Gujarat High Court
Chen Zhisin vs Newton Engineering And Chemical Ltd. ... on 7 February, 2024
NEUTRAL CITATION
R/SCR.A/2735/2016 JUDGMENT DATED: 07/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO.
2735 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy of
3 NO
the judgment ?
Whether this case involves a substantial question of
4 law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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CHEN ZHISIN & 4 other(s)
Versus
NEWTON ENGINEERING AND CHEMICAL LTD. THRO'
MANISHA PATEL & 1 other(s)
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Appearance:
HARDIK A SHAH(8217) for the Applicant(s) No. 1,2,3,4,5
MR MIHIR H PATHAK(5261) for the Applicant(s) No. 1,2,3,4,5
MR. ALKESH N SHAH(3749) for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
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Date : 07/02/2024
ORAL JUDGMENT
1. Assailing the order dated 21.09.2015 passed in C.C. No. 46764
of 2015 on the file of 8th Additional Civil Judge and Judicial
Magistrate First Class, Vadodara whereby, the learned Magistrate
has taken cognizance of offence against the petitioners for the
offence punishable under Sections 406 and 114 of the Indian Penal
Code, 1860 (IPC) and issued process under Section 204(4) of the
Criminal Procedure Code, 1973 (CrPC), the instant petition has been
filed.
2. Heard, the learned counsel for the petitioners, the learned
counsel for the second respondent and the learned Additional Public
Prosecutor for the respondent - State.
3. The second respondent has filed the complaint against the
petitioners herein before the learned 8th Additional Civil Judge and
Judicial Magistrate First Class, Vadodara for the offences punishable
under Sections 406, 465, 467 and 114 of the IPC. The inquiry, as
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contemplated under Section 202 of the CrPC, was conducted by the
learned Magistrate. Eventually, the learned Magistrate has taken
cognizance of the offence against the petitioners, only for the
offence punishable under Sections 406 and 114 of the IPC and
issued process to the petitioners under Section 204(4) of the CrPC.
3.1 Aggrieved by the impugned order of taking cognizance of
offence against the petitioners under Sections 406 and 114 of the
IPC and in issuing the process under Section 204(4) of the CrPC, the
instant petition has been filed by the petitioners challenging the
legality and validity of the impugned order of taking cognizance of
the aforesaid offence.
4. Considering the order which is being challenged in this
petition, which is an order of taking cognizance of offence against
the petitioners and issuing the process against them, this Court is of
the considered view that this petition can be disposed of on the
ground of its maintainability, without touching the merits of the
case.
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4.1 Now, it is well settled law that an order taking cognizance of a
case instituted upon a complaint or an order refusing to take
cognizance of the offence, are construed as intermediate orders or a
quasi final orders, which is amenable to revisional jurisdiction under
Section 397(1) of the CrPC. It is not an interlocutory order
attracting the bar contained under Section 397(2) of the CrPC. Way
back, in the year 1977 itself, the Apex Court in the case of Amar
Nath and Others v. State of Haryana and Another, (1977) 4 SCC
137, has clearly, in no uncertain terms, held that, an order taking
cognizance of an offence against the accused is to be construed as an
intermediate order or a quasi final order against which, revision
under Section 397(1) of the CrPC is maintainable. It is also clarified
by the Apex Court in the said judgment that such an order is not an
interlocutory order attracting the express bar engrafted under Sub-
clause (2) of Section 397 of the CrPC.
4.2 The said law has been consistently followed by various High
Courts including this High Court. When the similar order of taking
cognizance of an offence by a Magistrate is challenged before this
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Court, this Court in the case of Shiv Shakti Industries through
Rajkumar Ramesh Chandra Agrawal v. State of Gujarat, 2023
LawSuit (Guj) 836, while relying on the aforesaid decision in Amar
Nath's case of the Apex Court and the subsequent judgment
rendered by a Three Judge Bench in the case of Madhu Limaye v.
State of Maharashtra, AIR 1978 SC 47, which followed the
decision in Amar Nath's case, wherein, it is held that the orders like
taking cognizance of offence or refusing to take cognizance of
offence and the orders like discharging the accused from the case in
the trial Court and refusing to discharge the accused where discharge
petitions are filed, are all intermediate orders or quasi final orders,
which are amenable to revisional jurisdiction under Section 397(1)
of the CrPC, which cannot be construed as interlocutory orders so as
to attract bar contained in Section 397(2) of the CrPC, as the said
orders would have an effect of terminating the main proceedings of
the case itself, once for all, and as it decides finally the main case
itself, they are construed to be quasi final orders or intermediate
orders against, held that revision is maintainable against order taking
cognizance of offence.
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4.3 Therefore, when the said orders are amenable to revisional
jurisdiction under Section 397(1) of the CrPC, the petitioners cannot
invoke the extraordinary jurisdiction of this Court under Articles 226
and 227 of the Constitution of India or the inherent powers under
Section 482 of the CrPC to challenge the said order without
preferring revision under Section 397(1) of the CrPC. In both viz.,
Amar Nath's case and in Madhu Limaye's case which is three
Judge Bench judgment, it is clarified that Section 482 of the CrPC
cannot be invoked to challenge such orders. The same law applies to
invoke Article 226 of the Constitution of India also.
4.4 The learned counsel for the petitioners has placed strong
reliance on the judgment of the Apex Court rendered in the case of
M/s. Godrej Sara Lee Ltd. v. The Excise and Taxation Officer -
cum - Assessing Authority and Others, 2023 LiveLaw (SC) 70,
wherein it is held that by mere existence of alternative remedy like
appeal or revision, there cannot be an absolute bar for entertaining
the writ under Article 226 of the Constitution of India. As per the
facts of the said case, it is not a case relating to maintainability of a
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writ petition under Article 226 of the Constitution of India or
maintainability of an application under Section 482 of the CrPC
challenging the order of taking cognizance of offence. It is a dispute
of civil nature relating tax laws. Relying on the decision in
Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and
Others, (1998) 8 SCC 1, wherein, it is held that, "even when
alternative remedy is available that a writ is maintainable at least in
four situations: i) where a writ seeks enforcement of any
fundamental right; ii) where there is violation of principles of
natural justice; iii) where the order or the proceedings are wholly
without jurisdiction; or iv) where the vires of an Act is challenged",
it is held, writ is maintainable even if alternative remedy is available.
Therefore, in view of the said law laid down in Whirlpool
Corporation (supra), when a writ is filed seeking any of the
aforesaid four remedies then it is held that, despite the fact that there
is alternative remedy, that the writ will be entertained. None of the
aforesaid four situation is existent in the present case. Therefore, the
aforesaid judgment relied upon by the learned counsel for the
petitioners has no application to the present facts of the case. The
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law laid down by the Apex Court in Amar Nath's case and by the
Three Judge Bench in Madhu Limaye's case, supra, still holds the
field which is direct on the point involved in this case and the same
being the law of the land, is to be followed and applied to decide the
maintainability of the present petition.
4.5 So, in view of the clear dictum laid down by the Apex Court in
the aforesaid two judgments of Amar Nath and Madhu Limaye
which was subsequently followed by this Court also in Shiv Shakti
Industries through Rajkumar Ramesh Chandra Agrawal (supra),
it is to be held inevitably that the present petition filed under Article
226 of the Constitution of India and Section 482 of the CrPC is
clearly unsustainable and not maintainable in law.
5. Resultantly, the petition is dismissed as not maintainable. Rule
is discharged. Interim relief, if any, shall stand vacated forthwith.
5.1 It is made clear that this petition is dismissed only on the
ground of its maintainability and this Court has not decided anything
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on merits of the case. The petitioners are at liberty to challenge the
impugned order by way of preferring the revision, if they so intend.
The time spent by the petitioners in this Court in pursuing this
petition, shall be excluded from consideration while computing the
period of limitation in filing the revision.
[ Cheekati Manavendranath Roy, J. ]
hiren
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