigation between Krishnaveni, the first respondent
and Tulasiammal , The Second wife of her husband, Chinnikrishnan, the first
appellant, Krishnan had offered his services and promised to help the first
respondent in conducting the said litigation and asked her to execute a power
of attorney for that purpose in his favour, It is the case of the first
respondent that on faith of the promise of the first appellant, she went to
sub-Registrar's office at Madurai where the first appellant made her sign on
some stamp papers in the presence of the sub Registrar. Later it transpired the
first appellant had got her signature on an agreement to sell her land (which
indicated that she had received Rs. 20,000/- and not the power of attorney as
she was given to under stand. According to the first respondent, when the
appellants came to her house on April 15 1989 and demanded money purported to
have been spent by the first appellant in the litigation and wanted her to
execute the sale deed in her favour, she made enquiries and came to know that
the first appellant had played fraud upon her with dishonest intention to cheat
her and obtained her signatures on the purported agreement to sell dated
September 13, 1986, consequently, She lodged a complaint with the police on
April 24, 1989 and the crime came to registered as Crime No. 31 of 1989 under
Section 420 and 406 IPC, The Sub-Inspector after investigation submitted a report
stating that the case was essentially of civil nature and no criminal case was
made out. There upon the first respondent feeling aggrieved, brought the matter
to the notice of superintendent of Police, Madurai and requested him to assign the same to another officer to make an
honest investigation. Accordingly, the Inspector of Police, Crime Branch was
entrusted with the investigation after through investigation, the inspector
filed the charge- sheet under Section 173 Crl P.C. on December 4, 1989 which disclosed commission of the
offences under sections 420 and 406 IPC. On receipt thereof, the Judicial
magistrate No.1, Madurai had taken cognizance of the
offences and issued summons on February 22, 1990.
Thereupon the appellants filed an application to discharge them. The Magistrate
on the said application discharge them/. The magistrate on the said application
discharged the accused in Criminal M.P. NO. 262 OF 1990 by order dated 22nd February, 1990 The respondents feeling aggrieved
thereby, Filed Revision Applications before the Sessions Judge and the matter
was transferred to the First Additional Sessions Judge who by order dated March 26, 1991 dismissed the revision petition .
On a
further Revision Filed by the first respondent in the High Court, by Order dated
March 26,1992 it allowed the Revision by the impugned order and set aside the
order of the Magistrate and directed him to consider the facts on merits at the
trail, Thus this appeal buy special leave.
When
the matter had come up for hearing upon consideration of the decision cited by
the learned counsel for the appellants, in particular Dharampal & ORS. V/S Ramshri
(Smt.) & Ors. [(1993)] 1 SCC 435 and Rajan Kumar Manchanda V/s State of Kerala {(1990 supp. SCC 132) the matter
was referred to a three-Judge Bench. Thus the appeal has come up before us.
Shri
Krishnamurthy, learned counsel for the appellants, contended that the State as
well as the respondents having availed of the remedy of revision under Section
397 of the code of Criminal Procedure, 1973 {for short, the "code"}
the high court was devoid of power sand jurisdiction to entertain the second
revision due to prohibition buy section (3) of Section 397 of the Code,
therefore the impugned order is one without jurisdiction and vitiated by
manifest error of law warranting interference, In support of his contention,
the learned counsel placed strong reliance on the abovesaid two decisions of
this court. The further contended that when there is prohibition under section
3297 (3) of the code, the exercise of the power being in violating thereof, is
non est. he further placed reliance on the decision of his court in Simrikhia
V/S. Dolley Mukherjee & Chhabi Mukherjee & Anr, [(1990) 2 SCC 437 ] and
Deepti @ Aarati Rai V/s Akhil Rai & Ors [JT 1995 (7) SC 175]. The question
therefore, is; whether the high court has power to entertain a Revision under
section 397 (10 in respect of which the sessions judge has already exercised revisional
power and whether under the circumstances of the present case, it could be considered
to be one under section 482 of the Code? Chapter XXX of the code relating to
reference and revisional powers of the High courts, consists of the Section 395
to 405 Under the codes, the revisional power of the High Court has concurrently
been given by operation of sub-section (1) of section 397 to Sessions judge, to
call for the records of any proceeding and to exercise powers of revision . The
power is given to examine the record of any proceedings before nay inferior
Criminal Court situated within its or his local jurisdiction for the purpose of
satisfying itself or himself 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. Sub-Section (3) thereof provided that
if an application under the said section has been made by any person either to
the high court or to the Sessions judge no further application by the same
Person shall be entertained by the other of them.. This was brought by way of
amendment to section 435 of the predecessor Code i.e., Act V of 1898 .
Section
401 of the code gives to every High Court power of revision Sub-Section (1) of
the said section provides that in the case of any proceeding the record of
which has been called for by itself or which otherwise comes to its knowledges
the High Court may in its discretion, exercise any of the power conferred on a
court of Appeal by Sections 386 389 and 391 and on a court of Sessions by
section 307 Apart form the express power sunder section 397 (1) the High Court
has been invested with Suo motu power under Section 401 to exercise revisional
power. In addition, section 482 saves inherent powers of the High Court
Postulating that "nothing in this code shall be deemed to limit or affect
the inherent powers of the High Court to make such orders as may be necessary
to give effect to any order under this code, or to prevent abuse of the precess
of any court or otherwise to secure the ends of justice" Section 483
enjoins upon every high Court to so exercise its continuous superintendence
over the courts of judicial magistrates subordinate to it as to ensure that
there is an expeditious and proper disposal of cased by such magistrates. It
is, therefore, clear that the power of the High Court of continuous supervisory
jurisdiction is of paramount impotance to examine correctness, legality or
propriety of any finding, sentence or order recorded or passed as also
regularity of the proceedings of all inferior criminal courts.
It is
seen that exercises of the revisional power by the high court under Section 397
read with Section 401 is to call for the records of any inferior Criminal Court
and to examine the correctness, legality or propriety of any finding, sentence
or order recorded or passed, and as to the regularity of any proceedings of
such inferior Court and to pass appropriate orders. The Court of Sessions and
the Magistrates are inferior criminal courts to the High Court and Courts of
judicial Magistrate are inferior criminal courts to the sessions judge. ordinarily,
in the matter of exercise of power of revision by any High Court, Section 397
And section 401 are required to be read together. section 397 gives powers to
the High Court to call for the records as also suo motu power under section 401
to exercise the revisional power on the grounds mentioned therein, i.e. to
examine the Correctness, legality or propriety of any finding sentence or
order, recorded or passed and as to the regularity of any proceedings of such
inferior court, and to dispose of the revision in the manner indicated under
section 401 of the Code. The revisional. power of the high Court merely
conserves the power of the high Court to see that justice is done is accordance
with the recognised rules of criminal jurisprudence and that its subordinates
courts do not exceed the jurisdiction or abuse the power vested in them under
the code or to prevent abuse of the process of the inferior criminal courts or
to prevent miscarriage of justice.
The
object of Section 483 and the purpose behind conferring the revisional power
under section 397 read with section 401 upon the High court is to invest
continuous supervisory jurisdiction so as to prevent miscarriage of justice or
to correct irregularity of the procedure or to met out justice or to correct
irregularity of the procedure or to met out justice. In addition, the inherent
power of the High Court is preserved by Section 462 . The Power of the High
court therefore is very wide, However , High Court must exercise such power
sparingly and cautiously when the sessions judges has simultaneously exercised revisional
power under Section 397 (1) however, when the High Court notices that there has
been failure of justice or misuse of judicial mechanism or procedure, sentence
or order is not correct, it is but the salutary duty of the High Court to
prevent the abuse of the process or miscarriage of justice or tow correct
irregularities/incorrectness committed by inferior criminal court in its
juridical process or illegality of sentence or order.
The
inherent power of the High Court si not one conferred by the code but one which
the high Court already has in it and which is preserved by the Code, the object
of Section 397 (3) is to put a bar on simultaneous revisional applications to the
High Court and the court of Sessions so as to prevent unnecessary delay and
multiplicity of proceeding as seen , under sub-section (3) of section 397 revisional
jurisdiction can be invoked by" any person" but the code has not
defined the word 'person', However, under section 11 of the IPC, 'PERSON'
INCLUDES ANY COMPANY OR ASSOCIATION or body of person whether incorporated or
not.
The
word 'person' would, therefore include not only the natural person but also
juridical person in whatever form designated and whether incorporated or not By
implication the State stands excluded form the purview of the word 'person' for
the purposes of the limiting its right to avail the revisional power of the
High Court under Section 397 (!) of the code for the reason that the Sate,
being the prosecutor of the offender, is enjoined to conduct prosecution on
behalf of the society and to take such remedial steps as it deems proper. The
Object behind criminal law is to maintain law, public order, stability as also
peace and progress in the society, Generally, Private complaint under section
202 of the code are laid in respect of non-cognizance offences or when it is
found that police has failed to perform its duty under Chapter XII of Code or
to report as mistake of fact. In view of the principle laid down in the maxim
Ex debito justitiae i.e. in accordance with the requirements of justice, the
prohibition under section 397 (3) on revisional power given to the High Court
would not apply when the state seek s revision under section 401 . So the state
is not prohibited to avail the revisional power of the high Court under section
397 (1) read with section 401 of the code.
Ordinarily,
when revision has been barred by Section 397(3) of the Code, a person
accused/complainant - cannot be allowed to take recourse to the revision to the
High Court under Section 397 (1) or under inherent power of the High Court
under Section 482 of the Code since it may amount to circumvention of the
provisions of Section 397 (3) or section 397(2) of the Code. It is seen that
the High Court has suo motu power under Section 401 and continuous supervisory
jurisdiction under Section 483 of the Code. So, when the High Court on
examination of the record finds that there is grave miscarriage of justice or
abuse of process of the courts or the required statutory procedure has not been
complied with or there is failure of justice or order passed or sentence
imposed by the Magistrate requires correction, it is but the duty of the High
Court to have it corrected at the inception lest grave miscarriage of justice
would ensue.
It is,
therefore, to meet the ends of justice or to prevent abuse of the process that
the High Court is preserved with inherent power and would be justified, under
such circumstance, to exercise the inherent power and in an appropriate case
even revisional power and in appropriate case even revisional power under
Section 397 (1) read with Section 401 of the Code. As stated earlier, it may be
exercised sparingly so as to avoid needless multiplicity or procedure,
unnecessary delay in trial and protraction of proceedings. The object of
criminal trial is to render public justice, to punish the criminal and to see
that the trial is concluded expeditiously before the memory of the witness
fades out. The recent trend is to delay the trial and threaten the witness or
to win over the witness by promise or inducement. These malpractices need to be
curbed and public justices can be ensured only when expeditious trial is
conducted.
In Madhu
Limaye V/s. The State of Maharashtra [(1977) 4 SCC 551], a three-Judge Bench
was to consider the scope of the power of the High Court under Section 482 and
Section 397 (2) of the Code. This Court held that the bar on the power of
revision was put in order to facilitate expedient disposal of the case but in
Section 482 it is provided that nothing in the Code which would include Section
397 (2) also, shall be deemed to limit or affect the inherent powers of the
High Court. On an harmonious construction of said two provisions in this
behalf, it was held that though the High Court has no power of revision in an
interlocutory order, still the inherent power will come into play when there is
no provision for redressal of the grievance of the aggrieved party. In that
case, when allegation of defamatory statements were published in the newspapers
against the Law Minister, the State Government had decided to prosecute the
appellant for offence under Section 500, IPC. After obtaining the sanction, on
a complaint made by the public prosecutor, cognisance of the commission of the
offence by the appellant was taken to take trial in the Sessions Court.
Thereafter,
the appellant filed an application to dismiss the complaint on the ground that
Court had no jurisdiction to entertain the complaint. The Sessions Judge
rejected all the contentions and framed the charges under Section 406.
The
Order of the Sessions Judge was challenged in revision in the High Court. On a
preliminary objection raised on the maintainability, this Court held that power
of the High Court to entertain the revision was not taken away under Section
397 or inherent power under Section 482 of the Code.
In
V.C. Shukla V/s. State through C.B.I. (1980) 2 SCR 380 at 393], a four-Judge
Bench per majority had held that sub-section (3) of Section 397, however, does
not limit at all the inherent powers of the High Court contained in Section
482. It merely curbs the revisional power given to the High Court or the
Session Court under Section 397 (1) of the Code. In Rajan Kumar Manchanda case (supra),
the case relating to release of a truck from attachment, obviously on filing of
an interlocutory application. It was contended that there was prohibition on
the revision by operation of Section 397 (2) of the Code. In that context it
was held that it was not revisable under section 482 in exercise of inherent
powers by operation of sub-section (3) of Section 397. On the facts in that
case, it was held that by virtue of provisions contained in section 397 (3),
the revision is not maintainable. In Dharam Pal case (supra) which related to
the exercise of power to issue an order of attachment under Section 146 of the
Code, it was held that the inherent power under Section 482 was prohibited. On
the facts in that case it could be said that the learned Judges would be
justified in holding that it was not revisable since it was prohibitory interim
order of attachment covered under Section 397 (2) of the Code but the
observations of the learned Judges that the High Court had no power under
Section 482 of the Code were not correct in view of the ratio of this Court in Madhu
Limaye's case (supra) as upheld in V.C. Shukla's case (supra) and also in view
of our observations stated earlier. The ration in Deepti's case (supra) is also
not apposite to the facts in the present case. To the contrary, in that case an
application for discharge of the accused was filed in the Court of Magistrate
for an offence under Section 498A, IPC. The learned Magistrate and the Sessions
Judge dismissed the petition. In the revision at the instance of the accused,
on a wrong concession made by the counsel appearing for the State that the
record did not contain allegation constituting the offence under Section 498-A,
the High Court without applying its mind had discharged the accused. On appeal,
this Court after going through the record noted that the concession made by the
counsel was wrong. The record did contain the allegations to prove the charge
under Section 498A, IPC. The High Court, since it failed to apply its mind, has
committed an error or law in discharging the accused leading to the miscarriage
of justice. In that context, this Court held that the order of the Sessions
Judge operated as a bar to entertain the application under Section 482 of the
Code. In view of the fact that the order of the High Court had led to the
miscarriage of justice, this Court has set aside the order of the High Court
and confirmed that of the Magistrate.
The
ratio of Simrikhia's case (supra) has no application to the facts in this case.
Therein, on a private complaint filed under Section 452 and 323, IPC the
Judicial Magistrate, First Class had taken cognisance of the offence. He
transferred the case for inquiry under Section 202 of the Code to the Second
Class Magistrate who after examining the witnesses issued process to the
accused. The High Court exercising the power under Section 482 dismissed the
revision. But subsequently on an application filed under Section 482 of the
Code, the High Court corrected it. The question whether the High Court could was
right in reviewing its order. In that factual backdrop, this Court held that
the High Court could not exercise inherent power for the second time. The
ration therein as stated above, has no application to the facts in this case.
In
view of the above discussion, we hold that through the revision before the High
Court under sub-section (1) of Section 397 is prohibited by sub-section (3)
thereof, inherent power of the High Court is still available under Section 482
of the Code and as it is paramount power of continuous superintendence of the
High Court under Section 483, the High is justified in interfering with the
order leading to miscarriage of justice and in setting aside the order of the
courts below. It remitted the case to the Magistrate for decision on merits
after consideration of the evidence. We make it clear that we have not gone
into the merits of the case. Since the High Court has left the matter to be
considered by the Magistrate, it would be in appropriate at this stage to go
into that question. We have only considered the issue of power and jurisdiction
of the High Court in the in the context of the revisional power under Section
397 (1) read with Section 397(3) and the inherent powers. We do not find any
justification warranting interference in the appeal.
The
appeal is accordingly dismissed.
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