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2001 DIGILAW 1611 (AP)

P. Gunavatha Rao v. M. Mohan Raju

2001-12-11

GOPALA KRISHNA TAMADA

body2001
GOPALA KRISHNA TAMADA, J. ( 1 ) THIS is a petition under Section 482 of the code of Criminal Procedure by the petitioner, who was the complainant in C. C. No. 466 of 1994 on the file of the court of the II Addl. Munsif Magistrate, Tirupathi, questioning the order passed by the learned Magistrate dated 30-6-1998 in the said case, as confirmed by the V Addl. District Judge, Tirupathi, in crl. R. P. No. 65 of 1998. ( 2 ) THE facts which led to the filing of this petition are that the 1st respondent herein who is the accused in C. C. No. 466 of 1994 issued a cheque bearing No. 110474 dated 10-12-1992 for Rs. 4 lakhs and on presentation, the petitioner was informed by the banker that the cheque was returned with an endorsement, "insufficient funds". Pursuant to that, the petitioner herein filed a complaint against the 1st respondent herein for the alleged offences punishable under sections 138 and 142 of the Negotiable instruments Act. While so, on 30-6-1998, as the complainant i. e. , the petitioner herein was absent, the learned Magistrate dismissed the complaint observing as follows: "complainant and the accused absent. Absence of the accused is condoned in a petition under Section 317 of the Code of criminal Procedure. No representation was made on behalf of the complainant. He was absent in the previous dates of hearing also. It appears, he has no interest in prosecuting the case. In the circumstances, the case is dismissed and the accused is acquitted. " ( 3 ) AGGRIEVED by the same, the petitioner herein carried the matter by way of revision under Section 397 of the Code of Criminal procedure and filed Crl. R. P. No. 65 of 1998 on the file of the court of V Addl. District judge, Tirupathi, and the learned District judge by an order dated 21-1-1999 dismissed the same holding that the petitioner has not given sufficient reasons for his absence on the day when the matter was called in the court of the Magistrate. Hence, this petition. R. P. No. 65 of 1998 on the file of the court of V Addl. District judge, Tirupathi, and the learned District judge by an order dated 21-1-1999 dismissed the same holding that the petitioner has not given sufficient reasons for his absence on the day when the matter was called in the court of the Magistrate. Hence, this petition. ( 4 ) THE learned counsel for the petitioner strenuously contended that both the courts below erred in not accepting the contentions of the petitioner and that it was purely on account of the accident he met with on 23-6-1998 at Hyderabad, the petitioner could not attend the court on 30-6-1998 nor did he have sufficient time to inform his counsel and similarly his counsel was also absent at the relevant point of time as he had been to hyderabad on professional work. ( 5 ) ON the other hand, the learned counsel appearing for the 1st respondent opposed the petition saying that when once the petitioner has exercised his option and filed a revision before the District Judge assailing the orders passed by the learned Magistrate, it is not open for him to invoke the jurisdiction of this court under Section 482 Code of criminal Procedure in view of the prohibition contemplated under Section 397 (3) of the code. ( 6 ) HEARD the learned Public Prosecutor appearing for the 2nd respondent-State. ( 7 ) NOW, it is relevant here to extract section 397 (3) of the Code of Criminal procedure, which reads as follows: "if an application, under this section has been made by any person either to the high Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. " ( 8 ) IF the provision is accepted as it is, it is clear that a second revision at the instance of the same person is not maintainable and when once the Code prohibits the second revision, the same person cannot invoke the inherent jurisdiction of the High Court under section 482 of the Code. ( 9 ) THIS issue came up for debate before the Supreme Court as well as this court and the same is interpreted by the courts in the following manner. ( 9 ) THIS issue came up for debate before the Supreme Court as well as this court and the same is interpreted by the courts in the following manner. ( 10 ) IN Dharmapaul and others v. Smt. Ramsree and others, the Supreme Court has taken the view that -"the question that falls for our consideration now is whether the High court could have utilized the power under Section 482 of the Code and entertained the second revisional application at the instance of the 1st respondent. Admittedly, the 1st respondent has preferred a criminal applicationbeing Criminal Revision Case no. 7180 of 1978 to the Sessions Court against the order passed by a Magistrate on 17-10-1975 withdrawing the attachment. The Sessions Judge had dismissed the said case on 4-5-1979. Section 397 (3) of Cr. P. C. bars the second revision application by the same party. It is now well settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are barred by the court. Hence the high Court has clearly erred in entertaining the second revision at the instance of the 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside. " ( 11 ) AGAIN, in another case reported in deepthi @ Arati Rai v. Akhil Rai, the apex court held that -"second revision application, after the dismissal of first one by the Sessions court is not maintainable and that inherent powers under Section 482 of the code cannot be utilized for exercising powers which are expressly barred by the Code. " ( 12 ) IN another decision in Krishnan and another v. Krishnaveni, the Supreme Court has taken the view that-"ordinarily, when revision has been barred by Section 397 (3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of section 397 (3) or Section 397 (2) of the code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the high Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397 (1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings". ( 13 ) FOLLOWING the said view, the Supreme court again reiterated the same in Rajathi v. C. Ganeshan. ( 14 ) FURTHER, basing on a reference made by a learned single Judge, a Division Bench of this court after following various judgments of the apex court, by its order dated 21-9-2001 made in Crl. Petition no. 6216 of 1995, held-"from the above, it is evident that even though a bar is clear under Section 397 (3) Cr. P. C. , however in the given circumstances as explained to above, the high Court can interdict the proceedings in exercise of powers under Section 482 cr. P. C. , read with Section 401 Cr. P. C. This view was also reiterated in subsequent decisions of the apex court. The decision in Krishnan s case (3 supra) being later in point of time and the earlier decision in Dharmapal s case (1 supra) having been considered therein, the same has to be followed and binding under article 141 of the Constitution of India. Therefore, there is no conflict as such in regard to the maintainability of an application under Section 482 Cr. P. C. , as against an order passed in revision by a sessions Judge. Therefore, there is no conflict as such in regard to the maintainability of an application under Section 482 Cr. P. C. , as against an order passed in revision by a sessions Judge. The only question is how far and to what extent the power can be exercised and it depends upon the facts of each case. In view of the same, it has to be held that an application under section 482 Cr. P. C. is maintainable against an order in revision passed by the Sessions Judge under Section 397 cr. P. C. " ( 15 ) SIMILARLY, another learned single Judge of this High Court has taken the view in v, Rajanikumari v. V. Sarath Babu, that "it is true that second revision petition cannot lie before the High Court where one was dismissed by the Court of Sessions still the court of Session being a court subordinate to the High Court, its proceedings are open to scrutiny in exercise of powers under section 482 Cr. P. C. " ( 16 ) HOWEVER, another learned single Judge of this court has taken the view that when once no second revision is maintainable by a party who invokes the revisionary jurisdiction of the Sessions Court, a petition under Section 482 of Code of Criminal procedure is not maintainable, as reported in Mirapa Suresh Kumar v. State of AP. ( 17 ) IN the light of the various judgments of the apex court as well as this court, I have no hesitation to hold that this petition under section 482 of the Code of Criminal Procedure is maintainable, provided it is to secure the ends of justice or the orders passed by the courts below is nothing but an abuse of process of the court. For the purpose of invoking the jurisdiction of this court under section 482 of the Code of Criminal procedure, it is to be seen whether the orders of the courts below would end in miscarriage of justice and it is an abuse of process of the court. ( 18 ) INSOFAR as the facts of the case on hand are concerned, here is a case where, according to the facts alleged in the complaint, the 1st respondent borrowed an amount of Rs. ( 18 ) INSOFAR as the facts of the case on hand are concerned, here is a case where, according to the facts alleged in the complaint, the 1st respondent borrowed an amount of Rs. 4 lakhs from the petitioner herein and in lieu thereof, he issued a cheque for the said amount dated 10-12-1992 and when it was bounced, he filed the present complaint for the alleged offence punishable under Sec. 138 of the Negotiable Instruments Act. If the orders of the courts below are allowed to continue, the petitioner will be left with no option and it is not what the justice system intends. That is the reason why the High court is conferred with inherent powers under Section 482 of the Code of Criminal procedure to set right the miscarriage that has been caused. But, of course, it does not mean that the inherent powers can be invoked in each and every case as a matter of routine. ( 19 ) IN the light of the judgments cited supra with reference to the facts of this particular case, I hold that this is not a vexatious litigation and the petitioner is prosecuting the case bonafide and may be on that particular day when the case was adjourned, as it was beyond his control, neither he could be present in the court nor his counsel. As stated above, it is the duty of the courts to see that the justice is secured and process of the court is not abused. ( 20 ) HERE, I have to discuss one more thing, i. e. , in a case of this nature what is the remedy that is left open to the petitioner. Ordinarily, when once a complaint is dismissed and the accused is acquitted, the only course left open for the complainant is to file an appeal against the acquittal as contemplated under section 378 of the Code of Criminal procedure. But, in the instant case, the petitioner has chosen to file a revision under section 397 of the Code before the Sessions court and being unsuccessful, he invoked the jurisdiction of this court under Section 482 of the Code. Now, directing theepetitioner to file an appeal against acquittal under section 378 Cr. P. C. may not be of any avail on account of paucity of time. Now, directing theepetitioner to file an appeal against acquittal under section 378 Cr. P. C. may not be of any avail on account of paucity of time. Hence, treating this petition as an appeal filed under Section 378 of the Code, I am inclined to set aside the orders of the courts below and remit the matter back to the learned Magistrate for fresh disposal in accordance with law. ( 21 ) ACCORDINGLY, this petition is allowed and the order dated 30-6-1998 made in c. C. No. 466 of 1994 by the II Addl. Munsif magistrate, Tirupathi, as confirmed by the order dated 21-1-1999 made in Crl. R. P. No. 65 of 1998 on the file of the court of the V addl. District Judge, Tirupathi, are hereby quashed and the matter is remitted back to the learned Magistrate for fresh disposal in accordance with law as expeditiously as possible, preferably within a period of six months from the date of this order. However, it is made clear that the petitioner shall cooperate for the early disposal of the case, without seeking any adjournments.