Criminal Application (APL) No.287 of 2012

20th February, 2014

Petitioner Counsel: Mr. R.M. BHANGDE
Respondent Counsel: Mr. J.M. GANDHI, Ms. TRUPTI UDESHI

Cases Cited:
Mohit alias Sonu Vs. State of U.P., 2013 ALL MR (Cri) 3288 (S.C.) [Para 4]
Dhariwal Tobacco Products Ltd. Vs. State of Maharashtra, 2009 ALL MR (Cri) 234 (S.C.)=(2009) 2 SCC 370 [Para 4]
Pepsi Foods Ltd. Vs. Special Judicial Magistrate, 1998 ALL MR (Cri) 144 (S.C.)=(1998) 5 SCC 749 [Para 4]

JUDGMENT

JUDGMENT :- Heard.

2. ADMIT. Heard finally by consent of the parties.

3. This is an application under Section 482 of the Code of Criminal Procedure for quashing the criminal complaint pending against the applicant vide Criminal Case No. 3255 of 2011 in the Court of Judicial Magistrate First Class, Court No.7, Nagpur. The applicant is facing trial for the offence punishable under Section 138 of the Negotiable Instruments Act. The prime accused in the said complaint case is AGT Infrastructure Pvt. Ltd. The applicant is one of the Directors of the AGT Infrastructure Pvt Ltd. and she is accused No.3 before the trial Court. It is submitted by the learned counsel for the applicant that there are no averments against the applicant in the whole complaint and therefore, the complaint may be quashed.

4. It was brought to the notice of the learned counsel that the order under challenge could have been challenged before the Sessions Court by way of revision under Section 397 of the Code of Criminal Procedure. The judgment of the Hon'ble Supreme Court in the case of Mohit alias Sonu Vs. State of U.P., reported at 2013 ALL MR (Cri) 3288 (S.C.), particularly paragraph 23 was brought to the notice of the learned counsel. The learned counsel, however, relied upon the judgments of the Hon'ble Supreme Court in the matter of Dhariwal Tobacco Products Ltd. vs. State of Maharashtra, reported at (2009) 2 SCC 370 : [2009 ALL MR (Cri) 234 (S.C.)] and Pepsi Foods Ltd. vs. Special Judicial Magistrate, reported at (1998) 5 SCC 749 : [1998 ALL MR (Cri) 144 (S.C.)]. My attention was invited to paragraph 6 of the judgment in Dhariwal Tobacco, which runs as under :

"6. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P. Kapur v. State of Punjab to Som Mittal v. Govt. of Karnataka has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai vs. Ram Chander Rai) Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397(2) of the Code, the inherent power of the Court has been held to be available."

My attention was also invited to paragraph 10, which runs as under :

"10. We may notice that in G. Sagar Suri v. State of U.P. this Court has held (SCC pp.642-43, paras 7-8)

"7. It was ........... a criminal trial.

8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

This Court therein noticed a large number of decisions to opine that whenever the High Court comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of court and that the ends of justice require that the proceedings should be quashed, it would not hesitate to do so."

5. It is submitted by the learned counsel that in view of the judgments of the Hon'ble Supreme Court in the matter of Dhariwal and Pepsi Foods this Court is not prevented from exercising its powers under Section 482 of the Code of Criminal Procedure when prima-facie there is no case at all against the applicant in the criminal complaint.

6. However, in view of the latest judgment of the Hon'ble Supreme Court where it is clearly stated that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction then there should be bar to invoke inherent jurisdiction of the High Court. Paragrpah 23 can be reproduced as under :

"23. So far as the inherent power of the High Court as contained in Section 482 of the Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged."

Perusal of paragraph 23 of the judgment makes it absolutely clear that when the revisional powers, either of the Sessions Court or of the High Court, are available, it is not permissible to invoke inherent jurisdiction of the High Court. In the present case, since the revisional powers of the Sessions Court are available to the applicant, the applicant cannot be permitted to invoke inherent jurisdiction of this Court. In my considered opinion, the present application under Section 482 of the Code of Criminal Procedure needs to be dismissed and is accordingly dismissed.

Ad-interim orders, if any, stands vacated.

At this stage, the learned counsel Mr. Bhangde for the applicant prays for continuation of the stay as he intends to move the Hon'ble Supreme Court. In my opinion, there is no substance in the prayer, hence, it is rejected.

Application dismissed.