9911796707
TMI Blog1977 (2) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure, 1973 (herein called 'the Code'). The Magistrate after considering the averments made in the complaints, directed issue of summonses to the petitioners. The petitioners thereupon filed the above-said petitions in this Court under section 482 of the Code and also under Article 227 of the Constitution of India, for quashing the complaints filed against them, amongst others, on the ground that some of them were not the directors of the Delhi Cloth and General Mills Company Limited on the date the alleged offences were stated to have been committed. Other contention raised is that there was no prima facie case against them under section 17 read with sections 7 and 16 of the Act in that they were not in charge of the day-to-day business of the Company and were not in any way responsible for the sale of articles which were allegedly found to be adulterated. (3) M. R. A. Ansari J (as he then was) before whom the said petitions came up for hearing, noticing that though in Sant Lal Nagrath v. Krishan Lal Suri and another, Cr. M. (M) 68 of 1975 (I-A), he had taken the view that the High Court cannot in exercise of its powers under section 482 of the Code interfere w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grath's case was cited to contend that this Court had no jurisdiction to exercise its inherent powers under section 482 of the Code because of the specific bar envisaged by section 397(2) of the Code prohibiting a revision petition being filed against an interlocutory order. V. D. Misra, J because of the apparent conflict in the two decisions, referred the question to be decided by a larger Bench. (6) In Cr. M.(M) 166 of 1976 the grievance of the petitioner, Shri M. L. Batle, is that the trial Court has framed the charge against him on the basis of a perfunctory order which indicates lack of application of judicial mind and further that the trial Court has acted illegally in taking cognisance on the report of police officer in a case in which the provisions of section 195 of the Code were applicable. The petitioner accordingly prays that the order dated 10th March, 1976, directing the framing of the charge against him and the charge framed be quashed. (7) In Cr. M.(M) 74 of 1975, the trial Court framed a charge under section 304-A of the Indian Penal Code against all the accused persons by its order dated 17th November, 1974. The petitioner impugnes the framing of the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent stage except by completing the whole process of law relating to trials. That being so, it was urged, the framing of a charge or issuing of a process under section 204 of the Code against an accused person amounts to a final order. The argument appears to be specious but is without any merit. The Code does not defined what is a 'final order' or an 'interlocutory order'. This aspect has been considered in a chain of authorities and it is now well-settled that an order which does not decide any matter in issue or put an end to the litigation between the parties cannot be said to be final order. In other words, an order which does not bind and affect the rights of the parties of its own force is not deprived of its interlocutory character. Framing of a charge cannot be said to be finally determining the matter in issue, setting at rest the controversy between the parties. It only formulates specifically as to what are the accusations against an accused person which he has to meet during the trial. In framing a charge a Magistrate only specifies the accusation against an accused person and communicates the same to him so that he may not be prejudiced in defending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be tried after the order, the order is not final. Further, an order even if it decides an issue or issues, however. cardinal the issue may be without finally determining the rights and liabilities of the parties was not final order. It was accordingly held that the order refusing to grant an interim injunction was not a final order, and order does not determine the rights and obligations of the parties in relation to the matter in suit. (17) The above-noted cases are civil cases but the principle for determining as to what is a final order or an interlocutory order is the same in both civil and criminal matters, as was held by their Lordships of the Federal Court in case S. Kuppuswami Rao v. The King Air 1949 F.C.I.(4). (18) Following the ratio of the above-cited cases a Division Bench of the Allahabad High Court in Bindbasni and others v. State of U.P. 1976 Cr. L.J. 1660(5), held that the test for determining a final or interlocutory nature of an order was one and the same both in civil as well as criminal cases. The test is whether or not the order in question finally disposed of the rights of the parties or left them to be determined by the Court in the ordinary way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, 1976 Cr. L.J. 1533(8). We are unable to accept this submission. What was observed in Smt. Nagawwa's case (supra) was that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and that he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It has to be borne in mind that in the above-cited case their Lordships were not considering the question as to what constitutes an interlocutory or a final order. The mere fact that at the stage of issuing process or framing a charge, the Magistrate has to exercise his discretion judicially would not rob the order of its interlocutory character. (23) Strong reliance on behalf of the petitioners was placed on case, Century Spinning Manufacturing Co. Ltd. and others v. The State of Maharashtra, , to contend that framing of a charge or issuing process under section 204 of the Code was conclusive of the rights of the parties at that stage and substantially affected the liberty of the person concerned. The said case is of no assistance to the petitions. The question under consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (26) A perusal of the above-cited judgment shows that their Lordships of the Supreme Court did not observe that either of these tests individually was determinative of the controversy. On the contrary they held that generally speaking a judgment or order which determines the principal matter in question is termed final. The test for determining the question of the final or interlocutory nature of the order was held to be whether the order finally determined the principal matter or not. The test No. 4 set out above as enumerated by the Supreme Court being one of the four tests adopted in some of the English decisions was not commented upon or approved. Reliance by learned counsel of the petitioners is misplaced. Indeed this aspect has been clarified by the Supreme Court in Criminal Appeal No. 44 of 1977, Parmeshwari Devi v. State, decided on 23rd November, 1976(11). (27) In view of our discussion above we hold that an order framing a charge or issuing a process against an accused is an interlocutory order being a procedural step and does not determine the principal matter in dispute. (28) This brings us to the other and the main question under consideration, namely, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the interlocutory order was a nullity in the eye of law the said section would not-bar the exercise of inherent power by the High Court in a deserving case. (31) Reliance was next placed on case, Changdeo Kishan Jadhav v. Chindya Jain and others 1976 Cr. L.J. 1293(14), decided by a Division Bench of the Bombay High Court. In that case on the report of the police the trial Court passed an order under section 145 of the Code. The petitioner feeling dis-satisfied with the order challenged the same before the High Court invoking the exercise of its inherent power. The High Court declined to interfere on the ground hat it was prima facie a finding of fact which did not involve any qulification of abuse of any process of Court or mis-carriage of justice and held that High Court will noi ordinarily interfere with such an order in exercise of its powers under section 482 of the Code. It was in this view of the matter that the Court observed that it was not proper to construe section 482 of the Code in such a way as to nullify the legislative bar to the entertainment of revision applications against the interlocutory orders in criminal proceedings and that the inherent powers were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court under article 227 of the Constitution of India or under section 482 of the Code the provisions of section 397(2) of the Code cannot be circumvented or by-passed. (35) A similar view was taken by a Division Bench of the Orissa High Court in case Rajnikanta Meheta v. State of Orissa 1976 Cri. L.J. 1674 (17). In that case the petitioner had been committed to the Court of Session to stand trial for an offence under sectiton 395 Indian Penal Code read with section 115, Indian Penal Code. The petitioner filed a petition in the High Court praying that the High Court in the exercise of its inherent powers under section 482 of the Code or the extraordinary powers under Article 226 or its supervisory powers under Article 227 of the Constitution of India should quash the proceedings. Rejecting the prayer it was observed that the inherent powers could not be invoked to do what the law on the subject otherwise expressly prohibits and that the inherent power was not intended to be exercised for the purpose of doing something which would be in conflict with the express provisions of the law envisaged by section 397(2) as such a step would defeat the intention of the legislature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anction of enacted law was considered in Ratilal Bhanji Mithani v. Assistant Collector of Customs, Bombay and another Air 1967 S.C. 1639(19). Their Lordship of the Supreme Court tracing the history and the scope of inherent power observed that from its very inception the High Court has possessed and en- joyed its inherent powers including the power to prevent the abuse of the process of any Court with in its jurisdiction and to secure the ends of justice. These powers inhere in the High Court and spring from its very nature and constitution as a Court of superior jurisdiction. All the existing powers of the High Courts were pre- served and continued by legislation from time to time. Further that section 561-A of the old Code was inserted in the Code by Act xviii of 1923 to obviate any doubt that these inherent powers had been taken away by the Code. In terms, the section did not confer any power, it only declared that nothing in the Code shall be deemed to limit or affect the existing inherent powers of the High Court. Subsequently, by section 223 of the Government of India Act it was enacted that the jurisdiction of the existing High Courts and the powers of the Judges thereof in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Bengal v. Mohan Singh and others, . (42) It is, however, to be borne in mind that the inherent power is to be used sparingly, only when it is necessary in the interest of justice to exercise the power. The injustice sought to be remedied should be of a grave character, clear and not of a doubtful character and if there exists no other provision in the Code by which the aggrieved party could seek the relief. (43) In Talab Haji Hussain v. Madhukar Purshottam Mondkar and another, , it was observed that the inherent power under section 561-A of the Code was to be exercised sparingly, carefully and with caution, only when such exercise was justified by the tests specifically laid down in that section. It was further observed that procedure must serve the higher purpose of justice and it is only when the ends of justice arc put to jeopardy that the inherent power could and should be exercised. The various contingencies calling for the exercise of the inherent power have been enumerated by their Lordships of the Supreme Court in R. P. Kapiir's case (supra) holding that in exercising its jurisdiction under section 561-A the High Court would not embark upon an enquiry as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court to secure the ends of justice in the exercise of its inherent power embraces the power to quash a charge or a process issued against an accused person. Can it be said that an accused person in a case where no charge is made out against him, has no remedy and must suffer the consequences of a long drawn out and perhaps futile litigation ' It would be a traversity of justice to allow a baseless charge to stand, and to go ahead with a specious and spitful proceedings knowing full well that the proceedings are baseless. The power to quash an untenable charge for securing the ends of justice must be deemed to inhere in the High Court. When the High Court is satisfied that an accused is being prosecuted without there being any material before the Subordinate Court for his prosecution it will be failing in its duty rather abdicating its functions if it did not interfere to stop patent injustice calling for instant redress. In such a case High Court is under an imperative obligation to interfere to prevent the harassment to which an accused would be subjected if prompt redress is not afforded to him. It is. however, to be borne in mind that the inherent power is not to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing sub-section (2) in section 397, in the statement of objects and reasons it was stated as follows :- AT present, the High Court can interfere in revision in respect of interlocutory orders also. When petitions are filed in this regard, the proceedings in the lower Court are in most cases stayed in the lower Court and this holds up matters until the disposal of the revision petition. It may be that at one stage it was considered that the facility of having a wrong or unjust order struck down by the High Court was a guarantee against even the slightest injustice at any stage of a criminal proceeding. But experience has shown, particularly during recent years, that this facility has been so extensively abused that it has become a major factor delaying disposal of criminal cases not only for months but for years. There are instances where cases have been held up for as long as five years by reason of the stay order during the pendency of a revision petition against some interlocutory order or the other. This facility is availed of mostly by the rich men, industrialists, corrupt officials and the like, who are able to delay disposal of cases against them almost indefinitely. Mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sound legal principles provided the exercise of this power does not conflict with the express intention of the legislature indicated in the other provisions of the Code. Such an extraordinary power is to be exercised only in a suitable case on satisfaction that the proceedings in the lower Court are an abuse of the process of the Court, calling for interference by the High Court, Indiscriminate or flagrant use of this power is to be avoided so that the provisions contained in section 482 may not become an instrument to be handed over to an accused person to short-circuiting a prosecution and bring about its sudden death . Inherent power is to be exercised for the purposes indicated in section 482 of the Code, namely, to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. As the section itself envisages no provision of the Code can limit the exercise of the inherent power. (50) This brings us to the question whether relief can be afforded to an aggrieved party in the exercise of the High Court's power under Article 227 of the Constitution. It is settled l ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
