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1992 DIGILAW 158 (GUJ)

GOVINDBHAI CHHAGANBHAI v. STATE

1992-05-01

K.J.VAIDYA

body1992
VAIDYA, J. ( 1 ) THE petitioner-Govindbhai Chhaganbhai, by this Misc. Criminal application under Sec. 482 of the Code of Criminal Procedure, 1973 (for short the "code"), has moved this Court for getting quashed and setting aside the impugned order issuing process against him by the learned J. M. F. C. , Kodinar in a Criminal Case No. 894 of 1989 on the basis of the complaint filed by one Rajendrabhai Gajendrabhai Mehta against him for the alleged offences punishable under Secs. 403, 406, 407 and 420 of the Indian Penal Code. ( 2 ) FEW relevant facts :- According to the complainant-Rajendrabhai gajendrabhai Mehta, Manager, Auto Hirers (Trucking Division), Kodinar the incident in question took place on 22-1-1988 when the petitioner who at the relevant time was a driver of one Truck bearing No. GTH 7407, was entrusted with 240 bags of Cement valued at Rs. 14,400. 00 at "gujarat Ambuja factory" to be delivered at Navsari to "gujarat Agricultural University", did not deliver the same at the said destination. This fact came to the knowledge of the complainant on 24-2-1988 and accordingly, he filed a complaint against the petitioner before the learned J. M. F. C,, Kodinar for the alleged offences punishable under Secs. 403, 406, 407 and 420 of the Indian Penal Code wherein the learned Magistrate in turn sent it to the Police for investigation under Sec. 156 (3) of the Code. After the investigation was over, the Police submitted a report on the basis of (Only a part of the Judgment approved for reporting is published.) which, the learned Magistrate issued process against the petitioner which is sought to be challenged by the present petition. ( 3 ) MR. B. K. Parikh, the learned Advocate for the petitioner submitted that the statements of the witnesses recorded by the Police during the course of investigation submitted alongwith the charge-sheet, do not substantiate the allegations made against the petitioner in the complaint making out any prima facie case against him. According to Mr. Parikh, the investigation material on the record clearly show that the case was of the civil nature only and that the learned Magistrate has committed an obvious error in mechanically issuing the process against the petitioner which deserves to be at once quashed and set aside. According to Mr. Parikh, the investigation material on the record clearly show that the case was of the civil nature only and that the learned Magistrate has committed an obvious error in mechanically issuing the process against the petitioner which deserves to be at once quashed and set aside. ( 4 ) NOW the facts remain that turning to the allegations made in the complaint, it is clear that the offences under Sees. 407 and 420 are warrant triable cases for which the procedure is prescribed in Chapter XIX of the Code under the heading "trial of Warrant cases by a Magistrate". Accordingly, this being a case instituted on a Police report, the same is governed by the procedure laid down under Sees. 238 to 243 of the Code. Section 239 of the Code pertains to the circumstances when accused shall be discharged. The said section reads as under :"sec. 239. If, upon considerating the Police report and the documents sent with it under Sec. 173 and making such examination, if any, of the accused as the magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. " ( 5 ) NOW, taking into consideration the facts and circumstances of the case as narrated above and the relevant provisions as contained in Sec. 239 of the code, there is no scope whatsoever for this Court to invoke its extra-ordinary power of inherent jurisdiction under Sec. 482 of the Code to quash the proceedings and process issued against the petitioner by the learned Magistrate. This is not a case where it can be contended by the petitioner that the facts alleged in the complaint do not prima facie constitute the offences alleged against him, and therefore, on that count, the process deserves to be quashed. What is merely contended before me is the fact that the statement of the witnesses recorded by police during the course of investigation do not prima facie substantiate the allegations made against him in the complaint. Now when that is the only submission of the learned Advocate for the petitioner, nobody prevents him from raising the said contention before the learned Magistrate by making appropriate application under Sec. 239 of the Code praying for the discharge. Now when that is the only submission of the learned Advocate for the petitioner, nobody prevents him from raising the said contention before the learned Magistrate by making appropriate application under Sec. 239 of the Code praying for the discharge. It is indeed difficult to understand as to how despite the specific alternative remedy for discharge made available under Sec. 239 of the Code, circumventing the same, the petitioner has chosen to rush to this Court under Sec. 482 of the Code. . In fact, the petitioner needed to be properly adviced the correct remedy under the Code. In the opinion of this Court, the petitioner has obviously knocked at the wrong door for getting his grievances redressed. In fact, the remedy of discharge sought for by the petitioner when it is available under Sec. 239 of the code, it is rot open to the petitioner to conveniently switch on the extra-ordinary remedy under Sec. 482 of the Code. The extra-ordinary inherent powers vested in the High Court by Sec. 482 of the Code are to be exercised sparingly with circumspection and in rare case and certainly not in the cases wherein alternative remedy by way of application under Sec. 239 of the Code is available. It cannot be said that this is a case wherein if this Court refuses to entertain this application of the petitioner, the grievance made by him cannot be redressed resulting either in the abuse of law or into the miscarriage of justice. In fact, such applications unnecessarily, over burdens the High Court and wastes its precious public time which otherwise could be given and better utilized for other important deserving old matters gathering dust. Under the circumstances, the party deserves to be properly advised not to add to unnecessary burden of the High Court by filing such applications when the alternative effective remedy is available under the Code. It was then contended by Mr. Parikh that alternative remedy provided under Sec. 239 of the Code consumes considerable time before the learned Magistrates and it is because of this only that the parties are tempted to approach the High Court under sec. 482 of the Code. This is no argument at all because as stated above when the alternative specific remedy under Sec. 239 of the Code itself is available before the lower Court, the High Court cannot be approached under sec. 482 of the Code. This is no argument at all because as stated above when the alternative specific remedy under Sec. 239 of the Code itself is available before the lower Court, the High Court cannot be approached under sec. 482 of the Code. In view of the aforesaid discussion, since this application has no merits, the same deserves to be rejected summarily. ( 6 ) IN the result, this application is summarily rejected. It would be open to the petitioner to make an appropriate application to the learned Magistrate for discharge. If such an application is made, the learned Magistrate is directed to dispose of the same preferably on or before 31-8-1992. At this stage, Mr. Parikh requested that at least by the time the application for discharge is filed and the same is decided, the petitioner be exempted from appearing before the trial Court. The request being quite reasonable, the same is granted. Direct service permitted. .