2012 (1) TMI 352 - HC - Indian Laws

Maintainability of petition - Misappropriation of Sales Tax Forms - Offence punishable u/s 406 IPC - Period of limitation for u/s 468(2)(c) CrPC for taking cognizance - whether the petitioners having availed of the remedy of revision should be allowed to take recourse to section 482 CrPC as a substitute for virtually initiating a second revisional challenge or scrutiny which is clearly barred U/s 397(3) CrPC? - HELD THAT - The issue regarding filing of petition before the High Court after having availed first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) CrPC laid statutory bar of second revision petition, the courts have held that High Court did enjoy inherent power under section 482 CrPC as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It was all to depend not only on the facts and circumstances of each case For the purpose of computing limitation, it is the date of the complaint that is material and not the date on which the cognizance come to be taken by the Magistrate and the process was issued against the petitioner. The subsequent stages such as examination of complainant and the witnesses, the consideration of the case, the preliminary inquiry etc. take considerable time and it would therefore, be unreasonable and irrational to compute the period of limitation from the date when the cognizance was taken or the process was issued. Furthermore, these processes are dependent on various factors including the time available to the court which is something over which the complainant has no control. It would, thus, be wholly untenable to hold that a complaint if presented within the period of limitation would be barred merely because a certain amount of time elapsed until the cognizance could be taken or the order of process could be passed. Since the complainant continued requesting the petitioner to return the file and it was not returned for two years, the complainant was compelled to file a complaint with the police on 30th October 1998. I do not find any merit in the submission that the complaint was time barred. In view of the discussion and having seen that the present case was at the stage of framing of charges and that both the courts below have appreciated the allegations against the petitioner and have formed a prima facie view of the framing of charges u/s 406 IPC. In view of entrustment and refusal to return the file, I do not find any infirmity or illegality in the impugned order. Not only that, the case does not fall within the parameters of invoking inherent and extraordinary jurisdiction u/s 482 CrPC or under Article 227 of the Constitution of India, even otherwise it does not call for any interference by this court on merits. Hence, the petition is hereby dismissed. Nothing in this order shall amount to expression of opinion on the merits of case.

Summary

Issues:
1. Maintainability of the petition under section 482 Cr.P.C. read with Article 227 of the Constitution.
2. Interpretation of section 397(3) Cr.P.C. regarding the bar on second revision petition.
3. Application of limitation period under section 468(2)(c) Cr.P.C. for offense under section 406 IPC.
4. Analysis of the ingredient of 'entrustment' in a criminal breach of trust case under section 406 IPC.

Issue 1: Maintainability of the petition under section 482 Cr.P.C. read with Article 227 of the Constitution:
The petitioner challenged the order of the Ld. ASJ upholding the decision of the Ld. MM to frame charges under section 406 IPC. The respondent objected to the maintainability of the petition, arguing that it was essentially a second revision petition barred under section 397(3) Cr. P.C. The court clarified that while the power of the High Court and the Court of Sessions in revision matters is concurrent, section 397(3) Cr.P.C. prohibits a second revision petition. However, the High Court can invoke inherent powers under section 482 Cr.P.C. and Article 227 of the Constitution in exceptional cases. The court cited various judgments to emphasize that such power should be exercised sparingly and only in cases of abuse of process, miscarriage of justice, or non-compliance with legal provisions.

Issue 2: Interpretation of section 397(3) Cr.P.C. regarding the bar on second revision petition:
The court clarified that section 397(3) Cr.P.C. aims to secure finality in revision proceedings and bars a second revision petition after an unsuccessful attempt in the Court of Sessions. The court highlighted that the High Court's inherent powers should only be invoked in exceptional circumstances, as laid down in previous judgments by the Supreme Court and High Courts.

Issue 3: Application of limitation period under section 468(2)(c) Cr.P.C. for offense under section 406 IPC:
The court analyzed the limitation period for offenses under section 406 IPC, emphasizing that the date of the complaint is crucial for computing the limitation period, not the date of cognizance. The court rejected the argument that the complaint was time-barred, considering the circumstances of the case where the accused refused to return the property despite requests, leading to the filing of the complaint within the limitation period.

Issue 4: Analysis of the ingredient of 'entrustment' in a criminal breach of trust case under section 406 IPC:
Regarding the element of 'entrustment' in a criminal breach of trust case, the court explained that entrustment does not require the technicalities of trust law but signifies a relationship where property is handed over to another with confidence. The court found that in the present case, entrustment was established as the accused took the property in good faith but failed to return it despite repeated requests. The court distinguished previous cases where the element of entrustment was lacking, leading to a different legal outcome.

In conclusion, the court dismissed the petition, finding no grounds for interference based on the legal analysis of the issues presented.