Jharkhand High Court

Amit Kumar Sarawgi @ Amit Sarawgi vs The State Of Jharkhand on 6 February, 2025

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P. (Cr.) No.899 of 2024
                                   ------

Amit Kumar Sarawgi @ Amit Sarawgi, aged about 47 yrs. S/o Late Ashok Sarawgi, R/o Sarawgi Sadan, Dhariadih Road, Whitty Bazar, P.S., Giridih (T), P.O. & Dist. Giridih.

                                                             ...          Petitioner
                                              Versus
            1. The State of Jharkhand

2. Daulat Ram Jain, S/o Late Panna Lal Jain, R/o 33 Shakespeare Sarani, P.O. & P.S. Shakespeare Sarani, Dist. Kolkata (W.B.).

                                                         ...            Respondents
                                                ------
             For the Petitioner          : Mr. Shailesh Kr. Singh, Advocate
                                           Mr. Abhijeet Kr. Singh, Advocate
             For the State               : Mr. Mr. Rajiv Ranjan, AG
                                           Mr. Shray Mishra, Advocate
                                           Mr. Vineet Kr. Vashistha, Spl.P.P.
             For the Resp. No.2          : Mr. Rajendra Krishna, Advocate
                                           Mr. Amit Sinha, Advocate
                                           Mr. Chunnu Kant, Advocate
                                           Mr. Shubham Mayank, Advocate
                                                ------
                                           PRESENT
                  HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-      I.A. No.1529 of 2025

                    Heard the parties.

2. Learned counsel for the petitioner submits that this interlocutory

application has been filed with a prayer to amend the Writ Petition (Cr.) by

inserting the words 'and Article 227' after the words 'Article 226' and before

the words 'of the Constitution of India' in the cause title of this Writ

Petition(Cr.) and the second prayer is made to challenge the order dated

08.12.2023 passed by the SDJM, Giridih by which the learned SDJM, Giridih has

reviewed/set aside the earlier order passed by the learned CJM, Giridih

transferring the Complaint Case No.3308 of 2023 under Section 192 of the Code

of Criminal Procedure to SDJM, Giridih. It is next submitted that the change in

cause title regarding the provision of law will in no way change the nature and

character of this Writ Petition (Cr.). Hence, it is submitted that the same be

allowed.

3. So far as the second prayer of proposed amendment is concerned,

learned counsel for the petitioner submits that the petitioner was never aware

of the fact that in the main Complaint Petition No.3308 of 2023, the learned

CJM, Giridih vide order dated 24.11.2023 has exercised the power under

Section 192 of the Code of Criminal Procedure and was also not aware of the

fact that the order passed by the learned CJM, Giridih was revoked by the

learned SDJM, Giridih. Hence, some additional questions of law also arises as

to whether the said order dated 08.12.2023 is tenable in the eye of law in

exercise of the power of any review or revocation vested upon the learned

SDJM, Giridih. Hence, it is submitted that the second proposed amendment is

also required to be allowed.

4. Learned Advocate General appearing for the State relies upon the Five

Judges Special Bench of the Hon'ble Patna High Court in the case of Surendra

Singh & Others vs. The State of Bihar & Others reported in 1990 SCC OnLine

Pat 246 para-23 of which reads as under:-

"23. Accordingly, I am of the view:--

(i) Judicial orders passed by the criminal courts are amenable to the jurisdiction of the High Court under Article 227 of the Constitution.

(ii) Where appeals or revision applications or applications under section 482 of the Code are maintainable before this Court for setting aside such orders there is no question of exercise of power under Article 227.

(iii) Where appeals or revision applications or applications under section 482 of the Code cannot be entertained by this Court for setting aside such orders, power under Article 227 can be exercised in exceptional cases.

(iv) Where petitioner has already invoked the revisional jurisdiction of the Sessions Judge under section 397 of the Code and his second revision application to this Court is barred Under section 397(3) it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of the superintendence is not meant to circumvent the statutory bar."

and submits that Hon'ble Special Bench has laid down the law as to

under which facts and circumstances, the power under Article 227 of the

Constitution of India can be exercised. It is next submitted by the learned

Advocate General that it has been categorically held in para-23(ii) of the

aforesaid judgment that inter alia where applications under Section 482 of the

Code of Criminal Procedure are maintainable before the High Court for setting

aside of an order/orders of criminal courts; there is no question of exercise of

power under Article 227 of the Constitution of India. It is then submitted by the

learned Advocate General that so far as the second prayer of this interlocutory

application regarding the order dated 08.12.2023 passed by the learned SDJM,

Giridih in Complaint Case No.3308 of 2023 is concerned, it is not any order of

review/setting aside the earlier order as claimed by the petitioner but in fact

the said order is in the interest of the justice as without there being any judicial

order that the case has been disposed of, a wrong entry was made in the

Centralized Information System (CIS) of the court concerned; apparently

because of clerical error by the concerned Bench Clerk. So, erroneous entry

made in the Centralized Information System (CIS) was not ordered by the

Judicial Officer in the case concerned. So, firstly, there is no illegality about the

same and if at all the petitioner is under the impression that there is any

illegality, the same can be challenged under Section 482 of the Code of Criminal

Procedure and since an application under Section 482 of the Code of Criminal

Procedure is maintainable, so, obviously there is no question of exercise of the

power under Article 226 or Article 227 of the Constitution of India as the

Hon'ble Full Bench of Patna High Court in the case of Ramesh Kumar Ravi @

Ram Prasad vs. State of Bihar & Others reported in 1987 PLJR 650 has already

held that judicial orders of a criminal court "stricto sensu" under the Code of

Criminal Procedure are not amenable to quashing by a writ of certiorari. Hence,

it is submitted that the order dated 08.12.2023 passed by the learned SDJM,

Giridih in Complaint Case No.3308 of 2023 is not amenable to the writ

jurisdiction of this court either under Article 226 or Article 227 of the

Constitution of India. Hence, it is submitted that the second prayer to amend

the Writ Petition (Cr.) ought not to be allowed.

5. Having heard the submissions made at the Bar and after carefully going

through the materials available in the record; so far as the prayer to amend this

Writ Petition by incorporating the words 'and Article 227' after the words

'Article 226' and before the words 'of the Constitution of India' in the cause

title of this Writ Petition is concerned, since the same in no way changes the

nature and character of this Writ Petition (Cr.). Accordingly, the same is

allowed.

6. Registry is directed to incorporate the words 'and Article 227' with red

ink after the words 'Article 226' and before the words 'of the Constitution of

India' in the cause title of this Writ Petition.

7. So far as the prayer regarding incorporating the proposed amendment at

para 13(b) as prayed for in this interlocutory application, with the purpose of

challenging the order dated 08.12.2023 passed by the learned SDJM, Giridih is

concerned, this Court, after perusal of the said order, is of the considered view

that the said order does not contain the words "Review/Set aside" and it is a

figment of imagination of the petitioner, which has been incorporated by the

petitioner in this interlocutory application sans any materials in the order sheet

concerned. As has rightly been submitted by the learned Advocate General,

what the learned SDJM, Giridih has done is that; as after an enquiry it was

found that without there being any judicial order, an entry was made in the

Centralized Information System (CIS) that the Complaint Case No.3308 of 2023

has been disposed of, though in fact the same was pending and apparently

because of the error made by the Bench Clerk concerned which the Bench Clerk

concerned has also admitted, in the report called for by the learned SDJM,

Giridih, hence, the learned SDJM, Giridih has passed the said order to revoke

the erroneous entry made in the Centralized Information System (CIS). It is

needless to mention here that the entry made in the Centralized Information

System (CIS) is not a judicial order in itself and it is only a reference to a

judicial order. So, when the erroneous entry without any judicial order to

support such entry has been made, the revocation of the same will not amount

to revocation/review/setting aside of any judicial order in any case.. So, even if

the petitioner is aggrieved by the said order, certainly, the same can be

challenged by filing an application under Section 482 of the Code of Criminal

Procedure. Since an application under Section 482 of the Code of Criminal

Procedure is maintainable. Therefore, in view of the judgment of the Hon'ble

Special Bench of the Patna High Court in the case of Surendra Singh & Others

vs. The State of Bihar & Others (supra), the power under Article 226 or Article

227 of the Constitution of India cannot be exercised, for quashing such an

order.

8. Accordingly, this Court is not inclined to allow the proposed amendment

at para 13(b) of this interlocutory application. Hence, the same is rejected.

9. This interlocutory application is allowed in part in respect of para-13(a)

as already indicated above.

10. This interlocutory application is disposed of accordingly.

(Anil Kumar Choudhary, J.)

1. Heard the parties.

2. This Writ Petition (Cr.) has been filed invoking the jurisdiction of this

Court under Article 226 and 227 of the Constitution of India with several

prayers.

3. Learned counsel for the petitioner submits that in view of counter-

affidavit filed by the respondents, the petitioner does not press the prayer

No.23(a) regarding the initiation of the criminal proceeding on the basis of the

Complaint Case No.3308 of 2023. Hence, the same is rejected as not pressed.

4. Learned counsel for the petitioner submits that the petitioner only

confines to the prayer No.(b) of para-23 of this Writ Petition which is for

issuance of an appropriate writ/order/direction commanding upon

respondent No.2 being the informant of Giridih Sadar Muffasil P.S. Case

No.393 of 2023 of the court of SDJM, Giridih, as although there is no

information/permission taken by him, being the Official Liquidator, appointed

by the adjudicating authority being National Company Law Tribunal, Kolkata

Bench, Kolkata in Insolvency Case No. CP(IB) No.1281/KB/2019; before filling

the said Complaint Case No. 3308 of 2023, as mandated under Section 33(5) of

the Insolvency and Bankruptcy Code, 2016, such filing of the said Complaint

Case No. 3308 of 2023 is illegal, being without any authority.

5. The brief facts of the case is that the respondent No.2 filed Complaint

Case No.3308 of 2023 in the court of Chief Judicial Magistrate, Giridih which

was made over to the learned SDJM, Giridih and the learned SDJM, Giridih has

referred the complaint to the police under Section 156(3) of the Code of

Criminal Procedure for registration of the case and to investigate and report

and on the basis of the same, Giridih Sadar Muffasil P.S. Case No.393 of 2023

has been registered involving the offences punishable under Sections

147/149/353/389/120B/420/417/467/468/471 of the Indian Penal Code and

only two persons namely the writ petitioner and one Tulsi Goswami in their

individual capacity have been arrayed as accused persons in the case.

6. Learned counsel for the respondent No.2 submits that the prior approval

of the adjudicating authority as envisaged under Section 33(5), proviso of the

Insolvency and Bankruptcy Code, 2016 is required inter alia in legal

proceedings to be instituted by the Official Liquidator appointment on behalf

of the corporate debtor but in this case, since offences were committed against

the respondent No.2 in person and not against the corporate debtor, so, the

prior approval of the adjudicating authority is not necessary for instituting the

complaint case, against two private individuals, who committed the offences

punishable under the penal provisions of the Indian Penal Code, for which the

complaint was instituted and the FIR was registered. Hence, it is submitted that

this Writ Petition (Cr.), being without any merit, be dismissed.

7. Having heard the submission made at the Bar and after carefully going

through the materials available in the record, it is appropriate to refer to

Section 33(5) of the Insolvency and Bankruptcy Code, 2016 which reads as

under:-

33. Initiation of liquidation.--

(5) Subject to Section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor:

Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. (Emphasis supplied)

8. A plain reading of Section 33(5) of the Insolvency and Bankruptcy Code,

2016 makes it abundantly clear that there is a requirement of the prior approval

of the adjudicating authority, only if a liquidator institutes any suit or legal

proceeding on behalf of the corporate debtor.

9. Now coming to the facts of this case, this is a case where the allegation

made by the respondent No.2- corporate debtor that the offences were

committed by two private individuals who have been arrayed as accused

persons in the complaint case in their individual capacity and such offences are

punishable under the penal provisions of the Indian Penal Code for which the

complaint and the FIR have been registered and complaint upon being referred

to police under Section 156(3) of the Code of Criminal Procedure, FIR has been

registered vide Giridih Sadar Muffasil P.S. Case No.393 of 2023.

10. Under such circumstances, this Court is of the considered view that there

is no justifiable reason to accede to the said prayer of the writ petitioner in

exercise of the power of this Court under Article 226 or Article 227 of the

Constitution of India.

11. Accordingly, this Writ Petition (Cr.), being without any merit, is

dismissed.

12. In view of disposal of this Writ Petition (Cr.), the interim relief granted

earlier vide order dated 14.11.2024 is vacated.

13. Registry is directed to intimate the court concerned forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 06th of February, 2025 AFR/ Saroj