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TMI Blog2016 (3) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... a discharge application in the aforestated sessions cases. By order dated 30.12.2014, the learned Sessions Judge, Gr. Bombay allowed the discharge application and consequently discharged him of the offences u/s. 120B, 364, 365, 368, 341, 342, 384, 302, 218 r/w. 201 of IPC. The said order was not challenged by the CBI, but was challenged by Rubabuddin, the brother of the deceased Shorabuddin, by filing Criminal Revision Application No. 413 of 2015, along with an application for condonation of delay being Cri. Application No. 355 of 2015. 3. By application dated 5.10.2015, said Rubabuddin had sought to withdraw the said revision application as well as the application for condonation of delay. The said application was allowed by this court by order dated 23.11.2015. Accordingly, the application for condonation of delay was disposed of as withdrawn. Consequently, the revision 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 inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by Rubabuddin Shaikh. The said application was dismissed by this court on merits by order dated 21.10.2015, inter alia holding that the applicant Rajesh Kamble was neither a victim nor an aggrieved person. It was further held that the said applicant had not demonstrated that his legal rights were impaired or that any harm, injury was caused him or likely to be caused due to withdrawal of the Application. It was therefore, held that the Intervenor had no legal right to intervene in the proceedings, and accordingly the application filed by Rajesh Kamble was dismissed. 8. It is true that the applicant had not referred to this order in the present application. However, the same by itself would not be a ground to reject the application, moreover when the applicant has not obtained any favourable order by suppressing the said order dated 21.10.2015. The decisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and this principal remains intact unless contra indicated by statutory provision. The learned Senior Counsel has urged that when the crime is against the society it is the primary duty of the State to initiate prosecution and continue the same. Relying upon the view taken by the Apex Court in Sheonandan Paswan v. State of Bhiar (1987) 1 SCC 288 (Justice Bhagwat & Justice Oza) which has been termed as minority judgment, he has submitted that the citizen who finds that the offence against society is being wrongly withdrawn, is entitled to oppose the withdrawal. The learned Senior Counsel for the applicant therefore submits that the application is maintainable. 13. Mr. Raju, the learned Sr. Counsel for the respondent no. 1 has further submitted that the order of discharge is not an interlocutory order and that the order is revisable under section 397 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as targeted only the respondent no. 1, which fact clearly shows malafides on the part of the applicant. 17. Mr. Raju, the learned Sr. Counsel for the respondent no. 1 has further submitted that the applicant was a member of the National Advisor Committee appointed by the rival political party, which fact has been concealed in the application, and the said fact coupled with the fact that the applicant has shown interest in the matter after a period of 10 years from the date of the alleged incident shows that the applicant lacks bonafides and that the application is politically motivated. 18. The learned Addl. PP Shri Singh and Shri Shinde for the CBI have also submitted that the applicant is not an aggrieved person and that Rubabuddin, who was the aggrieved person was permitted to withdraw the revision application, and hence the present application 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plementary chargesheets were filed before the Addl. Chief Metropolitan Magistrate, Mirzapur, Ahmedabad. By order dated 22.9.2012 the Honourable Supreme Court transferred the case to Mumbai. 22. The respondent no. 1 had filed a discharge application under section 227 of Cr.P.C. The same came to be allowed by order dated 30.12.2014. The CBI did not challenge the said order. Nonetheless, Rubabuddin Shaikh, the brother of the deceased Sorabuddin filed Criminal Revision Application No. 413 of 2015 challenging the order of discharge of the respondent no. 1. Filing of the application dated 5.10.2005 by Rubabuddin, seeking leave to withdraw the said revision application along with Criminal Application No. 355 of 2015 for condonation of delay, has led to filing of the present application under Section 482 of Cr.P.C. 23. Relying upon the decision 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 chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of the revisional powers. In such a situation, what is-the harmonious way out? In our opinion, a happy solution of this problem 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 of 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(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection. 56. It needs no emphasis that exercise of inherent power 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould 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 affidavit, sought leave to withdraw the revision application as well the application for condonation of delay. Since said Rubabuddin was not represented by an advocate, no order was passed on the said application on the said date. On 6.10.2015 said Rubabuddin had remained present alongwith his counsel and had once again sought leave to withdraw the said applications. The counsel for Rubabuddin had also stated that Rubabuddin had expressed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complaint, by necessary implication the general principle gets excluded by such statutory provision." 33. These principles have been reiterated in Subramanian Swamy (2012) 3 SCC 64 (supra) in following words: "The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the court in order to set the criminal law in motion against a corrupt public official. The right of access, a constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindiction of personal grievance of that citizen 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection the Apex Court has observed thus: " The administration of criminal justice in Indian can be divided into two broad stages at which the machinery operates. The first is the investigation of an alleged offence leading to prosecution and the second is the actual prosecution of the offender in a court of law. The jurisprudence that has evolved over the decades as assigned the primary role and responsibility at both stages to the State though we must hasten to add that in certain exceptional situations there is a recognition of limited right in a victim or his family members to take part in the process, particularly, at the stage of the trial The law, however, frowns upon and prohibits any abdication by the State of its role in the matter at each of the stages and, in fact, does 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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. 41. The 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. 42. 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 Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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