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1980 DIGILAW 214 (MAD)

G. Chellappan Pillai v. Chandulal Virpal Nagda

1980-04-25

G.BALAGANGADHARAN NAIR

body1980
Order The common respondent in these petitions filed a complaint, C.C. 65/S/1978 in the Metropolitan Magistrate's 17th Court at Mazgaon, Bombay against five accused for the offence under section 420 read with section 114, Indian Penal Code. Accused 5 is the Petitioner in Crl.M.P. No. 1095, accused 2 and 3, are the petitioners in Crl.M.P. No. 1105 and accused 4 is the petitioner in Crl. M.P. No. 547. These accused are residents of this State and had been summoned to appear in the Metropolitan Magistrate's Court in Bombay on 10th October, 1978. Crl.M.P. Nos. 1095 and 1105 were thereupon filed in this Court under section 482 of the Code of Criminal Procedure (“Code”) and orders obtained on the accompanying petitions staying the case in the Metropolitan Magistrate's Court in Bombay. Accused 4 actually appeared in the Bombay Court and sought exemption from personal appearance. It is stated that a non-bailable warrant against him was issued by the Court (obviously owing to his non-appearance). Following the other three accused he then filed Crl. M.P.No. 547. The prayer in all the three petitions is to quash the complaint on the ground that it discloses no offence and that its continuance is an abuse of the process of the Court which should be stopped in the interests of justice. 2. The respondent was ex parte. As I felt Strong doubts on the power of this Court to quash a complaint pending in a Bombay Court, I heard Counsel for the petitioners on that question as a preliminary point. Section 482 of the Code on whose terms the arguments turned reads: “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 process of any Court or otherwise to secure the ends of justice.” 3. Counsel emphasised the words “any Court” and the absence of qualification as a Court “inferior” or “subordiate” to the concerned High Court and contended that the power of the High Court can therefore reach every Court in India to which the Code extends, wherever situate. In aid of this contention he quoted by way of contrast certain sections of the Code where the expression inferior Court or subordinate Court is used. In aid of this contention he quoted by way of contrast certain sections of the Code where the expression inferior Court or subordinate Court is used. Illustratively I might note the following Sections: Section 395 (‘ subordinate’), Section 397 (‘inferior’) , Section 407(1) (a) (ii) (‘subordinate’) and Section 483 (‘subordinate’). On these premises Counsel built up an argument that this Court is competent to act, even though the Bombay Court is not subordinate to this Court and is outside the territorial jurisdiction of this Court. 4. The argument, if accepted is fraught with grave and inconvenient consequences, although if it is the effect of a true and correct interpretation of the section it must be upheld, whatever the inconvenience. But in my opinion, this is not its effect. The jurisdiction of this Court is confined to the territory of Kerala and its powers of control, judicial and administrative are limited to Courts, subordiante to it, in Kerala. The existence and extent of this power and its limitation flow from Articles 227 and 235 of the Constitution as well. This limitation is inherent in the very constitution of the State judiciary in a federal polity like India. The contention of counsel would subject every Court in every State to the power and control of every High Courts in India; indeed if we read no qualification into the expression “any Court” it can conceivably be urged that the High Court's power would extend even to Courts of co-ordinate or superior jurisdiction. That could not have; been intended, nor is it the effect of the section. Under section 2(e)(i) of the Code and expression “High Court” means in relation to any State, the High Court of that State. If this expression is read into section 482, as we must, there being nothing contrary in the context, it would follow that the words ‘any Court’ in a State mean a Court in relation to the High Court of that State and not of any any other State. That position is inherent in the constitution of the hierarchy of Courts with the High Court at the apex in a State; also a High Court would possess power which is not limited by the territory for which it has been established and can function over institutions unconnected with it or entertain causes with which it was no nexus. That position is inherent in the constitution of the hierarchy of Courts with the High Court at the apex in a State; also a High Court would possess power which is not limited by the territory for which it has been established and can function over institutions unconnected with it or entertain causes with which it was no nexus. The power saved by section 482 is judicial and administrative and on the petitioners’ contention a Court in one State is accountable at once to as many High Courts as there are in India, a consequence that is difficult to countenance. 5. Counsel conceded that there is no case which he could find in which his proposition has been laid down. He however brought to my notice Sreehara Kamath v. Jawala Prasad Gupta1 a decision of a learned Judge of this Court (Krishna Iyer, J.) The petitioner was an accused in a case at Aligarh, Uttar Pradesh and he made a petition in this Court, under section 561-A , Criminal Procedure Code, 1898, which corresponds to section 482 of the present Code, for quashing the prosecution. The petition was dismissed and in the course of the discussion the learned Judge made observations on the ambit of section 561-A which to the extent they go deny extra territoriality to the section: “……it is doubtful if the Kerala High Court has power to set aside an order or quash a proceeding of a Court outside its jurisdiction or area of superintendence.” (paragraph 4) and “The High Court's existing inherent powers which are preserved by section 561-A of the Criminal Procedure Code, cannot, it seems to me, extend to proceedings of Courts outside its supervisory jurisdiction.” (paragraph 8) 6. Thangal Kunju Musaliar's Case2 cited by Counsel for the petitioners was concerned with the power of the High Court of Travancore-Cochin to issue under Article 226 of the Constitution, a writ of prohibition against the Income-tax Investigation Commission (respondent 2) which had its office in New Delhi and against its authorised official (respondent 1) functioning in Trivandrum. Thangal Kunju Musaliar's Case2 cited by Counsel for the petitioners was concerned with the power of the High Court of Travancore-Cochin to issue under Article 226 of the Constitution, a writ of prohibition against the Income-tax Investigation Commission (respondent 2) which had its office in New Delhi and against its authorised official (respondent 1) functioning in Trivandrum. While laying down that writs cannot run beyond the territories subject to the High Court's jurisdiction and that the person or authority to whom the High Court is empowered to issue such writs must be “within territories” either by residence or location the Supreme Court held that the location of the authorised officer in Trivandrum gave jurisdiction to the High Court. The decision was on an entirely different provision of law but even so the underlying principle only shows that this Court's jurisdiction is limited by the b orders of this State. It hardly supports the petitioners. 7. I might note another decision, Dr. Raghubir Saran v. State of Bihar3 where the Supreme Court considered the scope of the High Court's power under section 561-A to expunge remarks in the order of a subordinate Court against a person who is neither a party nor witness to the proceeding. On the nature of the inherent power their Lordships observed: “When we speak of the inherent powers of the High Court of a State we mean the powers which must,by reason of its being the highest Court in the State having general jurisdiction over civil and criminal Courts in the State, inhere in that Court. The powers in a sense are an inalienable attribute of the position it holds with respect to the Courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice.” And “Again, this power is not exercisable every time the High Court finds that there has been a miscarriage of justice. For the procedural laws of the State provide for correction of most of the errors of subordinate Courts which may have resulted in miscarriage of justice. For the procedural laws of the State provide for correction of most of the errors of subordinate Courts which may have resulted in miscarriage of justice. These errors can be corrected only by resorting to the procedure prescribed by law and not otherwise.” Again “The further condition for its exercise in so far as cases arising out of the exercise by the subordinate Courts of their criminal jurisdiction are concerned is that it must be necessary to resort to it for giving effect to an order under the Code of Criminal Procedure or for preventing an abuse of the process of the Court or for otherwise securing the ends of justice.” In a later passage the nature of the High Court's power was thus re-stated: “To sum up, every High Court as the highest Court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice. This power extends to expunction or ordering expunction of irrelevant passages from a judgment or order of a subordinate Court and would be exercised by it in appropriate cases for securing the ends of justice. Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court of its powers such as by passing comment upon a matter not relevant to the controversy before it and which is unwarranted or is likely to harm or prejudice another.” This decision, no doubt, was not concerned with the precised question involved in these cases, but the exposition given by the Supreme Court on the nature, scope and object of the inherent power of the High Court, the rationale underlying the retention of inherent power in the High Court and the repeated emphasis placed by the Supreme Court on the subordination of Courts vis-a-vis the High Court and its inherent power leave no room for doubt that the Supreme Court recognised the inherent power only in relation to the Courts subordinate to the High Court, in other words Courts within the territorial jurisdiction of the High Court. The contrary view for which the petitioners contend would not only convert every High Court into Court of unlimited territorial jurisdiction but even subject every High Court to the inherent power of every other High Court. The contrary view for which the petitioners contend would not only convert every High Court into Court of unlimited territorial jurisdiction but even subject every High Court to the inherent power of every other High Court. May be the Supreme Court itself would not be beyond the reach of the High Court's inherent power if the words ‘any Court’ are given a wide and loose sense. Apart from the confusion and anomaly which it would broad, the petitioners’ contention is not warranted by the Scheme of the Code or the principle and object of retaining inherent power in the High Court. The contention is without force and has to be rejected. 8. In this view the merits of the petitioners’ prayer for quashing the prosecution do not require to be considered. I dismiss the petitions. M.C.M. ----- Petition dismissed.