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2010 DIGILAW 4552 (MAD)

D. Nandagopal v. G. Nesamani

2010-10-08

R.MALA

body2010
Judgment :- 1. The petitioner has filed the above petition for a direction to the learned IV Additional Judge, City Civil Court, Chennai, to keep the final hearing of Crl.A.No.60 of 2009 in abeyance on the basis of the Memo filed by the learned counsel for the petitioner, till the Supreme Court takes the Special Leaves Petition filed by the petitioner "for admission". 2. Heard the learned counsel for the petitioner. He submitted that the petitioners father earlier filed a private complaint against the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act, and the said private complaint was taken on file in C.C.No.9968 of 2005 and by judgment dated 23.3.2009, the respondent-accused was found guilty and convicted and sentenced to undergo imprisonment for one year and the respondent-accused was also directed to pay compensation of Rs.12 lakhs under Section 357(3) Cr.P.C. to the father of the petitioner. As against the said judgment of conviction and sentence, the respondent-accused preferred appeal in Crl.A.No.60 of 2009 before the City Civil Court. 3. During the pendency of the said Criminal Appeal, the petitioners father died and the petitioner filed an application to implead himself as a party-respondent, along with his brothers and sisters, but the learned Fourth Judge, City Civil Court, Chennai, has not taken steps to pass orders in this application and hence he filed Crl.O.P.No.9268 of 2010 before this Court to direct the lower Court to pass orders in the impleading application and also to direct the learned Fourth Additional Judge of the City Civil Court, Chennai to pass orders on merits in Crl.M.P.No.6393 of 2009, but in the meanwhile, the petitioner also filed another petition before this Court in Crl.O.P.No.16933 of 2010 seeking for transfer of Crl.A.No.60 of 2009 from the file of IV Additional Judge of City Civil Court, Chennai to any other Court at Chennai. 4. 4. This Court has passed an order on 20.9.2010 in both the Crl.O.Ps., namely Crl.O.P.No.9268 and 16933 of 2010, directing the petitioner to bring the legal heirs on record in the appeal and if any application filed by the petitioner is pending in this regard, the petitioner was directed to effectively prosecute the same before the learned IV Additional Judge, City Civil Court, Chennai and the Court was also directed to pass suitable orders on the application to implead the legal heirs and then give an effective hearing on the appeal and pass suitable orders. 5. As against the said order passed by this Court on 20.9.2010 in Crl.O.P.Nos.9268 and 16933 of 2010, the petitioner has preferred a Special Leave Petition before the Supreme Court, which is yet to be numbered. 6. The petitioner has now filed a Memo before the Court below and sought for adjournment of the Criminal Appeal, but the learned Judge has acted indifferently. Hence, the petitioner has come forward with this Crl.O.P. under Section 482 Cr.P.C. for a direction to direct the learned IV Additional Judge, City Civil Court, Chennai, to keep in abeyance the final hearing of Crl.A.No.60 of 2009, on the basis of the Memo filed by the learned counsel for the petitioner, till the Supreme Court takes the SLP filed by the petitioner "for admission". It is in the above background, the Crl.O.P. under Section 482 Cr.P.C. is listed under the caption "for maintainability" before this Court. 7. In the present case, on a perusal of the records of the Court below, it is seen that the learned counsel for the petitioner filed Memos on 5.10.2010 and 6.10.2010 and that no order had been passed on the said Memos dated 5.10.2010 and 6.10.2010. But from page 31 of the typed set of papers filed along with the present Crl.O.P., it is seen that, one more Memo is dated 1.10.2010, but on a perusal of the records called for from the Court below, it is seen that the said Memo dated 1.10.2010 is entirely different from the ones filed on 5.10.2010 and 6.10.2010 as found in the records of the Court below. However, no such Memo dated 1.10.2010 is available in the records of the Court below. However, no such Memo dated 1.10.2010 is available in the records of the Court below. Furthermore, in pursuance of the order of this Court in the abovesaid Crl.O.P.Nos.9268 and 16933 of 2010, the application filed for impleading the legal heirs, had been allowed and the legal heirs of the deceased father of the petitioner, were brought on record in the appeal and the amended copy of the memorandum of grounds of appeal had been received in Court below. Further, the petitioner has not even filed a petition under Section 309 Cr.P.C. seeking for adjournment of the case. 8. It is to be noted that this Court has got inherent powers under Section 482 Cr.P.C., which has got to be used only under exceptional and deserving circumstances and it would not be proper on the part of the petitioner to seek a prayer for a direction to the Court below to keep in abeyance any criminal proceedings. Furthermore, this Court was also seized of the case and the petitioner ought to have agitated the case before the competent forum and not before this Court under the provisions of Section 482 Cr.P.C. Hence, at the threshold, it has to be observed that the present Crl.O.P. under Section 482 Cr.P.C. is not maintainable. 9. At this juncture, learned counsel for the petitioner pointed out that to secure the ends of justice, the Crl.O.P. is maintainable. Considering this contention along with the facts of the case, since both the above said Crl.O.Ps. are disposed of by this Court on 20.9.2010 in Crl.O.P.Nos.9268 and 16933 of 2010, and if at all the petitioner is aggrieved by the same, he can very well agitate the same by way of appeal before the appropriate forum and he is desisted from filing this Crl.O.P. under Section 482 Cr.P.C. seeking abeyance of the criminal proceedings in Crl.A.No.60 of 2009 pending before the Court below, till the Supreme Court takes the SLP filed by the petitioner "for admission". The petitioner ought to have taken steps in accordance with law, effectively, to bring the case before the Supreme Court. 10. The petitioner ought to have taken steps in accordance with law, effectively, to bring the case before the Supreme Court. 10. Learned counsel for the petitioner further contended that because of the indifferent attitude on the part of the concerned learned Presiding Officer of the Court below, the petitioner is apprehending that he may not get justice before Court and hence, he wanted to keep in abeyance the final hearing of the case in Crl.A.No.60 of 2009 on the basis of the Memo filed by him. But this Court is of the view that mere filing of the said memo is not suffice and it is not possible for this Court to entertain the Crl.O.P. under Section 482 Cr.P.C. on the basis of the said Memo. 11. In this regard, it would be worthwhile to quote Section 482 Cr.P.C : "Section 482 Cr.P.C. Saving of inherent powers of High Court--Nothing in this Code shall be deemed to limit or affect the inherent powers 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." 12. The well settled principles laid down by the Apex Court, where under the High Court is empowered to exercise its inherent powers are: (i) that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (ii) that it should be exercised very sparingly to prevent abuse of any Court or otherwise to secure the ends of justice; and (iii) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. 13. Whenever the High Court is satisfied that it is necessary, in order to secure the ends of justice, that it should interfere under its inherent powers under Section 482 Cr.P.C., it ought to do so. When a clear mandatory provision of law is overlooked, the High Court has power to correct an obvious error. 14. In the light of all the above stated circumstances, I am of the view that the present Crl.O.P. under Section 482 Cr.P.C. is not maintainable and the same is liable to be rejected. 15. Accordingly, the Crl.O.P.SR. is rejected.