Research › Browse › Judgment

Patna High Court · body

1997 DIGILAW 874 (PAT)

Nar Singh Pandey v. State Of Bihar

1997-12-09

P.K.DEB

body1997
Judgment P.K.Deb, J. 1. In this writ petition, the petitioner prays for issuance of an appropriate writ in the nature of certiorari to quash the order dated, 14.7.1997 (Annexure 3), passed by the 3rd Sessions Judge. Hazaribagh in Criminal Revision No. 41/94. by which the order dated, 26.11.1993, issuing processes under Sections 82 and 83 of the Cr PC by the Executive Magistrate in case No. 796 of 1992 under Section 107/116. Cr PC has been rejected. 2. The brief facts of the case are required to be reiterated for considering the statements made on behalf of the parties in this writ petition. 2-A. The opposite party respondent initiated a proceeding under Section 107, Cr PC, being case no. 796 of 1992. In that case, on being noticed the petitioner alongwith others, as second party members had appeared and contested. On some occasion during the proceedings before the Executive Magistrate the second party members defaulted and then warrant of arrest were issued, but then again petition was filed for recalling of warrant of arrest which was also allowed but then again the second party members remained absent and ultimately the Executive Magistrate proceeded ex parte in absence of the second party members and after considering the cases on record, the learned Executive Magistrate found that it was fit case where the second party members should be bound down to maintain peace. 3. It should be mentioned here that in the order of the original court, it appears that the case of both parties were also considered although ultimately the matter was decided ex parte in absence of the second party members for their default. 4. The original proceeding was initiated on 3.10.1992 and final order was passed on 30.4.1993. Against the final order, the petitioner preferred Cr. Appeal No. 306 of 1993, after a delay of 207 days on the ground that Pairvikar Nand Kishore of the second party members did not take steps and did not inform the other second party members regarding the ex parte order and after coming into knowledge of the final order passed the appeal was preferred. The learned Sessions Judge, Hazaribagh considering the limitation matter and grounds stated found that the same was not satisfactory and hence dismissed the appeal and against that appellate order no revision or petition under Section 482, Cr PC, was ever filed. The learned Sessions Judge, Hazaribagh considering the limitation matter and grounds stated found that the same was not satisfactory and hence dismissed the appeal and against that appellate order no revision or petition under Section 482, Cr PC, was ever filed. Even in the original court, when no bond was executed by the petitioner processes were issued under Section 82/83 of the Cr PC, against that order, criminal revision was preferred before the Sessions Judge, which was heard in Cr. Revision No. 41 of 1994 by the 3rd Additional Sessions Judge, Hazaribagh. The said revision was rejected on the ground that the original order reached its. finality even in the appellate court also long back and when the petitioner had not submitted their bounds then the Executive Magistrate had no other alternative but to issue process under Section 82/83. Cr PC. On rejection of that revision petition, the present writ has been filed. 5. Mr. A. Sahay appearing for and on behalf of the petitioner submitted that the order under Section 107, Cr PC, passed by the original court on 30.4.1993, is a nullity and invalid in the eye of law and no action can be taken on the basis of that order for issuance of processes under Section 82/83. CrPC. His first contention is that the original court committed error of law in proceeding against the second party ex parte when the Exception contained under Section 273 of the Cr PC, did not permit so. His second ground is that the final order passed under Section 107, Cr PC, is against the provisions of Section 119 (2) of the Cr PC. as there was no scope of the Magistrate to ask for binding with retrospective effect, which was done in the present case. 6. Mr. P.K.Prasad appearing on behalf of the respondent no. 2 submitted that there is no scope for entertaining any writ petition in the present circumstances of the case. The petitioner himself is in laches and he cannot take advantage of his laches now at a belated stage finding some fault or legal lacuna in the original order passed under Section 107, Cr PC. 2 submitted that there is no scope for entertaining any writ petition in the present circumstances of the case. The petitioner himself is in laches and he cannot take advantage of his laches now at a belated stage finding some fault or legal lacuna in the original order passed under Section 107, Cr PC. In support of his contention, he referred to a Supreme Court judgment as reported in 1961 SC 1506 (A.V. Venkates-waran v. R.S. Wadhwani), wherein it was held that when there was alternative remedy and the petitioner had failed to exercise avail of that alternative remedy within the prescribed period due to his own fault, he cannot come for exercise of discretionary power of the High Court under Article 226 of the Constitution of India. Another judgment of the Supreme Court as reported in 1996 SC 1209 (Swetamber Sthanakwasi Jain Samitee and another v. The Alleged Committee of Management, Shri R.J.I. College, Agra and others), has been referred to. The same principal has again been reiterated by the Apex Court as above mentioned in this judgment. 7. This petitioner had contested the proceedings under Section 107, Cr PC, and during the course of the proceeding the second parly members absented then the Executive Magistrate passed the orders for issuance of warrant of arrest against them for disposal of the matter in their presence but then again they appeared and filed petition for recalling of the order of warrant of arrest which was accordingly recalled on the undertaking that the second party members would appear, but then they again defaulted and hence the Executive Magistrate proceeded ex parte. The laches are there on the part of the petitioner himself Section 273 of the Cr PC, mainly deals with the criminal proceedings in relation to the penal provisions of the Indian Penal Code, but in the explanation itself it is stated that such provision shall apply in respect of the proceedings under Chapter X of the Cr PC, also. Even, if it is taken to be a lacuna on the part of the Executive Magistrate in passing the order in absence of the second party members then also there was scope for the second party members to agitate their grievances in appeal and also in the higher courts. Even, if it is taken to be a lacuna on the part of the Executive Magistrate in passing the order in absence of the second party members then also there was scope for the second party members to agitate their grievances in appeal and also in the higher courts. They have availed the opportunity but that too at a very belated date in filing appeal and appeal was dismissed on condonation ground alone as it could be found that laches on the part of the second party members could not be explained in the condonation petition itself. 8. It appears that the petitioner who was also one of the second party members was not at all vigilant and whenever he rises from his great slumber, he comes up with petitions before the Courts. Such negligent person cannot be given any long hand or sympathetic consideration. Against the order passed in the criminal appeal, no revision nor any petition under Section 482, Cr PC was made before the High Court, which shows that the petitioner had been satisfied with the orders passed and then it remained his bounded duty to comply the courts order. Now. he cannot come up with the question that whole order was a nullity. It is true that there might be some impropriety/illegality in the final order passed under Section 107, Cr PC, in absence of the second party members and in violation of Section 273 of the Cr PC. But, I have already mentioned that while passing the final order the Executive Magistrate had also considered the case of the second party members so prejudice was not there of the second party members including the petitioner and such prejudice even if it is there they had got the scope of alternative remedy under the Code of Criminal Procedure itself but the same has not been invoked and now they are submitting to the extraordinary discretionary jurisdiction of the Court under Article 226 of the Constitution of India. 9. A negligent person cannot be shown any discretionary under the said articles of the Constitution of India. Mr. Sahays submission that the whole order passed under Section 107, Cr PC. in violation of Section 273. Cr PC. 9. A negligent person cannot be shown any discretionary under the said articles of the Constitution of India. Mr. Sahays submission that the whole order passed under Section 107, Cr PC. in violation of Section 273. Cr PC. and Section 119 (2), Cr PC referred the order as invalid in the eye of law and as such being a nullity the same cannot be implemented by way of processes under Section 82/83. Cr PC. I do not find that the order passed is nullity on the face of it. There might be irregularity or some legal lacuna in the orders but on the factual aspect the learned court below found that the second party members were to be bound down to maintain peace, hence it was ordered so. When the petitioner himself is in laches, he is not entitled to invoke the discretionary jurisdiction under Article 226 of the Constitution of India. Hence, the petition is dismissed, having no force.