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2009 DIGILAW 358 (CHH)

DIVYARAM v. STATE OF C. G.

2009-12-03

T.P.SHARMA

body2009
ORDER 1. This petition under Section 482 of the Cr.P.C. is for quashment of the order dated 31.8.2001 passed by the Second Additional Sessions Judge (F.T.C.), Jashpur Nagar, in Sessions Trial No.48/2001 whereby & where under learned Second Additional Sessions Judge has acquitted respondents No.2 to 4 of the charge of Sections 307 & 307/34 of the Indian Penal Code. 2. Quashment is prayed on the ground that the Court below has not considered the evidence adduced on behalf of the prosecution sufficient for conviction of respondents No.2 to 4 for the offence punishable under Sections 307 & 307/34 of the Indian Penal Code and thereby committed illegality. 3. Brief facts necessary for disposal of this petition is that the present petitioner along with other persons went to village Bipatpur for urad crop which he has shown in the field. Respondents No.2 to 4 came there and assaulted the petitioner and other persons and caused grievous injuries. They have attempted to commit murder of the petitioner. Report was lodged and after completion of investigation, charge sheet was filed. Charges were framed upon respondents No.2 to 4 and after providing opportunity of hearing to the parties, learned Second Additional Sessions Judge has acquitted respondents No.2 to 4 of the charges levelled against them. 4. I have heard learned counsel for the appellant and respondent No.1 / State and perused copy of the statements of the witnesses recorded during the trial. 5. Learned counsel for the petitioner vehemently argued that the present petitioner is complainant and injured person whose instance prosecution was launched. After passing of the judgment by the Second Additional Sessions Judge, the District Prosecution Officer has made proposal for filing of the appeal against the judgment of acquittal, but the State Government/competent authority has not preferred the appeal against the said judgment, therefore, the present petitioner has filed this petition for invoking extraordinary inherent jurisdiction in terms of Section 482 of the Cr.P.C. Learned counsel further argued that the evidence adduced on behalf of the petitioner and other witnesses are sufficient for drawing inference that respondents No.2 to 4 are the persons who have committed the offence of attempt to commit murder of the petitioner, but they have illegally acquitted of the said charges. Learned counsel also argued that the petitioner has not filed revision petition against the impugned judgment and petition under Section 482 of Cr.P.C. is competent and maintainable. 6. Learned counsel placed reliance in the matter of Dhariwal Tobacco Products Limited and others Vs. State of Maharashtra and Another1 in which the Apex Court has held that even in case of alternative remedy available to the parties, the petition under Section 482 of the Cr.P.C. is maintainable. 7. On the other hand, learned State counsel opposed the petition and argued that the judgment of the Court below is just and proper and has acquitted respondents No.2 to 4 on the ground that they have acted in exercise of their right of private defence of the property available to them and they have not exceeded their right. 8. Launching of prosecution, injury to the petitioner and other persons at the time of taking crop from the field situated at village Bipatpur and causing of injuries by respondents No.2 to 4 to the petitioner and other persons have not been substantially disputed by respondents No.2 to 4 in sessions trial. 9. The petitioner is private party/complainant and alternative remedy for impugning the judgment by filing revision petition was available to the petitioner, but the petitioner has not availed such remedy. As held by the Apex Court in the matter of Dhariwal-1 (supra), the present petition cannot be dismissed only on the ground that the petitioner was having alternative remedy. Power under Section 482 of the Cr.P.C. is exceptional in nature and it should be used sparingly and only in exceptional cases in order to secure real justice and not as a rule. 1. (2009) 2 SCC 370 10. While dealing with exercise of power under Section 482 of the Code in the matter of M/s. Zandu Pharmaceutical Works Ltd. and others Vs. Md. Sharaful Haque and others-2 the-Apex Court has held thus, 2. AIR 2005 SC 9 "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. AIR 2005 SC 9 "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 11. From perusal of the evidence of the petitioner, it appears that he along with other witnesses went to village Bipatpur for taking crop of urad from the field He is not resident of village Bipatpur and he is resident of Jashpur. In para 3 of his cross-examination, he has admitted that he and his father were not having any field at village Bipatpur. He is not in a position to say as to how name of his father was mutated in the property of deceased Patwaram, uncle of respondent Shyamnath. He has specifically admitted in para 4 of his evidence that in the year 1997-98, respondents came to village Bipatpur and they are residing at village Bipatpur. He has deposed that name of respondent Shyamnath was mutated in the property of deceased Patwaram but the same was subsequently cancelled by the Sub Divisional Officer. (Revenue), Kunkuri. The present petitioner who along with other witnesses had gone to village Bipatpur for taking urad crop has not deposed in his evidence as to how he was authorized for taking crop. On the other hand, respondents No.2 to 4 had taken specific defence that the petitioner along with other witnesses were taking out crop from their field, then they opposed and in exercise of right of private defence of the property they have inflicted injuries to them. The petitioner and his witnesses run away from the field. 12. On the other hand, respondents No.2 to 4 had taken specific defence that the petitioner along with other witnesses were taking out crop from their field, then they opposed and in exercise of right of private defence of the property they have inflicted injuries to them. The petitioner and his witnesses run away from the field. 12. After considering the defence and evidence of the petitioner and other witnesses, learned Second Additional Sessions Judge has acquitted respondents No.2 to 4 of the charge of Sections 307 & 307/34 of the Indian Penal Code. The finding of the Court below is not erroneous and is based on substantial evidence including the evidence of the petitioner. 13. After considering the finding of the Court below, State Government has not preferred an appeal against the said judgment. Learned Second Additional Sessions Judge has not committed any illegality warranting any interference. The petitioner has utterly failed to make out exceptional case for invoking extraordinary inherent jurisdiction. 14. Consequently, the petition being devoid of merit is liable to be dismissed and is accordingly dismissed. Petition Dismissed.