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2017 DIGILAW 1178 (HP)

Heera Lal v. Subhash Chand

2017-10-17

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. A bench of Lok Adalat, on, anvil of statements recorded before it, by the legal representatives of deceased complainant and, on, anvil of joint statements of the accused, in statements whereof each echoed their volitional readiness to compound the offences borne in FIR No. 28/2011 of 16.04.2011 lodged with police station, Gagret, hence proceeded to dismiss as withdrawn case No. 19-11-12/14-11, titled as State of H.P. Vs. Subhash Chand and others. One Heera Lal, legal representative of injured, one, Dhan Devi upon whose person injuries were inflicted by the accused, assailed the order pronounced by the Bench of the Lok Adalat, by his, carrying a Criminal Revision therefrom, before the learned Additional Sessions Judge, (II), Una. His trite espousal for invalidating the pronouncement made by the Bench of Lok Adalat, was, grooved in the factum of the latter holding no jurisdictional competence, to, make an order for compounding the relevant offences, given some amongst them being non-compoundable. Secondarily, he contended before the learned Revisional Court, that, with Dhan Devi, upon whose person, injuries were inflicted, in the relevant occurrence, by the accused, no longer alive at the stage when the impugned order was pronounced by the bench of the Lok Adalat, hence, in consonance with the mandate enshrined in Section 320 (4) (b) of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.), provisions whereof stand extracted hereinafter:- “320. Compounding of offences.- (1)....................................... (2)........................................ (3)....................................... (4)(a).................................. (b) When a person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court compound such offence.” given his evidently being her legal representative, was enjoined to be summoned by the bench of the Lok Adalat, to, thereat make an apposite statement on behalf of his predecessor-in-interest, in respect of his also holding an apt volitional readiness, for thereupon the Bench of the Lok Adalat, proceeding to make a valid order for composition of the offences borne in the apposite FIR. Since, the aforesaid Heera Lal, the evident legal representative of one Dhan Devi, was in the relevant proceedings, not visibly, associated by the Bench of the Lok Adalat, nor he hence echoed his volitional consent before it, for thereupon any valid order being pronounced by the Bench of the Lok Adalat, for, composition of the offences borne in the apposite FIR, thereupon, the order pronounced by the Bench of the Lok Adalat, begetting infraction of the aforesaid mandatory statutory provisions, rendering it, hence, to be legally besmirched. The learned Revisional Court proceeded to dispel the contentions, of, one Heera Lal, on, the score that with statutory conclusivity being fastened upon the orders pronounced by the Bench of Lok Adalat, hence, dehors some of the offences constituted in the apposite FIR being not compoundable, thereupon, the relevant impugned order, being not, rendered legally inefficacious. Also it declared the criminal revision petition to be not maintainable before it, given the statutory judicial forum, of, “Lok Adalat” being not a Court inferior to the Revisional Court. 2. Before dwelling upon the efficacy of the aforesaid espousals, it is incumbent upon this Court, to also test the merit, of, the submissions addressed before this Court, by Mr. Ajay Sharma, learned counsel appearing for respondents No.1 to 8, submissions whereof, impinge upon the maintainability here-before of the instant petition, cast under the provisions of Section 482 of the Cr.P.C. Mr. Ajay Sharma, learned counsel in making vehement contentions before this Court, that with Section 397(2) of the Cr.P.C., creating an explicit statutory bar against the availments of revisional jurisdiction, for assailing, of, interlocutory orders, thereupon, availment of the provisions of Section 482 of the Cr.P.C., by the aggrieved, also suffering an alike express ouster, has laid dependence upon a judgment of the Hon'ble Apex Court rendered in a case titled as Amar Nath & others versus State of Haryana & others, reported in 1977 CRI. L.J. 1891, relevant paragraph No.3 whereof stands extracted hereinafter:- “3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-s. (2) of S. 397 of the 1973 Code the inherent powers contained in S.482 would not be available to defeat the bar contained in S. 397(2). While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-s. (2) of S. 397 of the 1973 Code the inherent powers contained in S.482 would not be available to defeat the bar contained in S. 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any 'new powers but preserves the powers which the High Court already possessed. A harmonious construction of Ss. 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S.397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of S.482 would not apply. It is well settled that the inherent powers of the, Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.” (p.1893) However, the ratio decidendi, of, the judgment borne in the aforesaid citation, does, on its incisive discernment, unravel, that the Hon'ble Apex Court, had, meted deference vis-a-vis the statutory interdictions against preferment of revision petitions for assailing interlocutory orders, thereupon, it concluded, of, the apposite statutory interdiction also concomitantly barring the aggrieved, from availing the remedy borne in Section 482 of the Cr.P.C. Nonetheless, the Hon'ble Apex Court had therein also pronounced that with the order impugned before it, not, falling within the genre of interlocutory orders, or hence its falling outside the express statutory bar, against, its being challenged through a revision petition, had, concluded that with the aggrieved hence holding an alternative remedy of assailing it, through, preferment of a revision petition before the competent Court, whereas, availment of a remedy constituted under Section 482 of the Cr.P.C., being a residuary remedy, thereupon, its being not available for exercise by the aggrieved. Consequently, the aforesaid citation, does not, for the reasons to be assigned hereinafter, hence, completely endorse the submission of Mr. Consequently, the aforesaid citation, does not, for the reasons to be assigned hereinafter, hence, completely endorse the submission of Mr. Ajay Sharma, that in the case law supra there being an absolute untrammeled bar, against, availment by the aggrieved, of, the provisions borne in Section 482 of the Cr.P.C, despite, Section 397(2) of the Cr.P.C., purportedly fastening an apposite statutory bar, against, availment of the remedy of revisional jurisdiction by the aggrieved, even from any order, though not, falling within the genre of interlocutory orders. The further reason, for making the aforesaid conclusion arises from the impugned order made by the Bench of Lok Adalat, being, subject to the hereinafter observations, hence, may not assailable by the aggrieved by his invoking the revisional jurisdiction of competent Courts, rather upon its, manifestly sequelling a gross abuse of process of law also for precluding miscarriage of justice, hence, may entitle the aggrieved to invoke the plenary inherent jurisdiction of this Court vested, in it, by the mandate of Section 482 of the Cr.P.C. 3. Mr. Ajay Sharma, learned counsel also relied upon a judgment of the Hon'ble Apex Court rendered in a case titled as Dharampal and others versus Smt. Ramshri and others, reported in 1993, CRI. L.J. 1049, relevant paragraph No.4 whereof stands extracted hereinafter:- “4. There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application filed against it was dismissed by the learned Sessions Judge. It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate. The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier. Let that be as it is. The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second revision application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr. R.No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. Admittedly the 1st respondent had preferred a Criminal Application being Cr. R.No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside.” (p..1051) to make an espousal, that, with the Hon'ble Apex Court, therein, construing invocation by the aggrieved, of the inherent jurisdiction vested in High Courts under Section 482 of the Cr.P.C., holding parity with besides being akin, to availment by the aggrieved, of revisional jurisdiction, whereas, with a second criminal revision petitions, remaining statutorily uncontemplated, thereupon, the order pronounced by the competent Courts, in, the exercise of revisional jurisdiction being unchallengeable, by the aggrieved, by the latter casting a petition under the provisions of Section 482 of the Cr.P.C. The aforesaid view is also propounded by the Hon'ble Division Bench of the Hon'ble Apex Court, in, a case titled as Deepti alias Arati Rai versus Akhil Rai and others, reported in 1995 SCC (Cri) 1020. 4. However, the efficacy of the aforesaid submissions addressed before this Court, by Mr. Ajay Sharma, stands obliterated, by a pronouncement made by the Hon'ble Apex Court, in a case titled as Prabhu Chawla v. State of Rajasthan and another, reported AIR 2016, SC, 4245. Since, the aforesaid pronouncement, made, by the Hon'ble Apex Court, stand rendered, by a three Judges bench of the Hon'ble Apex Court, thereupon, with the bench strength, rendering the aforesaid verdict, holding, a superior numerical strength vis-a-vis the Bench strength of the Hon'ble Apex Court, which rendered a judicial pronouncement in Dharmapal's case (supra), relied upon by Mr. Ajay Sharma, Advocate, thereupon, the view propounded by the Hon'ble Apex Court, in its, judgment rendered in Prabhu Chawla's case (supra), relevant paragraphs No. 5 and 6 whereof stand extracted hereinafter, hold a mighter legal clout also hold the apposite ratio decidendi vis-a-vis the pronouncements recorded by the Hon'ble Apex Court, in Dharampal's case (supra). Ajay Sharma, Advocate, thereupon, the view propounded by the Hon'ble Apex Court, in its, judgment rendered in Prabhu Chawla's case (supra), relevant paragraphs No. 5 and 6 whereof stand extracted hereinafter, hold a mighter legal clout also hold the apposite ratio decidendi vis-a-vis the pronouncements recorded by the Hon'ble Apex Court, in Dharampal's case (supra). Relevant paragraphs No. 5 and 6 of Prabhu Chawla's case (supra) read as under:- “5. Mr. P.K. Goswami learned senior advocate for the appellants supported the view taken by this Court in the case Dhariwal Tobacco Products Ltd. (supra). He pointed out that in paragraph 6 of this judgment Justice S. B. Sinha took note of several earlier judgments of this Court including that in R.P. Thaiur v. State of Punjab, AIR 1960 SC 866 ) and Som Mittal v. Govt. of Karnataka, AIR 2008 SC 1528 for coming to the conclusion that “only because a revision petition is maintainable, the same by itself, ………, would not constitute a bar for entertaining an application under Section 482 of the Code.” Mr. Goswami also placed strong reliance upon judgment of Krishna Iyer, J. in a Division Bench in the case of Raj Kapoor and Ors v. State and Ors, AIR 1980 SC 258 . Relying upon judgment of a Bench of three Judges in the case of Madhu Limaye v. The State of Maharashtra, AIR 1978 SC 47 and quoting therefrom, Krishna Iyer, J. in his inimitable style made the law crystal clear in paragraph 10 which runs as follows: “10. The first question is as to whether the inherent power of the High Court under Section 482stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. The State of Maharastra ( AIR 1978 SC 47 ) this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution. “would be to say that the bar provided in sub-section (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 can limit or affect the exercise of the 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. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction”. In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction”. In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court’s process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10 of AIR). “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.” I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court’s time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified.” 6. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified.” 6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante clause to state: “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.” A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. “abuse of the process of the Court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more.” We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable. 5. The limitation is self-restraint, nothing more.” We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable. 5. A reading of the hereinabove extracted paragraphs borne in Prabhu Chawla's case (supra), make, it abundantly clear (a) despite existence of statutory interdictions against preferment of a petition before the High Courts under the provisions of Section 397(2) of the Cr.P.C., especially with a challenge carried therein qua interlocutory orders, thereupon, not ousting the plenary inherent jurisdiction vested under Section 482 of the Cr.P.C, especially with evident display, of criminal proceedings being legally vitiated or being without jurisdiction, (b) thereupon, for remedying them, High Courts, within, the domain of Section 482 of the Cr.P.C., for undoing initiation of legally inefficacious proceedings hence holding the apt jurisdiction, more so, when it would prevent abuse of process of law also would secure the ends of justice; (c) the amplitude of the non substante clause existing in the opening lines of Section 482 of the Cr.P.C., hence, vesting the High Courts, with, a plenary jurisdiction to entertain petitions cast within its provisions, especially when it would facilitate blunting of abuse of processes of law also would secure ends of justice and (c) exercise of jurisdiction by High Courts under Section 482 of the Cr.P.C., being unbounded, with, respect to orders, not, falling within the genre of interlocutory orders nor earlier thereto preferment before the learned Sessions Court, of revision petitions, by, the aggrieved, casting, any absolute bar, against availment of remedy, by him, under the provisions of Section 482 of the Cr.P.C., availment whereof preponderantly being a residuary remedy, available for recourse by the aggrieved concerned, when no other remedy is available. The aforesaid view is also in consonance with the earlier therewith view recorded by the Hon'ble Apex Court in a case titled as Krishnan and another versus Krishnaveni and another, (1997)4 SCC 241 . 6. Having rejected the submission addressed by Mr. Ajay Sharma, Advocate, with respect tot he instant petition cast under the provisions of Section 482 of the Cr.P.. being not maintainable before this Court, yet rejection thereof, does not, for hereinafter reasons, hold any binding efficacy. 6. Having rejected the submission addressed by Mr. Ajay Sharma, Advocate, with respect tot he instant petition cast under the provisions of Section 482 of the Cr.P.. being not maintainable before this Court, yet rejection thereof, does not, for hereinafter reasons, hold any binding efficacy. Hereinafter it is necessary also to initially make a determination vis-a-vis the legality of the concurrent orders pronounced, respectively, by the Bench of the Lok Adalat and by the learned Revisional Court, especially when one Heera Lal, the evident legal representative, of, one Dhan Devi upon whose person injuries were inflicted by the accused, standing evidently not associated in the proceedings, occurring before the Bench of Lok Adalat nor his, thereupon, making any affirmative statement revealing his volitional readiness to compound the offences borne in the apposite FIR. The evident non participation of Heera Lal, the legal representatives of deceased injured Dhan Devi, despite his association in the relevant proceedings being statutorily peremptory, does visit, the concurrent orders made by the Bench of Lok Adalat and by the Revisional Court, to be, infected with a pervasive vice of each openly flouting the mandate of the provisions of Section 320(4)(b) of the Cr.P.C. 7. Be that as it may, even if the Lok Adalat is a statutory adjudicatory forum also when it may be stricto sensu construable to be a Court not inferior to the Revisional Court, whereas, with its evidently being a court inferior to the Revisional Court, would facilitate the latter, to, in the exercise of jurisdiction vested in it under Section 397(2) of the Cr.P.C., to pronounce qua the legality of the apposite orders, hence, thereupon the learned Revisional Court appears to be correct in dismissing the criminal revision petition, on the trite score of its being not maintainable before it. However, the learned counsel appearing for the petitioner has contended with vigour, of the jurisdictional infirmities vis-a-vis non maintainability vis-a-vis the criminal revisional petition before the learned Revisional Court, standing cured, by the petitioner preferring here-at the instant petition cast under the provisions of Section 482, Cr.P.C., importantly when the sweep of the statutory clout of 482 of the Cr.P.C., is expansive enough, to undo the legal mischief, done by the Bench of Lok Adalat. For the reasons assigned hereinafter, the aforesaid submission is rudderless (a) since the purported illegal order made by the Bench of Lok Adalat, remains uncontemplated in any of the provisions borne in the Cr.P.C. or in the provisions borne in the relevant statute, whereunder Lok Adalat, is envisaged to be, a Court inferior to Revisional Courts, contemplated in the Cr.P.C., whereas, exercise of revisional jurisdiction by competent Courts, being, exerciseable vis-a-vis Courts inferior to the Revisional Courts, (b) thereupon, with the Bench of the Lok Adalat, hence, being not a Court inferior to the Revisional Court, any exercise of jurisdiction by the latter, for testing the legality of the orders rendered by the Bench of Lok Adalat, being wholly beyond the domain of the revisional jurisdiction of the Revisional Court. (c) With Section 482 of the Cr.P.C., being also obviously borne in the very same statute wherein Section 397 of the Cr.P.C., is also embodied, thereupon, the exercise of jurisdiction vested in High Courts, under Section 482 of the Cr.P.C., necessarily warranting, (d) prior thereto impugned pronouncements being validly made within the jurisdictional competence, of Revisional Courts also the orders assailed, through, a petition cast under the provisions of Section 482 of the Cr.P.C., being rendered, with Revisional Courts holding jurisdiction to make a verdict upon merits of apposite revisional petitions, (e) theirs being statutorily maintainable before them, (f) whereas, for the aforesaid reasons, the revisional Court holding, no, statutory jurisdiction to test the legality of the orders made by the Bench of the Lok Adalat, begets, as a natural corollary, an inference of even the availment of remedy by the aggrieved of the jurisdiction vested in this Court, under Section 482 of the Cr.PC., being both inappropriate also it being not exercisable by this Court. (g) The order rendered by the Bench of the Lok Adalat was assailable by the aggrieved by his directly therefrom motioning this Court under Section 482 of the Cr.P.C.,; (h) The order of the Revisional Court, wherein, it had aptly concluded that it holds, no, jurisdictional competence to decide it, when hence is not wanting in legal efficacy, thereupon, it would not be befitting to reverse it. (i) the order recorded by the learned Revisional Court is affirmed and maintained only in respect of the criminal revision petition being, not, jurisdictionally maintainable before it and (j) the legality of the orders made by the bench of Lok Adalat is open to challenge by the petitioner, by his availing an appropriate befitting remedy before the appropriate Court. The instant petition stands disposed of with the aforesaid directions. All pending applications also stand disposed of. No costs.