Criminal Writ Petition No.422 of 2004

14th June, 2006

Petitioner Counsel: Mr. A. M. GHOLAP
Respondent Counsel: Mr. M. M. JOSHI,Mrs. RANJANA D. REDDY

Cases Cited:
V. K. Jain Vs. Pratap V. Padode, 2005(3) Mh.L.J. 778 [Para 3,11]
Saket Gore Vs. Aba Dhavalu Bagul, 2005 ALL MR (Cri) 2514 [Para 3,11]
Adalat Prasad Vs. Rooplal Jindal, 2004 ALL MR (Cri) 3131 (S.C.)=2004(4) Mh.L.J. 274 [Para 3,3,A,4,6,7]
Subramanium Sethuraman Vs. State of Maharashtra, 2004 ALL MR (Cri) 3469 (S.C.)=2005(1) Mh.L.J. 626 [Para 3,3,A,4]
M/s. Zandu Pharmacuticals Works Ltd. Vs. Md. Sharaful Haque, 2004 ALL MR (Cri) 3462 (S.C.)=AIR 2005 SC 9 [Para 4,5]
N. K. Sharma Vs. Abhimanyu, (2005)13 SCC 213 [Para 6]
Poonam Chand Jain Vs. Fazru, 2004 ALL MR (Cri) 3455 (S.C.)=2004(13) SCC 269 [Para 6]
S. Sampath Kumar Vs. State of Maharashtra, 2005 ALL MR (Cri) 566 [Para 7]
Shyamrani w/o Wasudeo Prasad Gaur Vs. State of Maharashtra, 1991(1) Mh.L.R. 508 [Para 8]
Shail (Smt) Vs. Manoj Kumar, 2004 ALL MR (Cri) 2220 (S.C.)=2004(3) Mh.L.J.503 [Para 10]

JUDGMENT

JUDGMENT :- Heard the learned advocate for the petitioners, the learned advocate for respondent No.1 and the learned A.P.P. for the respondent No.2-State, at great length.

2. The present writ petition under Article 227 of the Constitution of India and under Section 482 of Cr.P.C. against the order of issuance of process, is maintainable. However, in the facts and circumstances of the case, the High Court may refuse to entertain the writ petition or petition under Section 482 of Cr.P.C. by observing that the appropriate remedy is to file revision in such case before the Sessions Court.

3. The preliminary objection to the maintainability of this writ petition under Article 227 of the Constitution of India r.w. Section 482 of Criminal Procedure Code (Cr.P.C.), has been raised in view of the decision of this Court in V. K. Jain & Ors. Vs. Pratap V. Padode & Anr. (2005(3) Mh.L.J. 778) and Saket Gore and Ors. Vs. Aba Dhavalu Bagul & Anr. (2005 ALL MR (Cri) 2514 wherein this Court (Single Judge) after considering the various judgments of the Apex Court and the High Courts and specially Adalat Prasad Vs. Rooplal Jindal (2004(4) Mh.L.J. 274 : 2004 ALL MR (Cri) 3131 (S.C.)); Subramanium Sethuraman Vs. State of Maharashtra (2005(1) Mh.L.J. 626 : [2004 ALL MR (Cri) 3469 (S.C.)]) has concluded.

"Thus as in my opinion, when, the applicants have an efficacious remedy of preferring revision before the Sessions Court against the order issuing process they should not be deprived of the same. Hence, in view of the discussion in the foregoing paras, in my opinion, it would be appropriate that the applicants prefer a revision before the concerned Sessions Court against the order issuing process against them."

3-A. Respondent No.1, in answer to the above main submission as raised by the petitioner, by distinguishing the facts and circumstances of the above case and further submitted that the Apex Court's decision in Adalat Prasad [2004 ALL MR (Cri) 3131 (S.C.)] and Subramanium Sethuraman, [2004 ALL MR (Cri) 3469 (S.C.)] (supra) nowhere expressed that the petition under Article 227 of the Constitution of India and/or under Section 482 of Criminal Procedure Code against the order of issuance of process, is barred or not maintainable. On the contrary in both these cases also, the Apex Court has entertained the petitions under Section 482 of Cr.P.C. and quashed the order of issuance of process.

4. In M/s. Zandu Pharmacuticals Works Ltd. & Ors. Vs. Md. Sharaful Haque and others (AIR 2005 SC 9 : 2004 ALL MR (Cri) 3462 (S.C.)), the Apex Court again without referring to Adalat Prasad and Subramanium Sethuraman, [2004 ALL MR (Cri) 3469 (S.C.)] (supra) has entertained the petition under Section 482 of Cr.P.C. and quashed the complaint of offence of cheating under Section 406, 409 and 418 of Indian Penal Code (I.P.C.). The Apex Court in M/s. Zandu Pharmaceuticals (supra) in para 8 reiterated the purpose and object of availing Section 482, Cr.P.C. which is reproduced as under :-

"Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex a liquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought tobe quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

5. The Apex Court under Section 482 in M/s. Zandu Pharmaceuticals [2004 ALL MR (Cri) 3462 (S.C.)] (supra) after considering the merit of the matter quashed and set aside the order of issuance of process passed by the learned Magistrate.

6. The Apex Court in N. K. Sharma Vs. Abhimanyu, (2005)13 SCC 213 after considering Adalat Prasad, (supra) & Poonam Chand Jain Vs. Fazru, 2004(13) SCC 269 : [2004 ALL MR (Cri) 3455 (S.C.)], again reiterated as under :-

"15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code."

7. In S. Sampath Kumar Vs. State of Maharashtra, 2005 ALL MR (Cri) 566, after considering Adalat Prasad [2004 ALL MR (Cri) 3131 (S.C.)] (supra) this Court (Anoop V. Mohta, J.) has quashed and set aside the order of issuance of process in petition under Section 482 of Cr.P.C.

8. The Division Bench of this Court in Shyamrani w/o. Wasudeo Prasad Gaur Vs. State of Maharashtra & Ors. (1991(1) Mh.L.R. 508) while considering the provisions of Section 397(3) and Section 482 of Cr.P.C. and Article 227 of the Constitution of India observed thus :-

"Is petition under Article 227 of the Constitution legally maintainable in such matters. In our view, there is only one answer to the question and it is "yes". No statute can bar that constitutional remedy. No doubt, its exercise has certain limitations, but that is an altogether different subject."

"Conclusion is, therefore, inevitable that an application or petition under Section 482 simpliciter or Section 482 read with Article 227 or Article 227 simpliciter does lie but its exercise is restricted to rare and exceptional cases. In exercise of those powers care ought tobe taken to see that bar of Section 397(3) is not circumvented by shift and contrivance and therefore not the form but the substance by the deciding factor."

9. Therefore, the party who can avail remedy of revision under Section 397 of Cr.P.C. can also definitely invoke the inherent power of the High Court under Section 482 of Cr.P.C.

The petition under Article 227 of the Constitution of India is maintainable even otherwise at the instance of the aggrieved party against the orders passed by the courts below.

10. The Apex Court in Shail (Smt) Vs. Manoj Kumar and others, (2004)4 SCC 785 : 2004(3) Mh.L.J. 503 : [2004 ALL MR (Cri) 2220 (S.C.)] has expressed in reference to the power under Article 227 of the Constitution of India as under :-

"3. In Surya Dev Rai Vs. Ram Chander Rai, 2004(1) Mh.L.J. (SC) 633 = (2003)6 SCC 675 this Court has held that in exercise of power of superintendence conferred under Article 277 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior Court or tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior Court or tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases."

It is difficult to curtail this remedy merely because there is a revisional remedy available. The alternate remedy is no bar to invoke power under Article 227. What is required is to see the facts and circumstances of the case while entertaining such petition under Article 227 of the Constitution and/or under Section 482 of Cr.P.C. The view therefore, as taken in both the cases V. K. Jain and Saket Gore, no way expressed total bar. If no case is made out by the petitioner or the party to invoke the inherent power as contemplated under Section 482 of Cr.P.C. and/or the discretionary or the supervisory power under Article 227 of the Constitution of India they may approach to the revisional Court, against the order of issuance of process.

11. Taking into consideration the facts and circumstances of those cases, the learned Judge has observed in V. K. Jain and Saket Gore (supra) that it would be appropriate for the parties to file revision application against the order of issuance of process. There is nothing mentioned and/or even observed that there is total bar to file petition under Section 482 of Cr.P.C. and/or petition under Article 227 of the Constitution of India.

12. The Apex Court's decision already referred above, nowhere prohibited or expressly barred to invoke Section 482 of Cr.P.C. or Article 227 of the Constitution of India against the order of issuance of process.

13. After hearing both the parties in the present facts and circumstances, in my opinion, the case has been made out to entertain the present petition under Section 482 of Cr.P.C. r.w. Article 227 of the Constitution of India. However, as observed at the stage of final hearing, the Court may pass an appropriate order even in such petition.

14. Rule. Rule returnable within four weeks.

15. Interim relief in terms of prayer clause (c) granted by order dated 17-1-2006, to continue till then.

Petition admitted.