9911796707
TMI Blog2016 (3) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... wed in Gian Singh and Mohit [ 2012 (9) TMI 1112 - SUPREME COURT ], the powers under Section 482 cannot be resorted to in view of the said specific provision of the code for the redressal of the grievance particularly when the aggrieved party had already assailed the said order in revisional jurisdiction of this Court. The Applicant had sought to invoke the power under section 482 of Cr.P.C. mainly on the ground that the Respondent No. 1 through powerful network of forces at his command has prevailed upon the Rubabuddin Shaikh to withdraw the revision application. The Applicant has alleged that the withdrawal appears to be suspicious, under threat, inducement and promise - It is no doubt true that the powers under sections 482 and 483 of the Cr.P.C. are wide. However, it is well settled that these powers should be exercised sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice or to prevent misuse of judicial mechanism or miscarriage of justice. In the instant case, Rubabuddin, the brother of the deceased who is an aggrieved party and at whose instance the crime was registered had by application dated 5.10.2015 which was supported by his af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has not demonstrated that his legal rights are impaired or any harm /injury is caused to him or is likely to be caused. The Applicant has thus not been able to demonstrate that his legal right has been invaded so as to give him locus standi to challenge the order. he Applicant who claims to be a socially responsible citizen has allegedly filed this application for preventing abuse of process of court. It is pertinent to note that though the alleged incident had occurred in the year 2005, and no case was registered against the respondent no. 1 and the other police officers, the applicant herein had not shown any interest to set the criminal law in motion. The said crime was registered only pursuant to the directions given by the Honourable Supreme Court in view of the letter of grievance made by Rubabuddin, the brother of the deceased. In the instant case, the State had not challenged the order of discharge. nonetheless the aggrieved person, Rubabuddin Shaikh, the brother of the deceased Shorabuddin had challenged the said order in revision application (st) 413 of 2015 which was filed along with the application for condonation of delay being application No. 355 of 2015. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion application was also disposed of. 4. The applicant had filed this application during the pendency of the withdrawal application dated 5.10.2015, filed by Rubabuddin Shaikh. The applicant claims that the crime being a gross case of custodial murder has caused violence, trauma, fear and loss not only to the interested parties, but also to the entire law abiding society. The applicant claims that though there is sufficient prima facie material to proceed against the respondent no. 1, the CBI did not challenge the discharge order which has resulted in abuse of process of law and gross failure of justice. The applicant claims that Rubabuddin, the brother of the deceased Sorabuddin, who had challenged the said order had sought to withdraw the revision application as well as the application for condonation of delay, and as such it was left to the concerned citizens to pursue the matter in order to ensure justice in the larger interest of the society. The applicant claims that withdrawal of the revision application by Rubabuddin appears to be suspicious, under threats, inducement and promise. The applicant, who claims to be a socially responsible citizen has thus filed this applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon by the respondent no. 1 are therefore distinguishable and not applicable to the facts of the case. Consequently, the application cannot be dismissed on the ground of suppression of material facts. 9. Shri S.V. Raju, the learned Sr. Counsel for the respondent no. 1 has also raised the issue of maintainability of this application as well as the locus standi of the applicant in filing the application under Section 482 of Cr.P.C. The learned Senior Counsel for the applicant as well as the learned Sr. Counsel for the respondent no. 1 have stated that since the issue of maintainability goes to the root of the matter, the same should be decided at the threshold. Hence both the learned Senior Counsels were heard on these preliminary objections raised by the learned Sr. Counsel for the respondent no. 1. 10. Shri Grover, the learned Sr. Counsel for the applicant has submitted that the learned Sessions Judge has discharged the respondent no. 1 by order dated 30.12.2014. The CBI had not challenged the discharge order, hence Rubabuddin, the brother of the deceased was compelled to file the revision application alongwith an application for condonation of delay. The learned Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cr.P.C. Relying upon the decision of the Apex Court in Mohit @ Sonu v. State of U.P. (2013) 7 SCC 789, the learned Sr. Counsel has submitted that the powers under Section 482 of Cr.P.C. cannot be resorted when there is specific provision in the code for the redressal of grievance of the aggrieved party. 14. The learned Sr. Counsel for the respondent no. 1 has submitted that though the criminal law can be set in motion by any person, the criminal law does not recognize the right of a third party or a stranger to the proceedings to participate in further proceedings and that this right is conferred only to the State and in some cases to the victims or to the aggrieved persons. He has placed reliance on the decision of the Apex Court in the case of Subramanium Swamy v. Raju (2013) 10 SCC 465, in Karanjit Singh v. Union of India (1992) 4 SCC 666, Sulochana Devi v. District Magistrate 1993 (OLR) 47. The learned counsel for the respondent no. 1 has further submitted that the decision in Shivanandan Paswan (supra) is a minority view of the Bench and cannot be relied upon, and to fortify this contention he has relied upon the decision of the Delhi high Court in Peoples Union for Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication is not maintainable. Relying upon the decision of the Apex Court in Abdul Basit alias Raju and Others vs. Mohd. Abdul Kadir Chaudhary Anr. (2014) 10 SCC 754, and Dalip Singh vs. State of U.P. Ors. (2010) 2 SCC 114, learned Senior Counsel Shri Anil Singh has submitted that the application under Section 482 is not maintainable at the behest of the applicant who is totally stranger to the proceeding. 19. I have perused the records and considered the submissions advanced by the learned counsels for the respective parties. The respondent no. 1 was one of the accused in the aforestated sessions cases pending before the Session Court, Gr. Bombay. The allegations against the respondent no. 1 in brief were that, during the period 2004 to 2006 when he was the Minister of State (Home), State of Gujarat, he and some of the police officers of Gujarat and Rajasthan entered into a criminal conspiracy, to nab and kill one Sorabuddin. It is alleged that said Sohrabuddin was killed on 26.11.2005 in a fake encounter at the instance of the respondent no. 1. Some days later, Kausarbi, the wife of Sorabuddin, was also killed and her body was burnt and disposed of in a river near village ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Apex Court in Dhariwal (supra) the learned Sr. Counsel Shri Grover has submitted that availability of an alternative remedy of filing the revision appliCation is not a bar for invoking jurisdiction under Section 482 of Cr.P.C. It may be mentioned here that in the case of Dhariwal the powers under Section 482 of Cr.P.C. were invoked to challenge the summons issued under Prevention of Food Adulteration Act/Rule. The said application was not entertained in view of availability of alternative remedy of filing a revision application under Section 397 of the Code. While setting aside the said order, the Apex Court held that : Undisputedly, 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. Kapoor vs. State of Punjab, to Som Mittal v. Govt. of Karnataka 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, wuld not constitute a bar for entertaining an application under Section 482 of the Code . 24. Section 482 Cr.P.C. spells out the inherent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(2) 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.... 26. In Gian Singh v. State of Punjab (2012) 10 SCC 303, the question before the Apex Court was whether the inherent power of the High Court could be invoked for quashing the criminal proceedings against an offender who had settled the dispute with the victim; in respect of the crime which was not compoundable under section 320 of the Code. A three Judge Bench of the Apex Court after analysing the previous decisions has reiterated as under : 53. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided. 27. In Mohit @ Sonu Anr. v. State of Uttar Pradesh Anr. (2013) 7 SCC 789 while considering the question whether the application under Section 482 of Cr.P.C. challenging the order of the Sessions Court passed under Section 319 of Cr.P.C. was maintainable, the Apex Court has held as under : So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that the inheren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed his desire to withdraw the revision application. Rubabuddin who was present in the court, upon being questioned, had reiterated that he was seeking to withdraw the application voluntarily and that he was not under pressure, threat or coercion from any person to withdraw the said applications. Despite the said statement, no order was passed on the withdrawal application as it was felt necessary to ascertain whether the withdrawal was voluntary. Once again on 20.10.2015 Rubabuddin remained present before the court along with his counsel and reiterated his desire to withdraw the said applications. He was heard in person in the chamber to ascertain whether his decision to withdraw the application was voluntary. Since said Rubabuddin did not appear to be in a physically fit condition, further time of one month was granted. The records reveal that on 23.11.2015 said Rubabuddin had remained present before the court and had once again reiterated his request to withdraw the application for condonation of delay. He had also made a statement that he did not want to file any application in future in respect of the subject matter of the revision application. In view of the said statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tizen but also the question of bringing orderliness in society and maintaining equal balance in the Rule of law. 34. In Sheonandan Paswan (supra) the main controversy was whether the prosecution launched against Dr. Jagannath Mishra is rightly allowed to be withdrawn, or whether the withdrawal was invalid. The minority view, expressed by Justice Bhagwati on the question of locus standi in respect of interpretation and scope of section 321 was as under: Now if any citizen can lodge a first information report of file a complaint and set the machinery of criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that the prosecution for an offence against the society is wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiator of criminal prosecution, he should be equally entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is launched is an offence against the society and not merely and individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not recognize the right of a third party/stranger to participate or even to come to the aid of the State at any of the stages. On merits the SLP was held to be maintainable as the adjudication that the Petitioner was seeking had implications beyond the case/proceedings. It was held that the interpretations of the provisions of Juvenile Justice Act would have effect on all juveniles, who may come in conflict with law-both in the immediate and near future. 38. In Simranjit Singham Karamjit Singh (supra) while considering the question whether a third party who is a total stranger to the prosecution culminating in the conviction of the accused, has any locus standi to challenge the conviction and sentence awarded to them, by invoking Article 32 of the Constitution, the Apex Court has reiterated that neither the provisions of the Code of Criminal Procedure, 1973 nor any other statute permits a third party stranger to question the correctness of conviction and sentence imposed by the court after the regular trial. 39. In Sulochana Devi (supra) the Petitioner who was not a party to the proceedings had invoked the powers of the High Court under section 482 of the Cr.P.C. to cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also pertinent to note that the respondent no. 1 was discharged by the order dated 30.12.2014. The CBI had not challenged the said order. The aggrieved person, Rubabuddin had also not filed any revision application within the period of limitation. Despite which the applicant, who claims to be a socially responsible citizen, had not taken any steps to challenge the said order. It is to be noted that one Shri Rajesh Kamble, who was also not a party to the proceedings had opposed the withdrawal application filed by Rubabuddin Shaikh, in his capacity of being an alert citizen . The said application was dismissed vide order dated 21.10.2015. The Applicant has shown interest in this matter only after the dismissal of the application filed by Rajesh Kamble. 43. It is also pertinent to note that several other accused in the said crime have also been discharged, but the applicant has not challenged the said orders, but has sought to challenge only the order whereby the present respondent no. 1 has been discharged. The social interest and responsibility proclaimed by the Applicant is thus restricted only to the relief sought against the Respondent No. 1 and does not even extend to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
