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2011 DIGILAW 113 (CHH)

V. Narayanasamy v. Ajay Chandrakar

2011-03-23

T.P.SHARMA

body2011
Judgment (1) By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the petitioner has prayed for quashment of the order dated 14- 12-2010 passed by the Sessions Judge, Raipur in Criminal Revision No. 71/2010 affirming the order dated 6-3-2010 passed by the Judicial Magistrate First Class, Raipur in Criminal Complaint Case No. 94/2010 and for direction to the Court below to proceed further in accordance with law. (2) By order dated 6-3-2010, learned Judicial Magistrate First Class has dismissed the application filed on behalf of the petitioner for conversion of summon trial into warrant trial in accordance with Section 259 of the Code, same was challenged before the revisional Court and vide order impugned, while affirming the order passed by the trial Court, the revisional Court has also dismissed the revision. Brief facts necessary for disposal of this petition are that respondent No. 1 has filed complaint against the petitioner and respondent No. 2 for the offence punishable under Section 500 of the IPC, before the Court of Judicial Magistrate First Class, Raipur. After due inquiry under Chapter XV of the Code, learned Judicial Magistrate First Class has registered complaint and issued process under Section 204 (1) of the Code to the petitioner and respondent No. 2. The petitioner filed application under Section 259 of the Code for conversion of summon trial into warrant trial vide application dated 15- 1-2010 on the ground that if the trial is converted into warrant trial, the petitioner would get opportunity of cross-examining the complainant witnesses before framing of charge and if the case is not tried as warrant trial, irreparable loss would be caused to the petitioner. After providing opportunity of hearing to the parties, the trial Court dismissed the application vide order dated 6-3-2010 on the ground that the application is not maintainable as the trial has not been commenced with an observation that the petitioner is at liberty to file application at subsequent stage, same was challenged before the Court of Sessions Judge, Raipur and vide order impugned, learned Sessions Judge held that the trial has been commenced, but the provisions of Section 259 of the Code do not attract at the initial stage of trial and if at any stage of trial it appears to the Magistrate that it would be necessary in the interest of justice to convert the summon trial into warrant trial, the Magistrate is empowered to convert the summon trial into warrant trial and rehear the case and recall the witnesses. (3) I have heard learned counsel for the parties, perused the orders of both the Courts below, copy of the complaint and copies of other documents. (4) Learned counsel for the petitioner vehemently argued that this is petition under Section 482 of the Code and same is maintainable even after rejection of revision filed on behalf of the petitioner. Petition under Section 482 of the Code is also maintainable even against the interlocutory orders or any orders. Both the Courts below have misconceived in holding that the trial has not commenced or the trial is in initial stage and, therefore, the application under Section 259 of the Code is not maintainable. Learned counsel further argued that trial commences from the date when the accused made his appearance. Learned counsel also argued that the petitioner has applied for conversion of summon trial into warrant trial at the initial stage. In summon trial the petitioner would not have remedy to cross-examine the witnesses to testify their truthfulness before charge in accordance with Section 244 of the Code. The accused would lose his valuable right of discharge before framing of charge in accordance with Section 245(2) of the Code. If trial is converted into warrant procedure, no prejudice would be caused to respondent No. 1 and a detailed procedure would be available for trial providing ample opportunity to both the parties. By dismissing the application by both the Courts below, both the Courts below have committed illegality and have caused serious prejudice to the petitioner. If trial is converted into warrant procedure, no prejudice would be caused to respondent No. 1 and a detailed procedure would be available for trial providing ample opportunity to both the parties. By dismissing the application by both the Courts below, both the Courts below have committed illegality and have caused serious prejudice to the petitioner. Learned counsel for the petitioner placed reliance in the matter of Union of India v. Major General Madan Lal Yadav (Retd.) (1996) 4 SCC 127 : AIR 1996 SC 1340 in which the Supreme Court has held that trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance. Learned counsel further placed reliance in the matter of Rajendra Kumar Sitaram Pande v. Uttam (1999) 3 SCC 134 : AIR 1999 SC 1028 in which the Supreme Court has held that order directing issuance of process is not an interlocutory order and revision is maintainable against such order. Learned counsel also placed reliance in the matter of Dharimal Tobacco Products Ltd. v. State of Maharashtra, AIR 2009 SC 1032 in which the Supreme Court has held that alternative remedy of revision by itself does not constitute bar for entertaining application under Section 482 of the Code and even in cases where second revision before High Court after dismissal of first one by Court of Session is barred under Section 397(2) of the Code, the inherent power of the High Court is available. (5) On the other hand, learned counsel for respondent No. 1 opposed the petition and submitted that power under Section 482 of the Code should be exercised sparingly, it does not confer any new power and it can be exercised only in three circumstances 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. Learned counsel placed reliance in the matter of M/s. Zandu Pharmaceutical Works Ltd. v. Md. Sharaful Haque, AIR 2005 SC 9 in which the Supreme Court has dealt with exercise of power under Section 482 of the Code. Learned counsel placed reliance in the matter of M/s. Zandu Pharmaceutical Works Ltd. v. Md. Sharaful Haque, AIR 2005 SC 9 in which the Supreme Court has dealt with exercise of power under Section 482 of the Code. Learned counsel further placed reliance in the matter of Poonam Chand Jain v. Fazru, AIR 2005 SC 38 in which the Supreme Court has held that order issuing process cannot be reviewed or reconsidered by Magistrate and same is interlocutory therefore, same is not revisable. Learned counsel also placed reliance in the matter of Subrata Das v. State of Jharkhand (2010) 10 SCC 798 : AIR 2011 SC 177 in which the Supreme Court has held that the power vested in the High Court under Section 482 of the Code can only be invoked for quashing an ongoing investigation, complaint or other proceedings only in cases where either there is legal power to the continuance of the proceedings such as the absence of a sanction wherever required or where averments made in the complaint or first information report even if accepted on their face value do not constitute an offence or where there is no legal evidence to support the charge made against the accused. Learned counsel relied upon the matter of Deepti alias Arati Rai v. Akhil Rai (1995) 5 SCC 751 in which the Supreme Court has held that inherent power cannot be utilized for exercising powers expressly barred by the Code or as a second revision. Learned counsel further relied upon the matter of P. Vijayapal Reddy v. The State (1978) 4 SCC 63 : AIR 1978 SC 1590 in which the Supreme Court has held that the High Court does not ordinarily interfere at an interlocutory stage of a criminal proceeding pending in a subordinate Court. Learned counsel also relied upon the matter of Santhamma Radhamany Amma v. Kunju Pillai, 1981 Cri LJ 247 in which the Kerala High Court has held that in a summons case the trial commences as soon as the accused appears before Court and the particulars of the offence are put to him. Learned counsel placed reliance in the matter of Shriniwas B. Pandiya v. Akola Janata Commercial Co-op. Learned counsel placed reliance in the matter of Shriniwas B. Pandiya v. Akola Janata Commercial Co-op. Bank Ltd., 2009 Cri LJ 110 in which the Bombay High Court (Nagpur Bench) has held that conversion of summon trial into warrant trial in case of offence punishable under Section 138 of the Negotiable Instruments Act is not permissible in the light of Section 143 (1) of the Negotiable Instruments Act. (6) SUBSTANTIALLY, the application filed under Section 259 of the Code has been dismissed by the trial Court as premature on the ground that trial has not commenced or the application has not been filed at appropriate stage. While dealing with question of commencement of trial, the Supreme Court has observed in Major General Madan Lal Yadav's case (supra) that under the Code of Criminal Procedure, 1973 trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance etc. Equally, at a sessions trial, the Court considers the committal order under Section 209 by the Magistrate and proceeds further. It takes cognizance of the offence from that stage and proceeds with the trial. The trial begins with the taking of the cognizance of the offence and taking further steps to conduct the trial. (7) As regards maintainability of petition under Section 482 of the Code, the Supreme Court in the matter of M/s. Zandu Pharmaceutical (supra) and in catena of judgments has held that power under Section 482 of the Code should be exercised sparingly, it does not confer any new powers on the High Court and it can be exercised only in following circumstances 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. In para 8 of the judgment in M/s. Zandu Pharmaceutical's case (supra), the Supreme Court has held thus, "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. 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." (8) WHILE dealing with question of invoking extraordinary power under Section 482 of the Code at the initial stage, the Supreme Court has observed in para 6 of the judgment in the matter of Subrata Das (supra), as follows :- "The power vested in the High Court under Section 482 of the Code can only be invoked for quashing an ongoing investigation, complaint or other proceedings only in cases where either there is legal power to the continuance of the proceedings such as the absence of a sanction wherever required or where averments made in the complaint or first information report even if accepted on their face value do not constitute an offence or where there is no legal evidence to support the charge made against the accused." While dealing with question of invoking inherent jurisdiction after dismissal of revision the Supreme Court in Deepti's case (supra) has observed that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. (9) WHILE considering question of maintainability of the petition under Section 482 of the Code for invoking extraordinary inherent jurisdiction, the Supreme Court in Dharimal's case (supra) has observed in paras 8, 9 and 10 of its judgment as under :- "8. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. (9) WHILE considering question of maintainability of the petition under Section 482 of the Code for invoking extraordinary inherent jurisdiction, the Supreme Court in Dharimal's case (supra) has observed in paras 8, 9 and 10 of its judgment as under :- "8. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R. P. Kapur v. State of Punjab, AIR 1960 SC 866 to Som Mittal v. Govt. of Karnataka, ((2008) 3 SCC 574 : AIR 2008 SC 1528 has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908 this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675) : AIR 2003 SC 3044. Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397(2) of the Code, the inherent power of the Court has been held to be available. 9. The power of the High Court can be exercised not only in terms of Section 482 of the Code but also in terms of Section 483 thereof. The said provision reads thus :- "483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates :- Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates." 10. Inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of. (See Krishnan and another v. Krishnaveni (1997) 4 SCC 241 : AIR 1997 SC 987). It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of. (See Krishnan and another v. Krishnaveni (1997) 4 SCC 241 : AIR 1997 SC 987). In fact in Adalat Prasad v. Rooplal Jindal, ((2004) (7) SCC 338 : AIR 2004 SC 4674) to which reference has been made by the learned single Judge of the Bombay High Court in V. K. Jain (supra) this Court has clearly opined that when a process is issued, the provisions of Section 482 of the Code can be resorted to." (10) IN Rajendra Kumar's case (supra), the Supreme Court has held that it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 of the Code would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 of the Code could be exercised against the same. The Supreme Court has further held that order of Magistrate directing issuance of process is not an interlocutory order and, therefore, amenable to revisional jurisdiction. However, it is settled law that petition under Section 482 of the Code is maintainable even against the interlocutory order. In the present case, by filing application under Section 259 of the Code the petitioner has prayed that trial against him be converted into warrant trial in accordance with Section 259 of the Code. The trial Court has taken cognizance against the petitioner for the offence punishable under Section 500 of the IPC and has issued process under Section 204(1) of Code. Offence under Section 500 of the IPC is punishable with simple imprisonment for two years, or with fine, or with both. Chapter XX of the Code provides the procedure for summon trial. Provisions under Sections 251 to 258 of the Code provide complete procedure for summon trial. Provision contained in Section 259 of the Code is exception to the procedure provided in Sections 251 to 258 of the Code. Section 259 of the Code reads thus, "259. Chapter XX of the Code provides the procedure for summon trial. Provisions under Sections 251 to 258 of the Code provide complete procedure for summon trial. Provision contained in Section 259 of the Code is exception to the procedure provided in Sections 251 to 258 of the Code. Section 259 of the Code reads thus, "259. Power of Court to convert summons-cases into warrant-cases.- When in the course of the trial of a summons-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice; the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant- cases and may recall any witness who may have been examined." (11) As per the provisions of Section 259 of the Code, if it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, then the Magistrate may proceed to re-hear the case in the manner provided by the Code for the trial of warrant cases. Provisions contained in Section 259 of the Code give power to the Magistrate that at any stage of trial if it appears to the Magistrate, then the Magistrate may convert the summon trial into warrant trial. (12) By filing application under Section 259 of the Code, the petitioner has prayed for conversion of summon trial into warrant trial i.e. for conversion of special procedure from general procedure for his benefit of taking opportunity of cross-examination before framing of charge in terms of Section 244 of the Code. Virtually, by filing application under Section 259 of the Code, the petitioner has prayed that the accused (the petitioner herein) be tried by special procedure in place of general or ordinary procedure provided for trial of the aforesaid offence. As provided under Section 259 of the Code, it is the Magistrate to whom it should appear that in the interest of justice the offence should be tried in accordance with the procedure for trial of warrant case. It is not for the accused to pray that he should be tried by special procedure. As provided under Section 259 of the Code, it is the Magistrate to whom it should appear that in the interest of justice the offence should be tried in accordance with the procedure for trial of warrant case. It is not for the accused to pray that he should be tried by special procedure. Virtually, by filing application under Section 259 of the Code, the petitioner/accused has prayed that he be tried by a particular procedure instead of general procedure applicable to trial. Substantial question for consideration in the present case is 'whether the accused has a right to be tried by a particular procedure ?' (13) GENERAL procedure for trial of sum- mon-cases, warrant-cases and sessions cases has been provided in the Code. The legislature has provided exceptional provision to general procedure and has empowered the Court to deviate from general procedure by adopting special procedure in appropriate cases, if it appears to the Magistrate during trial in the interest of justice to adopt such procedure or to deviate from general procedure. (14) WHILE dealing with question of right of the accused to be tried by a particular Court or by a particular procedure, the Supreme Court in the matter of Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, AIR 1953 SC 394 has held that the accused has no vested right to be tried by a particular Court or by a particular procedure. Para 9 of the said judgment reads thus, "(9) In this context it is necessary to notice that what is prohibited under Art. 20 is only conviction or sentence under an 'ex post facto' law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time cannot 'ipso facto' be held to be unconstitutional. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a Court different from that which had competence at the time cannot 'ipso facto' be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved." By applying the dictum of the Supreme Court in the matter of Rao Shiv Bahadur (supra), the Supreme Court has again reiterated in para 9 of its judgment in the matter of Union of India v. Sukumar Pyne, AIR 1966 SC 1206 as follows : "A person accused of the commission of an offence has no vested right to be tried by a particular Court or a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognized that "no person has a vested right in any course of procedure" (vide Maxwell 11th Edition, p. 216)." (15) FOLLOWING points emerge from the aforesaid discussion :- (a) The trial commences from the date of taking cognizance and issuance of process to the accused for his appearance. (b) in appropriate cases, petition under Section 482 of the Code may be entertained even against the interlocutory order or any order if the conditions 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; and satisfied, to do justice between the parties. (c) The accused has no vested right to be tried by a particular Court or by a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. (16) WHILE dismissing the application and the revision, the trial Court and the revisional Court, respectively, have considered the question of commencement of trial or the stage of entertaining the application, but have not considered the propriety of the application and claim of the petitioner. However, by dismissing the application and the revision, both the Courts below have not committed any illegality. However, by dismissing the application and the revision, both the Courts below have not committed any illegality. The accused has no right to claim to be tried by special procedure. Consequently, I do not find any ground for interference or for direction or conversion of summon trial into warrant trial. The petition is, therefore, liable to be dismissed and it is hereby dismissed, in limine. LA. No. 1 stands disposed of. Petition dismissed.