Kanwar Gajender Pal Singh vs State
1999 Latest Caselaw 264 Del

ORDER

N.G. Nandi, J.

1. In this petition under Section 482 of the Criminal Procedure Code (hereinafter referred to as "the Code") the petitioner prays for the setting aside of the order dated 3.12.1997 passed by the learned Additional Sessions Judge, Delhi in Criminal Revision Petition No.61/97 confirming the order dated 1.5.1997 passed by the trial Court rejecting the request by the petitioner (accused) for his acquittal/discharge on the ground that no progress has been made in the prosecution of the case titled State versus Kanwar Gajender Pal Singh under Sections 341/342/34 IPC pending in the Court of learned Metropolitan Magistrate.

2. It is suggested from the record that the petitioner (accused) moved an application before the trial Court praying for the discharge/acquittal relying on the directions in the case of "COMMON CAUSE" a Registered Society, through its Director Vs. Union of India 1996 J.C.C. page 503, by the Supreme Court.

The trial Court rejected the application seeking discharge/acquittal vide order dated 1.5.1997 which order was carried to the Sessions Court by way of Criminal Revision Petition No.61/97. The learned Additional Sessions Judge, Delhi, vide his order dated 3.12.1997 dismissed the revision petition and confirmed the order passed by the trial Court and it is thereafter that the petitioner in this petition has been invoking the inherent powers of this Court under Section 482 of the Code.

3. It is submitted by Mr.Dinesh Mathur, learned senior counsel for the petitioner that for the last more than six years charge has not been framed; that the petitioner is not at fault; that the other accused Malik has been discharged and the petitioner alone can not be prosecuted; that the petitioner appeared on 23.12.1991; that the charge has been framed on 1.5.1997; that the petitioner was granted exemption from personal appearance so there is no question of petitioner not remaining present in court; that there was no stay of proceedings granted by any superior court from 1991 to 1997 and the record and proceedings remained all throughout with the trial court. As against this, it is submitted by Ms.Santosh Kohli, learned A.P.P. for the State that the petitioner (accused) has also contributed to the delay in the framing of charge in the trial court inasmuch as he did not remain present on many adjournments in the trial court.

4. It may be noted at the outset that the application seeking discharge/acquittal has been dismissed by the trial Magistrate vide order dated 1.5.1997. Against the said order the petitioner (accused) moved Criminal Revision Petition No.61/97 in the Sessions Court, which came to be dismissed vide order dated 3.12.1997. Thus, the petitioner has availed the remedy available to him under sub-Section (1) of Section 397 of the Code.

Sub-section (3) of Section 397 of the Code provides that if an application under this Section {397(1)} has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them.

It is submitted by Mr.Mathur that even after unsuccessfully availing the remedy under sub-Section (1) of Section 397 of the Code the petitioner can still approach the High Court invoking the inherent jurisdiction under Section 482 of the Code.

In the case of Madhu Limaye Vs. State of Mahrashtra while considering the provision contained in Section 397(2) and the inherent powers of the High Court to quash an inter-locutory order under Section 482 of the Code, the Supreme Court enunciated the following principles in relation to the exercise of the inherent powers of the High Court :-

1. that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

2. that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice;

3. that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

5. As pointed out above, sub-Section (3) of Section 397 of the Code suggests that as the High Court and the Sessions Court have been given the concurrent powers, it has been provided that if any application has been made by a party either to the Sessions Court or to the High Court, no further application shall be entertained by either of them. One of the principles enunciated in the case of Madhu Limaye Vs. State of Maharashtra (supra) suggests that the powers under Section 482 of the Code in relation to the inter-locutory orders could not be exercised as against the express bar of law engrafted in any other provision of the Code. The petitioner having resorted to sub-Section (1) of Section 397 of the Code by approaching the Sessions Court by way of Criminal Revision Petition No.61/97, the express bar contained in sub-Section (3) of Section 397 of the Code would come into play. There could be no dispute with the proposition of law that even in relation to inter-locutory orders, the bar contained in sub-Section (2) of Section 397 of the Code would not affect the inherent powers of the High Court under Section 482 of the Code to quash an inter-locutory order as enunciated in the case of Madhu Limaye Vs. State of Maharashtra (supra).

6. The petitioner has incorporated the order sheets pertaining to dates 14.10.1997, 8.12.1997, 22.12.1997 and 5.3.1998. It may be recalled that the charge was framed by the trial court on 1.5.1997 against the petitioner. I have perused the order dated 1.5.1997 by the trial Court and the order dated 3.12.1997 passed by the Sessions Court in Criminal Revision Petition No.61/97. It is suggested therefrom that the challan is filed on 24.12.1991 and that the petitioner was absent on 1.12.1994, 12.10.1995, 18.4.1996, 5.5.1996, 1.11.1996, 29.1.1997 and attended the court on 20.7.1992, 31.5.1993, 22.12.1993, 2.3.1994, 20.5.1994, 1.12.1994, 6.3.1995, 18.7.1995, 12.10.1995, 9.3.1996, 8.10.1996, 25.2.1997, 10.3.1997 and 30.4.1997; that on 22.12.1993, 20.5.1994 and 18.7.1995, learned Judge concerned was on leave and the cognizance against the accused was taken on 31.5.1993. It will be seen from the above that the pendency of the proceedings against the petitioner can also be attributed to the petitioner-accused since he absented on number of adjournments which also atleast partly contributed to the delay in the disposal of the proceedings. It may also be appreciated that besides the petitioner-accused, there was other accused also, who had to put in appearance on 10.3.1997 though he was summoned on 31.5.1993. In view of these facts, the principle laid down in the case of "Common Cause", a registered Society through its Director versus Union of India would not be of any assistance to the petitioner-accused in securing discharge/acquittal as contended by Mr.Mathur.

7. Mr.Mathur, relying on the decision in the case of Ms. Neelam Vs. Commissioner of Police & Others. 1993 (2) C.C. CASES p:429 (HC) has contended that there are no restrictions or limitation on the powers of the High Court to exercise jurisdiction under Section 482 of the Code for quashing the FIR to undo injustice. There can be no disagreement with this proposition of law that the powers of the High Court in a petition under Article 226 of the Constitution of India read with Section 482 of the Code to issue a prerogative writ for quashing the FIR or criminal proceedings to undo injustice is not affected or taken away but the exercise of powers has to be with circumspection.

8. Apart from what has been observed in the earlier paragraphs as regards sub-Section (1) and (3) of Section 397 of the Code, considering the facts, otherwise also I do not regard this to be a fit case for exercise of powers under Section 482 of the Code since the powers under Sections 482 of the Code have to be exercised very sparingly.

9. The above discussion would reveal that the petition is liable to be dismissed. Order accordingly.