Ranjit Das @ Dr. Ranjeet Das, aged about 66 years, son of Late Radhendra v. …
Case Details
1 Cr.M.P. No. 1630 of 2019 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1630 of 2019 Ranjit Das @ Dr. Ranjeet Das, aged about 66 years, son of Late Radhendra Mohan Das, at present residing at B.M. Das Road, Patna, P.O. – Bankipur, P.S.- Pirbahore, District- Patna, Bihar Versus …... Petitioner 1. The State of Jharkhand 2. Anikant Pyarelal Ohdar, son of Ram Kishore Ohdar, resident of AT + P.O. and P.S.- Kamdara, District- Gumla, Jharkhand, PIN- 835227 ...... Opposite Parties For the Petitioners : Mr. Jay Prakash Jha, Sr. Adv. Mr. Sanjeev Thakur, Adv. Mr. Jay Prakash Jha, Sr. Adv. Mr. Aishwarya Prakash, Adv. For the State : Mr. Tarun Kumar , Addl. PP For the Opposite Party No. 2 : Mr. Sidhartha Roy, Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:-
Facts
Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this court under Section 482 of Cr.P.C. in order to quash the order of cognizance dated 16.02.2019 and the entire criminal proceeding arising out of complaint case no. 39 of 2018 corresponding to G.R. No. 143 of 2017, pending in the court of JMFC, Gumla. 3. The two points of law formulated by this court vide order dated 22.03.2023 on consideration, which reads as under : (i) Whether the pendency of a Criminal Revision against an order taking cognizance by a Magistrate on the ground that the Magistrate ought to have taken cognizance of some more offences as well, amounts to the order passed by a Magistrate taking cognizance, has not reached finality? (ii) Whether the pendency of a Criminal Revision before the Court of session, challenging the order of taking cognizance by the Magistrate, on the ground that the Magistrate ought to have taken cognizance of some more offences as well, will be a bar for exercising jurisdiction under 2 Cr.M.P. No. 1630 of 2019 Section 482 Cr.P.C. by the High Court in respect of prayer for quashing the cognizance order of the Magistrate taking cognizance for some of the offences and the entire criminal proceeding? 4. The facts of the case sans unnecessary details as is relevant so far as, the two points of law to be answered is that the petitioner herein is an accused person of Complaint Case No. 39 of 2018 pending the court of JMFC, Gumla which has arisen out of protest petition which was filed after final report by the police in the connected police case being G.R. case 143 of 2017 and as the police in the final report did not send up the petitioner for trial. The Opposite Party No. 2, herein is the complainant of that Complaint Case No. 39 of 2018. Learned Magistrate, vide order dated 16.02.2019 in Complaint case no. 39 of 2018, found the prima facie case for the offence punishable under Section 385 IPC, made out against the accused. The Opposite Party No. 2, first challenged the said order by way of filing Criminal Revision No. 12 of 2019, in the court of learned Sessions Judge, Gumla contending therein that the learned Magistrate, ought to have taken cognizance for the offence punishable under Sections 406 and 420 of IPC as well. Thereafter, the petitioner of this Criminal Miscellaneous Petition, filed this Cr.M.P. invoking jurisdiction of this court under Section 482 Cr.P.C. with a prayer to quash the entire criminal prosecution and order taking cognizance dated 16.02.2019 passed in Complaint Case No. 39 of 2018 / G.R. No. 143 of 2007 of the court of learned JMFC, Gumla. 5. So far as the first point of law is concerned, it is fairly submitted by learned senior counsel for the petitioner that had the revision been maintainable against the order taking cognizance by learned Magistrate, then it would not have reached finality but as the Criminal Rev. no. 12 of 2019 before learned Sessions Judge, Gumla which is now pending before learned Additional Sessions Judge, Gumla, is against the order taking cognizance being an interlocutory order, hence, the revision is not maintainable and as such the order taking cognizance has reached finality because 3 Cr.M.P. No. 1630 of 2019 filing of a Criminal Revision, which is not maintainable is inconsequential. 6. In support of this contention that the order taking cognizance is
Legal Reasoning
21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] by contradistinguishing a final order and an interlocutory lays down the principle that an order. This decision intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind—an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his 4 Cr.M.P. No. 1630 of 2019 or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue. 22. The view expressed in Amar Nath [Amar Nath v. State of Haryana, (1977) 4 SCC 137 : 1977 SCC (Cri) 585] and Madhu Limaye [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] was followed in K.K. Patel v. State of Gujarat [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 : 2001 SCC (Cri) 200] wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: (K.K. Patel case [K.K. Patel v. State of Gujarat, (2000) 6 SCC 195 : 2001 SCC (Cri) 200] , SCC p. 201, para 11) “11. … It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana [Amar Nath v. State of Haryana, (1977) 4 SCC 137 : 1977 SCC (Cri) 585] , Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] , V.C. Shukla v. State [V.C. Shukla v. State, 1980 Supp SCC 92 : 1980 SCC (Cri) 695] and Rajendra Kumar Sitaram Pande v. Uttam [Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134 : 1999 SCC (Cri) 393] ). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.” 38. The Criminal Procedure Code is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) CrPC is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 CrPC is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Criminal Procedure Code or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Criminal Procedure Code restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues.” (emphasis supplied) and submits that the order taking cognizance is an intermediate order, hence, the revision is maintainable, as has been categorically stated by the Supreme Court of India, in para 38 in 5 Cr.M.P. No. 1630 of 2019 the case of Girish Kumar Suneja vs. C.B.I.(supra), therefore, in view of the pendency of the Criminal Revision, the order taking cognizance has not yet reached to finality. 8. Having heard the submissions made at the Bar and after going through the judgment of the Hon’ble Supreme Court of India in the case of Girish Kumar Suneja vs. C.B.I. (supra), this court has no hesitation in holding that the order taking cognizance is an intermediate order, hence, the Criminal Rev. No. 12 of 2019 filed by the O.P. No. 2, before filing of this Criminal Miscellaneous Petition, is maintainable and since the criminal revision is maintainable and admittedly pending before learned Sessions Judge, the order taking cognizance by the learned Magistrate, has not reached finality. Hence, the point of law no. 1 that “Whether the pendency of a Criminal Revision against an order taking cognizance by a Magistrate on the ground that the Magistrate ought to have taken cognizance of some more offences as well, amounts to the order passed by a Magistrate taking cognizance, has not reached finality”, is answered in the affirmative. 9. So far as the 2nd point of law as formulated, that “Whether the pendency of a Criminal Revision before the Court of session, challenging the order of taking cognizance by the Magistrate, on the ground that the Magistrate ought to have taken cognizance of some more offences as well, will be a bar for exercising jurisdiction under Section 482 Cr.P.C. by the High Court in respect of prayer for quashing the cognizance order of the Magistrate taking cognizance for some of the offences and the entire criminal proceeding” is concerned, relying upon the judgment of the Hon’ble Supreme court of India in the case of Prabhu Chawla v. State of Rajasthan reported in AIR 2016 SC 4245 , para 6 of which reads as under :- “ 6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482, Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante clause to state: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. "abuse of the process of the Court or 6 Cr.M.P. No. 1630 of 2019 other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more." We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482, Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable.” and also upon the judgment of the Hon’ble Supreme court of India in the case of Vijay v. State of Maharashtra reported in AIR 2017 SUPREME COURT 397, para 8 and 9 of which reads as under :- “8. After hearing the counsel and also after perusing the impugned order, we are of the considered opinion that the order of the High Court has no legs to stand in view of the law laid down by this Court in Prabhu Chawla (AIR 2016 SC 4245) (supra). In the above referred case, in view of the divergent opinions of this Court in the case of Dhariwal Tobacco Products Ltd. (AIR 2009 SC 1032) (supra) and Mohit @ Sonu and Anr. v. State of Uttar Pradesh and Anr. (2013) 7 SCC 789 : (AIR 2013 SC 2248), the matter was placed before the three Judge Bench of this Court. The three Judge Bench took the view that Section 482 begins with a non-obstante clause to state "nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". As Section 397 of Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482, Cr.P.C. only to petty interlocutory orders. A situation is wholly unwarranted and undesirable. The three Judge Bench has confirmed the law laid down by this Court in Dhariwal Tobacco Products Ltd. (AIR 2009 SC 1032) (supra). 9. In view of the above settled law, mere availability of alternative remedy cannot be a ground to disentitle the relief under Section 482 Cr.P.C. and, apart from this, we feel that the learned Judge without appreciating any of the factual and legal position, in a mechanical way, passed the impugned order, which warrants interference by this Court. Accordingly, the order of the High Court is set aside and the matter is remanded to the High Court for reconsideration in the light of the settled legal position.” (Emphasis supplied) learned senior counsel for the petitioner submits that pendency of a Criminal Revision before the court of sessions, challenging the order taking cognizance, will not be a bar for exercise of jurisdiction under Section 482 of Cr.P.C. by the High Court in respect of the prayer for quashing the order taking cognizance. 10. Learned counsel for the O. P. No. 2, on the other hand submits that since the order taking cognizance has not reached its finality, 7 Cr.M.P. No. 1630 of 2019 certainly, the application under Section 482 of Cr.P.C., is not maintainable. 11. Having heard the rival submissions at the Bar in respect of the point no. 2, as this court has already held that in view of pendency of the criminal revision , the order taking cognizance has not reached finality, this court has no hesitation in holding that this application under Section 482 Cr.P.C. is not maintainable as the order of cognizance to be quashed in this case, has not yet reached the finality but the petitioner can file an application under Section 482 Cr.P.C. invoking the jurisdiction of this court, if and when the cognizance order passed against him by learned Magistrate, reaches finality. The 2nd question of law is answered accordingly. 12. In view of answer to the above two questions, since the order taking cognizance, which is under challenge, in this Cr.M.P., has not yet reached finality, this Cr.M.P. is dismissed at this stage being not maintainable, having been filed against the order which has not reached finality. 13. In view of dismissal of this Cr.M.P., the interim order passed earlier, stands vacated. High Court of Jharkhand, Ranchi Dated, the 19th April, 2023 Smita /AFR (Anil Kumar Choudhary, J.)
Arguments
an interlocutory order, Mr. Jha, relied upon the judgment of the Hon’ble Supreme Court of India in the case of V. C. Shukla v. State through C.B.I reported in AIR 1980 SC 962, para 111 of which reads as under:- “111. If framing of a charge is an interlocutory order excluding the non obstante clause, no appeal would lie against such an order under s. 11 because there is a specific provision in sub-sec. (2) of Sec. 11 that except as provided in Section 11 (1) no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court. It is a well settled proposition of law that there is no inherent or common law right of appeal in a subject and the appeal is the creature of statute and therefore the right to appeal can only be enjoyed within the strictly demarcated limits conferring such right of appeal. (See Shankar Karba Jadhav v. State of Maharashtra, (1970) 2 SCR 227). The order under challenge being one passed by the Special Court set up under the Act, an appeal from such an order would only be competent if it squarely falls within Sec. 11 (1). The controversy is not that an appeal would lie even against an interlocutory order, but the contention is that the order framing charge is not an interlocutory order within the meaning of S. 11(1). Therefore, there is no gain- saying the fact that if the order sought to be appealed against is an interlocutory order, excluding the non obstante clause, by the main provision of S. 11 (1), the present appeal would be incompetent.” 7. Learned counsel for the Opposite Party No. 2, on the other hand, relies upon the judgment of the Hon’ble Supreme Court of India in the case of K.K. Patel and Another v. State of Gujarat and Another reported in (2000) 6 SCC 195, as also upon the judgment of the Hon’ble Supreme Court of India in the case of Girish Kumar Suneja v. CBI reported in (2017) 14 SCC 809, para 21, 22 and 38 of which reads as under:-