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2013 DIGILAW 846 (ALL)

ARUN KUMAR KAUSHIK v. STATE OF U. P.

2013-03-15

S.C.AGARWAL

body2013
JUDGMENT Hon’ble S.C. Agarwal, J.—This criminal writ petition has been filed with the following prayers : The petitioner is an accused in Sessions Trial No. 608 of 2005 under Sections 302, 307, 323 and 120-B IPC, P.S. Daurala, District Meerut (State/C.B.I. v. Arun Kaushik and others). An application under Section 91 Cr.P.C. paper No. 157 Kha was moved on behalf of the petitioner before Additional Sessions Judge/Special Judge (Anti-Corruption), C.B.I., Ghaziabad praying that G.D. of P.S. Daurala dated 15.1.2000 be summoned. Another application was moved on behalf of the petitioner before the trial Court under Section 311 Cr.P.C. for summoning six persons namely Miss Preeta Bhaduri, Smt. Purnima Chaterjee, S.I. Nek Ram Pal Singh, S.I. Megh Singh, Constable Clerk Biri Lal and Constable Clerk Manveer Singh as Court witnesses. The application under Section 91 Cr.P.C. as well as the second application under Section 311 Cr.P.C. were rejected by two separate orders dated 11.2.2013. Hence petition under Article 226 of the Constitution of India has been filed by the petitioner. 2. Heard Sri Anoop Trivedi, learned counsel for the petitioner and Sri Anurag Khanna, learned counsel for the C.B.I. A preliminary objection has been raised by learned counsel for the C.B.I. stating that an efficacious alternative remedy of filing an application under Section 482 Cr.P.C. is available to the petitioner and, therefore, this Court should not entertain a petition under Article 226 of the Constitution of India. 3. Per contra, learned counsel for the petitioner submitted that orders passed by the trial Court refusing to call documents and rejecting the applications under Section 311 Cr.P.C. and 91 Cr.P.C. are interlocutory in nature and revision against such orders is barred by Section 397 (2) Cr.P.C., as held by the Apex Court in Sethuraman v. Rajamanickam, 2009 (65) ACC 607. It was contended that when the remedy of revision is barred, the petitioner is at liberty to either file an application under Section 482 Cr.P.C. or to file a writ petition under Article 226 of the Constitution of India and he cannot be compelled to choose a particular remedy. 4. It was contended that when the remedy of revision is barred, the petitioner is at liberty to either file an application under Section 482 Cr.P.C. or to file a writ petition under Article 226 of the Constitution of India and he cannot be compelled to choose a particular remedy. 4. Learned counsel for both the parties have cited case laws in support of their respective contentions, which are as follows : Learned counsel for the petitioner relied upon a decision of the Apex Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 , wherein it was held in paragraph 26 as follows : “26. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court find that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.” In the aforesaid case, the Supreme Court was dealing with the question of quashing the proceedings as well as the summoning order passed by the Magistrate. Moreover, the Apex Court was not dealing with a matter relating to interlocutory orders. In the same judgment, in paragraph 22, the Apex Court observed as under : “22.........................................The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. ....................................” 5. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. ....................................” 5. Learned counsel for the C.B.I. relies upon a decision of the Apex Court in the matter of State of H.P. v. Pirthi Chand and another, (1996) 2 SCC 37 , wherein in paragraph 13 of the judgment, the Apex Court observed as under : “13. When the remedy under Section 482 Cr.P.C. is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available..................”. On a first glance, these aforesaid two decisions of the Apex Court may appear to be contradictory to a Layman, but that is not so. In Pepsi Food’s case (supra), though the Apex Court held that nomenclature of the case is not relevant, but it also said that when the exercise of powers would be under Article 227 or Section 482 of the Code, it may not always be necessary to invoke the provisions of Article 226. Similar view was taken in Pirthi’s case (supra) that when the remedy under Section 482 of the Code is available, the High Court should not exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. 6. In view of the aforesaid, it is clear that orders rejecting application under Section 91 Cr.P.C. and 311 Cr.P.C. are interlocutory orders and remedy of revision is barred by Section 397 (2) Cr.P.C. The Code of Criminal Procedure provides a remedy to the petitioner by means of an application under Section 482 Cr.P.C. by invoking inherent powers of the Court. Though powers under Section 482 Cr.P.C. are also to be exercised with great care and caution, as held by a Full Bench of this Court in H.K. Rawal v. Nidhi Prakash, 1989 (26) ACC 395. In view of the availability of remedy under Section 482 Cr.P.C., this Court should be very reluctant in invoking extraordinary powers conferred by Article 226 of the Constitution of India. In view of the aforesaid, I have arrived at a conclusion that in view of availability of efficacious remedy under Section 482 Cr.P.C., this Court will not interfere in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. In view of the aforesaid, I have arrived at a conclusion that in view of availability of efficacious remedy under Section 482 Cr.P.C., this Court will not interfere in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. The Revision is accordingly dismissed with the observation that the petitioner is at liberty to move an Application under Section 482 Cr.P.C. for redressal of his grievances, if so advised. ——————