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2001 DIGILAW 897 (AP)

Ponduri Bhushaiah v. Deputy Registrar of Co-op. , Societies, guntur

2001-08-17

R.RAMANUJAM

body2001
R. RAMANUJAM, J. ( 1 ) THIS Criminal Revision Case is against the order of the Special Court under the A. P. Co-operative Societies Act, 1964, Vijayawada, passed on 25-1-2001, in Crl. M. P. No. 89 of 2001 in CC. No. 2 of 2001. ( 2 ) THE first petitioner herein is the secretary of Lingamguntla, Primary agricultural Co-operative Society, Guntur district. The second petitioner is the President of the said Society. The Deputy Registrar of co-operative Societies, Guntur, filed a complaint against the petitioners before the special Court, Vijayawada, under the A. P. Co-operative Societies Act (for short the act ), for the alleged offences committed by them publishable under Sees. 408, 420, 477 (A) IPC r/w Secs. 79 (f) (h) and 79 (1) (f) of the act. In that case, the complainant, who is the first respondent herein, filed Crl M. P. No. 89 of 2001 under Sections 70 and 74 of the Code of Criminal Procedure, seeking issuance of non-Bailable Warrants against the petitioners herein. ( 3 ) IT appears the Special Court took cognizance of the offences on 25-1-2001, after examining the complainant and recording his oral statement. Immediately thereafter, instead of considering of prayer of the complainant-respondent herein for issue of non-Bailable Warrants against the petitioners herein, the Special Court issued far-reaching directions by its order dated 25-1-2001. I consider it appropriate here to extract the entire order. "the complainant in his sworn statement represented to the Court that A-1 is indulging and meddling with the funds of the Society which is detrimental to the interest of the Society at large involving huge amounts amounting to rs. 40,000/- and also the tampering with the records of the society. In support of the contentions of the complainant, the report issued by the R. D. O. , dated 13,14 and 16th of June 2000 were also filed along with paperpublication in "vartha" of Guntur District edition, dt. 24-1-2001 given by the complainant herein his official capacity to the members of lingamguntla P. A. C. S. , Pedakurapadu village. The said paperpublication clearly disclosed that the complainant warned the members of the Society and the public at large not to enter into any transaction with A-1 and A-2 either financial or with the detrimental to the interest of the society. The said paperpublication clearly disclosed that the complainant warned the members of the Society and the public at large not to enter into any transaction with A-1 and A-2 either financial or with the detrimental to the interest of the society. In view of the facts and circumstances and in view of the apprehension of the complaint expressed herein with regard to the acts of A-l and a-2 in meddling with the properties of the society and tampering of the records. This Court is of the opinion that in the interest of justice, the properties of the society have to be safeguarded together with the records. A-1 and A-2 are hereby directed not to do any act either financially or which is detriment to the interest of the Society causing defame to the existence of the society. The respondents 1 and 2 further directed not to enter with any transaction of the society either directly or indirectly without permission of this Court until further orders. Meanwhile, the paid Secretary by name R. Raghuramaiah is directed to put the steps in the shoes of the President and Secretary directly taking responsibilities and duties thereon after serving this order on A-1 and A-2 as such a-1 and A-2 are function less as President and Secretary of Lingamguntla P. A. C. S. Pedakurapadu, Guntur District. It is further clarified to both parties that it is not interest of this Court to over-look the order of Hon ble High Court of Andhra pradesh and it is only the interest of the court to safeguard the properties and funds of the Society. It is further clarified to both parties and also to the paid secretary of the society by name r. Raghuramaiah who is present in the court at the time of passing the orders to look after implementation of these orders with true letter and spirit and see that the funds of the society and properties and records of the society should be maintained in such a way without causing any detrimental loss to the society and members thereon until further orders. It is also further directed and clarified that A-1 and A-2 who are the respondents herein should obey this court orders in all aspects specifically in keeping the properties and funds of the society safeguarded in the interest of members of the society. It is also further directed and clarified that A-1 and A-2 who are the respondents herein should obey this court orders in all aspects specifically in keeping the properties and funds of the society safeguarded in the interest of members of the society. For filing any objection and counter on behalf of A-1 and A-2 the matter is posted to 5-2-2001". ( 4 ) IT is the above said order that is challenged in this revision case. ( 5 ) MR. A. Ramanarayana, learned Counsel for the petitioners submits that the aforesaid order made by the Special Court is wholly without jurisdiction. In his submission, the special Court constituted under Section 83 of the Act, can only take cognizance of and try any offences under the Act, but cannot issue any directions regarding the functioning of the Society. Overlooking this undamental aspect, the Special Court proceeded to exercise jurisdiction not vested in it and issued the aforementioned directions far in excess of its jurisdiction and, therefore, he order of the Special Court liable to be set aside. ( 6 ) MR. M. PRABHAKAR Rao, learned Counsel for the respondents, however, raised a preliminary objection that the impugned order is a mere interlocutory order and, therefore, revision cannot be entertained against that order by this Court in view of the prohibition contained under sub-section (2) of Section 397 of the C. R. P. C. He further submits that the order of the Special Court is a reasonable and just one, in the facts and circumstances of the case and therefore should not interfered with by this Court. ( 7 ) I have given my anxious consideration to the preliminary objection, yet I am unable to sustain it. ( 8 ) AS already noted, the respondent- complainant filed Crl M. P. No. 89 of 2001, only for issue of non-bailable warrants against the accused-petitioners herein. In that petition, the complaint-respondent did not seek any directions from the Special Court. ( 8 ) AS already noted, the respondent- complainant filed Crl M. P. No. 89 of 2001, only for issue of non-bailable warrants against the accused-petitioners herein. In that petition, the complaint-respondent did not seek any directions from the Special Court. Instead of considering the prayer for issue of non-bailable warrants against the petitioners, the Special Court, strangely, proceeded to consider the matters which are wholly outside the scope of that criminal miscellaneous petition and issued directions against the petitioners herein regarding the day-to-day business of the Society and further directed that the Paid Secretary of the Society shall take upon himself the responsibilities of the President and Secretary of the Society and function, as such. ( 9 ) UNDOUBTEDLY, the aforesaid directions issued by the Special Court are far in exercise of the powers conferred upon it under section 83-A of the Act. Therefore, in my considered view, the order passed by the special Court amounts to clear abuse of process of the Court. The question then arises is , Can this Court set aside such order? No, says the respondent-Counsel, because of the specific bar contained under sub-section (2) of Section 397 of Cr. P. C. ( 10 ) THE question whether the High Court can interfere with an interlocutory order under its inherent jurisdiction to prevent abuse of process of the Court Order to secure the ends of justice was considered by several high Courts, including the Apex Court. In damodar Das Babaji v. Harihar Nahak and others, the Orissa High Court considered this issue and held that the High Court can interfere even with an interlocutory order under its inherent jurisdiction to secure the ends of justice. ( 11 ) CONSIDERING the very same question, a three-Judge Bench of the Supreme Court in madhu Limaye v. State of Maharashtra held thus,"10. As pointed out in Amar Math s case ( AIR 1977 SC 2185 ) (Supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The legislature in its wisdom decided to check this delay by introducing subsection (2), in Section 397. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The legislature in its wisdom decided to check this delay by introducing subsection (2), in Section 397. On the one hand, a bar has been put in the way of the high Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court. "but, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at bought one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in subsection (2) of Section 397 operates only in exercise of the revisional power of the high Court, meaning thereby that the high Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles, enunciated above, the inherent power will come into play, there being no other provision in the code for the redress of the grievance of the aggrieved party. But, then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the high Court under the 1898 Code, the high Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High court is absolutely necessary, then nothing contained in Section 397 (2) can limit or effect the exercise its inherent power by the High court. But such cases would be few and far between. The High court must exercise the inherent power very sparingly. But such cases would be few and far between. The High court must exercise the inherent power very sparingly. One such case would be desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine ofautrefois acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the high Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the court and /or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible. " (Emphasis supplied ). ( 12 ) LATER on, another three-Judge Bench of the Supreme Court in Krishnan and another v. Krishnaveni and another, reiterated the aforesaid legal position thus, 11. "10. Ordinarily, when revision has been barred by S. 397 (3) of the Code, a person accused/complainant cannot be allowed to take recourse to the revision to the High Court under sec. 397 (1) or under inherent powers of the High Court under Sec. 482 of the code since it may amount to circumvention of the provisions of sec. 397 (3) or Sec. 397 (2) of the Code, it is seen that the High Court has suomotu power under Sec. 401 and continuous supervisory jurisdiction under Sec. 483 of the Code. 397 (1) or under inherent powers of the High Court under Sec. 482 of the code since it may amount to circumvention of the provisions of sec. 397 (3) or Sec. 397 (2) of the Code, it is seen that the High Court has suomotu power under Sec. 401 and continuous supervisory jurisdiction under Sec. 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 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 ensure. 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 sec. 397 (1) read with S. 401 of the code. " ( 13 ) RECENTLY, a Division Bench of the Apex court in its decision in Puran v. Rambilas and another held thus,"16. Further, even if it is an interlocutory order, the High Court s inherent jurisdiction under Section 482 is not affected by the provisions of Sec. 397 (3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified (emphasis supplied), (Re. Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 , ( AIR 1978 SC 47 , 1978 Cri LJ 165) and krishna v. Krishnaveni, (1997) 4 SCC 241 , (1997 AIR SCW 950 , AIR 1997 SC 987 , 1997 Cri LJ 1519 ). " ( 14 ) FROM the aforementioned legal position it is clear that this Court can always, in exercise of its jurisdiction under section 482 of Cr. " ( 14 ) FROM the aforementioned legal position it is clear that this Court can always, in exercise of its jurisdiction under section 482 of Cr. P. C, interfere even with an interlocutory order when such order is without jurisdiction, or palpably illegal or amounts to abuse of process of the Court or causes miscarriage of justice. There is yet another reason as to why the preliminary objection cannot be sustained. The impugned order of the Special Court cannot, be termed as an interlocutory order within the meaning of that term under Section 397 of Cr. P. C. , since the directions contained therein relating to the conducting of the day-to-day business of the society have noting to do with the scope of the criminal case pending against the petitioners. ( 15 ) THE question as to what is an interlocutory order for the purpose of applying the bar contained under sub- sec. (2) Section 397 Cr. P. C. fell for consideration before a three-Judge Bench of the Supreme Court in Madhu Limaye v. State of Maharashtra (2 supra ). After considering the entire case law on this aspect, the Supreme court held thus,". . . The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words "interlocutory order" occurring in Sec. 397 (2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by sec. 397 (1 ). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chap. XXIX of the code. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by sec. 397 (1 ). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chap. XXIX of the code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High court in terms identical to the one in the 1898 Code. In what cases then the High court will examine the legality or propriety of an order or the legality of any proceeding of an inferior Criminal court? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies? such cases will be very few and far between. It has been pointed out repeatedly, vide, for example, The River water Commissioners v. William Adamson, (1876-77) 2 AC 743 and R. M. D. Chamarbaugwalla v. The Union of India, 1957 SCR 930 , ( AIR 1957 SC 628 ) that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real intention of the Legislature. On the one hand, the Legislature kept intact the revisional power of the High court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to use that the real intention of the Legislature was not to equate the expression " interlocutory order" as invariably being converse of the words "final order". There maybe an order passed during the course of a proceeding which may notbe final in the sense noticed in Kuppuswami s case (AIR 1949 FC1) (supra), but, yet it may not be an interlocutory order - pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-sec. (2) of S. 397 is not meant to be attracted to such kinds of intermediate orders. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-sec. (2) of S. 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Art. 134 is not meant to be attracted to such kinds of intermediate orders. They may not be final order for the purpose of Art. 134 of the constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Sec. 397 (2 ). It is neither advisable, nor possible, to make a catalogue of order to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list, of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, it surely not interlocutory so as to attract the bar of sub-sec. (2) of sec. 397. In our opinion it must be taken to be an order of the type falling in the middle course. " ( 16 ) APPLYING the aforementioned test, I hold that the impugned order, in this case, is not a mere interlocutory order but an intermediate order, if not a final order. In this view of the matter, the jurisdiction of this court, even under Section 397 of Cr. P. C. to entertain the revision case, is not barred. ( 17 ) THE contention of the learned Counsel for the respondents that the impugned order is a reasonable and just order in the facts and circumstances of the case, cannot be accepted for the simple reason that the directions issued by the Special Court are without any jurisdiction or authority, which amount to abuse of process of Court. ( 18 ) FOR the aforementioned reasons, I conclude that the impugned order of the special Court has to be quashed. Accordingly, the Criminal Revision is allowed and the impugned order of the Special Court under a. P. C. S. Act, Vijayawada, in Crl. M. P. No. 89 of 2001 in C. C. NO. ( 18 ) FOR the aforementioned reasons, I conclude that the impugned order of the special Court has to be quashed. Accordingly, the Criminal Revision is allowed and the impugned order of the Special Court under a. P. C. S. Act, Vijayawada, in Crl. M. P. No. 89 of 2001 in C. C. NO. 2 of 2001 dated 25-1-2001 is auashed.