Rajendra
Kumar Sitaram Pande & Ors Vs. Uttam & ANR[1999] INSC 27 (11 February 1999)
G.B.Pattanaik,
S.Rajendra Babu PATTANAIK,J.
The
accused persons in a complaint case are the appellants and in this appeal, the
Judgment of the Nagpur Bench of Bombay High Court in Criminal Application
No.376 of 1994 is under challenge. By the impugned Judgment, the High Court
came to the conclusion that the order of the Judicial Magistrate, First Class, Amravati
dated 16.8.91, issuing process was only an interlocutory order and was not
amenable to the jurisdiction of the Sessions Judge under Section 397 of the Cr.P.C.
and therefore, the Sessions Judge committed error in interfering with the said
order of the Magistrate, directing issuance of process. The High Court however also
observed that it would be open for the Judicial Magistrate to recall the order
of issuing process, if satisfied, in accordance with the Judgment of this Court
in K.M.Mathew vs. State of Kerala (AIR
1992 SC 2206).
On the
basis of a complaint, filed by the Respondent No. 1 alleging inter alia that
the accused persons made a false complaint to the Treasury Officer, Amravati,
containing false imputations to the effect that the complainant had come to
office in a drunken state and abused the Treasury Officer and thereby have
committed criminal offence punishable under Section 500 read with Section 34
IPC, the Magistrate postponed the issue of process against the accused and
directed the Treasury Officer to submit a report under sub- section (1) of
Section 202 of the Code of Criminal Procedure. After receipt of the said report
from the Treasury Officer, the Magistrate was of the opinion that sufficient material
exist for issuance of process and accordingly issued summons against the
accused persons under Section 500 read with Section 34 IPC. This order of the
Magistrate dated 16.8.91 was challenged by the accused persons in a revision
before the learned Sessions Judge.
Learned
Sessions Judge came to the conclusion that the Magistrate having himself
directed for an inquiry under Section 202, on receipt of the inquiry report
from the Treasury Officer, was not justified in discarding the same.
On the
basis of the aforesaid inquiry report and the allegations in the complaint, the
Sessions Judge came to the conclusion that the case is one covered by exception
8 to Section 400 IPC and, therefore, issuance of process itself is an abuse of
process. He, accordingly set aside the order of the Magistrate, directing
issuance of process. Against the aforesaid revisional order of the learned
Sessions Judge, the complainant moved the High Court, invoking its jurisdiction
under Section 482 of the Code of Criminal Procedure. The High Court came to the
conclusion that the order directing issuance of process being an interlocutory
order, the Sessions Judge has no jurisdiction under Section 397 to interfere
with the same and accordingly set aside the order of the learned Sessions
Judge.
Mr. Lalit,
learned counsel, appearing for the appellants submitted that the order of the
Magistrate, directing issuance of process cannot be held to be an interlocutory
order not amenable to the revisional jurisdiction under Section 397 of the Code
of Criminal Procedure. He further contended that when the allegations in the
complaint read with the report of the Treasury Officer obtained from him
pursuant to an inquiry made under sub-section (1) of Section 202, clearly bring
out the case under exception 8 to Section 400, the High Court in exercise of
its inherent jurisdiction under Section 482 ought not have interfered with the
order of the Sessions Judge, passed in revisional jurisdiction. The learned
counsel also submitted that even if the remedy of approaching the Magistrate by
the accused under Section 205 for recalling the process already issued is available
in terms of the judgment of this Court in Mathew's case, but the matter being
present in this court itself, this Court may consider the averments made in the
complaint petition to find out whether any offence is made out and then would
pass appropriate order. Mr. Deshpande, the learned counsel, appearing for the
respondent, on the other hand contended that the direction given by the High
Court is fully justified in the facts and circumstances of the case and no
interference at all is called for under Article 136 of the Constitution of
India.
In
view of the rival submissions at the bar, the first question that arises for
consideration is whether the order of the Magistrate, directing issuance of
process can be said to be such an interlocutory order, which is not amenable to
the revisional jurisdiction under Section 397, in view of the bar in
sub-section (2) thereof. Sub-section (2) of Section 397 reads thus:
397(2)
: The powers of revision conferred by sub- section (1) shall not be exercised
in relation to any interlocutory order passed in any appeal, inquiry, trial or
other proceeding.
The
very object of conferring revisional jurisdiction upon the superior criminal
courts is to correct miscarriage of justice arising from misconception of law
or irregularity of procedure.
Discretion
in the exercise of revisional jurisdiction should, therefore, be exercised
within the four corners of Section 397, whenever there has been miscarriage of
justice in whatever manner. Under sub-section (2) of Section 397, there is a
prohibition to exercise revisional jurisdiction against any interlocutory order
so that inquiry or trial may proceed without any delay. But the expression
"interlocutory order" has not been defined in the Code. In Amar Nath
& Ors. vs. State of Haryana 1978(1) SCR 222, this Court has held that the
expression "interlocutory order" in Section 397(2) has been used in a
restricted sense and not in a broad or artistic sense and merely denotes orders
of purely interim or temporary nature which do not decide or touch the
important rights or liabilities of the parties and any order which
substantially affects the right of the parties cannot be said to be an
"interlocutory order". In Madhu Limaye vs. State of Maharashtra
1978(1) SCR 749, a three Judge Bench of this Court has held an order rejecting
the plea of the accused on a point which when accepted will conclude the
particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla
vs. State 1980(2) SCR 380, this Court has held that the term "nterlocutory
order"used in the Code of Criminal Procedure has to be given a very
liberal construction in favour of the accused in order to ensure complete
fairness of the trial and the revisional power of the High Court or the
Sessions Judge could be attracted if the order was not purely interlocutory but
intermediate or quasi final. This being the position of law, it would not be
appropriate to hold that an order directing issuance of process is purely
interlocutory and, therefore, the bar under sub- section (2) of Section 397
would apply. On the other hand, it must be held to be intermediate or quasi
final and, therefore, the revisional jurisdiction under Section 397 could be
exercised against the same. The High Court, therefore, was not justified in
coming to the conclusion that the Sessions Judge had no jurisdiction to
interfere with the order in view of the bar under sub-section (2) of Section
397 of the Code.
The
next question that arises for consideration is whether reading the complaint
and the report of the Treasury Officer which was obtained pursuant to the Order
of the Magistrate under sub-section (1) of Section 201 can it be said that a
prima facie case exist for trial or exception 8 to Section 400 clearly applies
and consequently in such a case, calling upon the accused to face trial would
be a travesty of justice. The gravamen of the allegations in the complaint
petition is that the accused persons made a complaint to the Treasury Officer, Amravati,
containing false imputations to the effect that the complainant had come to the
office in a drunken state and abused the Treasury Officer, Additional Treasury
Officer and the Collector and circulated in the office in the filthy language
and such imputations had been made with the intention to cause damage to the
reputation and services of the complainant. In order to decide the correctness
of this averment, the Magistrate instead of issuing process had called upon the
Treasury Officer to hold inquiry and submit a report and the said Treasury
Officer did submit a report to the Magistrate. The question for consideration
is whether the allegations in the complaint read with the report of the
Magistrate make out the offence under Section 500 or not. Section 499 of the
Indian Penal Code defines the offence of defamation and Section 500 provides
the punishment for such offence. Exception 8 to Section 499 clearly indicates
that it is not a defamation to prefer in good faith an accusation against any
person to any of those who have lawful authority over that person with regard
to the subject matter of accusation. The report of the Treasury Officer clearly
indicates that pursuant to the report made by the accused persons against the
complainant, a departmental inquiry had been initiated and the complainant was
found to be guilty. Under such circumstances the fact that the accused persons
had made a report to the superior officer of the complainant alleging that he
had abused to the Treasury Officer in a drunken state which is the gravamen of
the present complaint and nothing more, would be covered by exception 8 to
Section 499 of the Indian Penal Code. By perusing the allegations made in the
complaint petition, we are also satisfied that no case of defamation has been
made out. In this view of the matter, requiring the accused persons to face
trial or even to approach the Magistrate afresh for reconsideration of the
question of issuance of process would not be in the interest of justice. On the
other hand in our considered opinion this is a fit case for quashing the order
of issuance of process and the proceedings itself. We, therefore, set aside the
impugned order of the High Court and confirm the order of the learned Sessions
Judge and quash the criminal proceeding itself. This appeal is allowed.
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