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2000 DIGILAW 280 (JK)

Mohd. Amin v. State

2000-11-29

O.P.SHARMA

body2000
1. The petitioner seeks quashing of the order dated 15.05.1997 passed by a learned Sinle Bench of this court dismissing the Cr. Rev. Petition No.6/89 in the absence of the respondent-petitioner herein. 2. The contention of Mr.Qayoom is that the order impugned has been passed ignoring the mandate of proviso to Section 436 of Cr.P.C. Since the right of hearing has been denied to the petitioner, the order is liable to be quashed in exercise of inherent powers of the court u/s 561 -A of the Code. In support of this he placed reliance on a Full Bench judgment of this court in Prem Singh vs. State & ors. 1982 KLJ 55 and Kaushal Kumar Gupta vs. M/S Dev Son Pvt. Ltd. 1989 SLJ 211. Mr.Qadri, learned Senior AAG on the other hand argued that the proviso to Section 436 has been complied by the court after the petitioner had appeared and engaged his counsel. Since the petitioner had the notice that the order discharging him has been challenged and despite this, he or his counsel did not appear, it cannot be said that Section 436 has not been complied. 3. Proviso to Section 436(1) of Cr.P.C. reads as under:- "436. Power to order inquiry. (1) On examining any record under Section 435 or otherwise, the High Court or the Session Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged; Provided that no court shall make any direction under this sub-section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made." 4. The expression "unless such person has had an opportunity of showing cause why such direction should not be made" is self explanatory because what is required is to provide an opportunity of hearing to the person who has been discharged by the court. The petition of revision against the order of discharge dated: 24.12.1983 was filed on behalf of the State in February 1989. The petition of revision against the order of discharge dated: 24.12.1983 was filed on behalf of the State in February 1989. The petitioner not only appeared, but had also engaged Mian Qayoom as his Advocate. The case was listed on 15.05.1997, but since no one appeared, the learned Single Judge after considering the facts of the case allowed the petition and set-aside the order of discharge. The question, therefore, is whether such an order amounts to an abuse of the process of the court to secure the ends of justice. In Prem Singh vs. State & ors. 1982 KLJ 55 (FB) the question referred to the Full Bench reads as under:- "Whether the High Court has power to revoke, review, recall, or alter, its own decision in a criminal case and re-hear the case and in particular, whether it has the power to do so, in respect of a decision previously rendered in a criminal revision?" The Full Bench answered the question as follows:- "In what we have stated above, we assume, that the decision has been validly pronounced and is not a nullity. The question arises whether the bar against alteration or review would be applicable where the decision is a nullity, the bar cannot operate. To this view support is lent by the decisions in the matter of T.Tomu Naidu and another (AIR 1924 Madras 640) and Ramesh Pada Mandal vs. Kadambini Dasi (AIR 1927 Calcutta 702) in which it was held that where the conditions laid down by law as precedent and requisite to the hearing of the case are not observed, the court acts without jurisdiction and its order is, therefore, void abinitio and case can be re-heard and that such re-hearing would not be barred by Section 369 of the Code of Criminal Procedure, 1998. In either case, it was found that the requirements of Section 439(2) had not been complied with in the hearing of the revision, and consequently the order passed was void abinitio and that it was, therefore, open to the court to re-hear the case on merits and that Section 369 could not stand as a bar. These cases are only illustrative. These cases are only illustrative. Cases are conceivable where the order passed in appeal or revision is a nullity not because of any procedural non-compliance by the court of appeal or revision which goes to the root of the matter, but because the order passed by the trial court itself is found to be a nullity. That may be so where the trial court has passed the order in violation of principles of natural justice and the appellate or the revisional court had no jurisdiction of its own to make an order, but its jurisdiction is only to confirm or set-aside the order of the trial court. In such cases the order passed in appeal or revision would be a nullity because in law the order of the trial court will be deemed to be non-existent and it would necessarily follow that there was no order which the appellate court or the revisional court would confirm or set-aside. Consequently, it shall be open to the appellate court or the revisional court, as the case may be, to proceed to re-hear the case as if the order already passed by it did not exist. Section 369 Cr.P.C. would not stand in the way. We hold accordingly." 5. The pith and substance of the judgment is that where the decision of the court is a nullity or the order has been passed in violation of principles of natural justice and also where the revisional court had no jurisdiction of its own to make any order, Section 369 Cr.P.C. shall not be a bar to the exercise of jurisdiction to review, recall or alter its own decision. Neither of these conditions are satisfied in this case because if the petitioner has chosen not to appear, the court cannot compel him to appear to support the order of discharge. A further question arises whether the order impugned justifies exercise of inherent power of this court. Section 561-A Cr.P.C. reads as under:- 561-A. Saving of inherent power of High Court:- Nothing in this code shall be deemed to limit or affect the inherent power 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." 6. The expression "to prevent abuse of the process of any court or otherwise to secure the ends of justice" is quite significant. The question, is whether the order passed by the Chief Judicial Magistrate (Shri Ali Mohd. Padroo) against which the State has come in revision is an abuse of the process of the Court. The allegation against the petitioner was that while posted as Office Qanango Tehsil Kargil, he was entrusted with an amount of Rs.2,12,206.80. He failed to remit this amount to the Treasury even after his transfer from the office. Accordingly a case u/s 409 RPC was registered and a report u/s 173 CR.P.C. charging him for having committed the offence punishable u/s 409 RPC was filed in the court of Chief Judicial Magistrate. After referring to the facts of the case and some judgments, the trial court passed the following order:- "In the present case, as argued by the learned defence counsel there has been mere failure to remit the Government money into the Treasury or to hand it over to the successor of the accused and no misappropriation is prima-facie made out from the material on record. The learned SPO has frankly conceded the legal position as available in the case in view of the various authorities of Honble (SC) and other HCs stated by learned defence counsel in the case. There is, therefore, no prima facie material on record to sustain the charge against the accused u/s 409 RPC at the present stage. The accused is, therefore, discharged with the observation that the department concerned may conduct a departmental enquiry first against the accused if so choses and thereafter may take such action as is permissible under law." It is, this order which has been quashed by the learned Single Judge. Since retention of Government money is prima facie proof of misappropriation to allow such an order to stand would amount to abuse of the process of the court. No only this, even the refund of Government money after the act of defalcation is discovered does not absolve the accused of the offence punishable u/s 409 RPC. This was laid down by the Supreme Court in Vishwa Nath vs. State of J&K AIR 1983 SC 174 by observing as under:- "We do not consider it necessary to refer to any decision. This was laid down by the Supreme Court in Vishwa Nath vs. State of J&K AIR 1983 SC 174 by observing as under:- "We do not consider it necessary to refer to any decision. The facts and circumstances of this case clearly establish that there was embezzlement of the Government money by the accused, inasmuch as the accused had put to personal use the Government money entrusted to him instead of depositing the same in the proper place. The fact that the accused refunded the amount when the act of his defalcation came to be discovered, does not absolve him of the offence committed by him. The accused happened to be a public servant of the Police Department and was posted as Naib-Courty. He was entrusted with the amount seized in two cases F.I.R.Nos. 16 and 17. In complete violation of the directions of law he had failed to send the amount to Sadar Courty Udhampuu and with criminal intention he had not made any entry of the money in Rahdari Register, while he made its entry in the Malkhanna Register, while he made its entry in the Malkhanna Register No.1, so that his misappropriation of the amount might not be detected by anybody. He committed criminal breach of trust with respect to this money over which he had complete dominion by putting the same to his use between 7th February 1972 to 8th August, 1972. The refund of the amount after detection does not absolve him of the offence" Since the order impugned is not nullity or without jurisdiction, therefore, the petition seeking quashment is not maintainable. It is dismissed accordingly.